Holding

Section 4 of the Partition Act, 1893 is not applicable where the co‑sharer is a daughter (married or unmarried) who has not indicated an intention to transfer her interest to a stranger, and therefore the brother’s pre‑emption claim is not maintainable.

Summary

The case involved a dwelling house inherited by a brother (respondent) and his two sisters (appellants) who had received their shares by gift from their mother. The sisters filed a partition suit; during the proceedings the younger sister married and the brother sought to pre‑empt her share under Section 4 of the Partition Act, 1893. The High Court allowed the brother’s application, but the Supreme Court held that Section 4 does not apply because the sisters are not strangers to the undivided family and have not shown an intention to transfer their interest to an outsider. Consequently, the brother’s petition for pre‑emption was deemed premature and untenable. The Supreme Court set aside the High Court order and disposed of the appeal in favour of the sisters, emphasizing the purpose of preserving the unity of the family dwelling house.

Issues considered

Whether a married daughter of an undivided family qualifies as a 'person who is not a member of such family' under Section 4 of the Partition Act, 1893.
Whether Section 4 of the Partition Act, 1893 is applicable to a pre‑emption claim by a co‑sharer when the other co‑sharer (a daughter) has not expressed an intention to transfer her interest to a stranger.
Whether the brother’s application for pre‑emption of his sister’s share is maintainable.

Legislation cited

General Clauses Act, 1897
Hindu Succession Act, 1956s. 23, s. 3(3)
Hindu Women's Right to Property Act, 1937s. 3(3)
Partition Act, 1893s. 4
Transfer of Property Act, 1882s. 44

Subjects

Partition ActSection 4pre‑emptionundivided familydwelling housemarried daughterHindu Succession Actright of residencefamily unitypartition suit

Judgment

SRILEKHA GHOSH (ROY) AND ANR. A
V.

PARTHA SARATHJ GHOSH

JULY 9, 2002

[D.P. MOHAPATRA AND SHIVARAJ V. PATIL, JJ.] B

Partition Act, 1893-Section 4-Partition of dwelling house-Belonging
to undivided family-Partition suit filed by married daughters-Application
for pre-emption by co-sharer-Maintainability of-Held, not maintainable- C
The provision has no application in the instant case as the daughters cannot
be said to be strangers nor have they expressed intention not to reside in the
said property.

The suit property i.e. a dwelling house was inherited by one male
heir (respondent-defendant) and three female heirs viz. the widow and two D
daughters (appellants-plaintiffs nos.I and 2). The appellants-plaintiffs
acquired interest in the property by way of gift from their mother.
Appellants-plaintiffs filed suit for partition of the property. There was a
preliminary decree. During pendency of the suit, Plaintiff No. 2 got
married. Thereafter defendant filed an application under Section 4 of
Partition Act, I893 to purchase share of plaintiff No. 2, which was E
dismissed. Plaintiff No.2's application under Section 4 of the Act which
was filed before her marriage claiming pre-emption of share of plaintiff
No.I (who was married) was decided by holding that both plaintiff No.2
and defendant had right to buy share of plaintiff No. I. Defendant's appeal
against the said order was allowed holding that defendant alone was F
entitled to purchase the share of plaintiff No.I as plaintiff No.2 lost status
of a member of undivided family after her marriage. Another application
under Section 4 of the Act filed by defendant for pre-emption of share of
plaintiff No.2 was dismissed on the ground that earlier such application
was rejected which order had attained finality. In revision High Court
allowed the application for pre-emption. G
In appeal to this Court the question for consideration was whether
respondent-defendant was entitled to purchase the share of his sister
appellant-plaintiff No.2, under Section 4 of the Act.

