4. Dwelling House under the Hindu Succession Act | Section 23 and Its Omission

This is the 4th post in Unit V — it deals with the dwelling house, which the syllabus lists as a separate topic in succession. The earlier posts mentioned its main rule only in passing.

The Problem This Topic Solves

When a Hindu man or woman died without a will, the family home was often the most valuable and the most sensitive asset. The Hindu Succession Act, 1956 gave daughters an equal share in the estate. However, a special rule in Section 23 limited a daughter's right in one particular asset, the family dwelling house. Students need to know what that rule said, why it was criticised and why it no longer exists.

Old Section 23: What It Said

Section 23 applied when a Hindu died intestate (without a will) leaving both male and female heirs of Class I, and the property included a dwelling house wholly occupied by members of the family. In that case:

• a female heir could not claim partition of the dwelling house until the male heirs chose to divide their own shares in it; but
• the female heir had a right of residence in the house.

The Right of Residence

The right of residence was conditional for daughters. A daughter could claim it only if she was:

• unmarried, or
• deserted by her husband or separated from him, or
• a widow.

A married daughter living comfortably with her husband had no right of residence in her parents' house. The rule worked against daughters, whose right depended on the wishes of the male heirs.

Judicial Treatment

In Narashimha Murthy v. Susheelabai (1996), the Supreme Court explained how Section 23 worked. A female heir's right to claim partition of the dwelling house did not arise until the male heirs chose to divide their shares. Till then she had the right to reside in it. A female heir already living in the house had a right to its continuance. If she was not living there, she could enforce her right of residence in a court of law.

Omission by the 2005 Amendment

The Hindu Succession (Amendment) Act, 2005, which came into force on 9 September 2005, omitted Section 23. The same Amendment made daughters coparceners by birth under Section 6. After the omission, a daughter has the same right as a son to ask for partition of the dwelling house. Her right no longer depends on the male heirs, and her marital status no longer affects her claim to the house.

Before and After at a Glance

• Old Section 23 applied to a Hindu intestate leaving both male and female Class I heirs and a dwelling house wholly occupied by family members.
• A female heir could not demand partition of that house until the male heirs divided their shares, but she had a right of residence.
• A daughter had the right of residence only if she was unmarried, deserted or separated from her husband, or a widow.
• Narashimha Murthy v. Susheelabai (1996) explained the section.
• Section 23 was omitted by the 2005 Amendment; a daughter's right is now equal to a son's.

• The old section applied only to intestate succession, not to succession under a will.
• The omission fits with the 2005 change making daughters coparceners by birth.
• Exam trap: when asked about the "present position", say Section 23 no longer exists and the old restriction on daughters has gone.

A Practical Example

A Hindu man dies without a will, leaving two sons and a married daughter, and a house in which the sons live with their families. Under old Section 23, the daughter could not demand partition of the house until the sons chose to divide it, and as a married daughter living with her husband she had no right of residence. After the 2005 omission, the daughter can ask for her share of the house on the same footing as her brothers.

Quick Revision Points

• Old Section 23: dwelling house wholly occupied by the family, intestate with male and female Class I heirs; partition postponed for the female heir; right of residence only.
• Daughter's right of residence: only if unmarried, deserted or separated, or a widow.
• Case: Narashimha Murthy v. Susheelabai (1996) 3 SCC 644.
• Omitted by the 2005 Amendment (in force 9 September 2005); daughters now have equal rights.