Dwelling House

In one minute

Section 23 of the Hindu Succession Act, 1956 once gave a special rule for the family dwelling house. A female class I heir could not ask for partition of it until the male heirs chose to divide their shares. She had only a right of residence.

The Hindu Succession (Amendment) Act, 2005 omitted section 23 with effect from 9 September 2005. The restriction is no longer in the Act.

Legal provision

• Section 23 (omitted): special provision respecting dwelling-houses. It was omitted by the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005), section 4, with effect from 9 September 2005.
• Section 17: for communities under marumakkattayam or aliyasantana law, section 23 was to be treated as omitted even before 2005.
• Section 24 (omitted): removed by the same Amendment (section 5).

Meaning and definition

A dwelling house here means the house in which the intestate lived, wholly occupied by members of the family. The old section applied only to intestate succession where the deceased left both male and female class I heirs. The Act's own text now keeps only the note that the section was omitted. The description of the old rule below comes from the Supreme Court's reading of it in Narashimha Murthy v. Susheelabai (1996).

• Family dwelling house of an intestate
  • PartitionA female heir could not claim it until the male heirs chose to divide their shares.
  • ResidenceShe had a right of residence in the house.
  • DaughterRight of residence only if unmarried, deserted by or separated from her husband, or a widow.
  • Since 9 September 2005Section 23 is omitted.

Detailed explanation

Step 1: when old section 23 applied

The section applied when a Hindu died intestate and left both male and female heirs of class I. It also required the property to include a dwelling house wholly occupied by members of the family.

Step 2: what it did

• A female heir had no right to claim partition of the house until the male heirs chose to divide their shares.
• She had a right of residence in the house.
• A daughter had the right of residence only if she was unmarried, was deserted by or separated from her husband, or was a widow.

Step 3: how the Supreme Court read it

In Narashimha Murthy v. Susheelabai, (1996) 3 SCC 644, the intestate left one son and three daughters. The Court set aside the decree for partition of the dwelling house. It held that the house was not partible at the instance of the female heirs until the sole male heir chose to divide his share. The female heirs kept their right of residence.

Step 4: omission in 2005

Section 4 of the Hindu Succession (Amendment) Act, 2005 omitted section 23 with effect from 9 September 2005. The same Amendment made a daughter a coparcener by birth under section 6. The Act no longer postpones a female heir's right to claim partition of a dwelling house.

Exceptions and special rules

• Only intestate succession: the old rule did not touch succession under a will.
• Only family-occupied houses: the house had to be wholly occupied by members of the family.
• Section 17: persons under marumakkattayam or aliyasantana law were to be treated as if section 23 had been omitted.

Don't confuse: right of residence and right of partition

Point	Right of partition	Right of residence
Meaning	Asking the court to divide the house	Living in the house
Female heir under old section 23	Postponed until the male heirs chose to divide	Given, with conditions for a daughter
Position after 9 September 2005	Section 23 no longer postpones it	Section 23 no longer applies

Common mistakes

• Saying that section 23 is still in force. It was omitted from 9 September 2005.
• Saying that a married daughter living with her husband had a right of residence under old section 23. The proviso gave a daughter that right only in the listed cases.
• Saying that the rule applied to a house inherited under a will. It applied only to intestate succession.

Apply it

Problem

A Hindu man in Rajahmundry dies in 1998 without a will, leaving a son and an unmarried daughter. The son lives in the family house. The daughter asks the court to divide the house.

Issue

Could the daughter claim partition of the dwelling house at that time?

Rule

Under old section 23, a female heir could not claim partition of a dwelling house wholly occupied by the family until the male heirs chose to divide. She had a right of residence.

Application

The son lives in the house and has not chosen to divide it. The daughter is unmarried, so she has a right of residence.

Conclusion

She could live in the house but could not claim partition then.

Leading case laws

• Narashimha Murthy v. Susheelabai, (1996) 3 SCC 644

  Facts. The intestate left one son and three daughters. The trial court ordered partition of the dwelling house.

  Principle. The Supreme Court set aside the partition decree for the house. Under section 23, female heirs could not claim partition until the sole male heir chose to divide his share. They kept their right of residence.

  Why it matters. It is the leading explanation of old section 23.

How to write this answer in the exam

Key points to remember

• Old section 23 applied to intestate succession with male and female class I heirs and a family-occupied dwelling house.
• Female heirs could not claim partition until the male heirs chose to divide, but had a right of residence.
• A daughter had the residence right only if unmarried, deserted or separated, or a widow.
• Narashimha Murthy v. Susheelabai (1996) 3 SCC 644 explained the section.
• Section 23 was omitted with effect from 9 September 2005.

Quick self-test

Related topics

• The Hindu Succession Act, 1956 as amended by the Hindu Succession (Andhra Pradesh Amendment) Act, 1986 & the Hindu Succession (Amendment) Act, 2005
• Succession to the property of Hindu Male and Female
• Daughter’s right to inherit ancestral property and impact of recent changes in law