45
H
46 SUPREME COURT REPORTS [2002] SUPP. 1 S.C.R.

A Disposing of the appeal, the Court

HELD: I. The condition for application of Section 4 of Partition Act,
1893 is that a dwelling house belonging to an undivided family must have
been transferred to a person who is not a member of such family and such
transferee sues for partition. If this pre-condition is satisfied then if any
B member of the family being a shareholder undertakes to buy share of such
transferee the Court is to make a valuation of such share in such manner
as it thinks fit and direct the sale of such share to such share-holder.
Section 4 of the Act deserves a liberal construction because its very object
and purpose is to preserve the integrity of the dwelling house. (49-D, H; 50-A]
c Ki1irode Chandra v. Saroda Prasad, 7 Ind. Cases 436 (Cal.); Mohomed
Sulaiman Khan v. Mt. Amir Jan, AIR (1941) All 281; Krishna Pillai v.
Parucutty Ammal, AIR (1952) Mad 33; Alley Hasan v. Toorab Hussain, AIR
(1958) Pat 232; Paluni Dei v. Rathi Mallick, AIR (1965) Ori lll;Gautam
Paul v. Debi Rani Paul and Ors., [2000) 8 SCC 330; Ghantesher Ghosh v.
D Madan Mohan Ghosh and Ors., [1996) 11 SCC 446; Babu Lal v. Habibnoor
Khan (dead) by Lrs. and Ors., (2000) 5 SCC 662 and Narashimaha Murthy
v. Susheelabai (Smt.)and Ors., (1996) 3 SCC 644, referred to.

2.1. In the context of the facts and circumstances of the case the High
Court was not right in granting the petition filed by the respondent under
E · Section 4 of the Act. In stricto senso the provision of Section 4 of the
Partition Act has no application in the instant case. Neither can the
plaintiffs who are daughters be said to be strangers to the family; nor is
there any material to show that they have expressed their intention not
to reside in the suit property or to transfer their interest in the sam~ to a
person who is a stranger to the family. It is also to be kept in mind that
F the plaintiffs have acquired interest in the property by gift from their
mother. Therefore they have stepped into the shoes of their mother. Under
the circumstances the petition filed by the defendant under Section 4 of
the Partition Act was not maintainable and was liable to be dismissed as
premature. (58-B; 57-E, F)
G
2.2. Keeping in view the object and purpose of preserving unity of
the family dwelling house for occupation of members of the family the
plaintiffs cannot be given a right to transfer their interest in the family
· dwelling house in favour of a stranger. If they decide not to reside in the
suit dwelling house and desire to transfer their interest then they must
H make an offer to the defendant and if he is willing to purchase the interest
SRILEKHAGHOSH v. PARTHA SARATHI GHOSH [D.P. MOHAPATRA, J.] 47

of the sisters then he will be entitled to do so on payment of the A
consideration mutually agreed or fixed by the Court. (57-F, G, HJ

CIVIL APP ELLA TE JURISDICTION : Civil Appeal No. 3660 of
2002.

From the Judgment and Order dated 19.04.1999 of the Calcutta B
High Court in CO 3529/92.

P.K. Chatterji, Abhijit Chatterji and Ranjan Mukherjee for the Appellants.

R.N. Trivedi, Additional Soliciter General and Arvind Verma (A.C.),
for the Respondent. c
Respondent-in-person. (N.P.)

The Judgment of the Court was delivered by

D.P. MOHAPATRA, J. Leave granted. D

One Sailen Ghosh was the original owner of the suit property. He died
on 23rd June, 1942 leaving behind his widow Smt. Mira Ghosh, son Partha
Sarathi Ghosh-who is respondent herein and two daughters namely Smt.
Srilekha Ghosh (Roy) and Smt. Sulekha Ghosh (Mitra) w.ho are the appellants E
herein. According to the law of succession prevailing then the respondent
and his mother became joint owners of the suit property subject to the provision
in Section 3(3) of the Hindu Woman's Right to Property Act, I937. After
coming into force of the Hindu Succession Act, I 956 the widow's interest
became absolute and thus the respondent and his mother became co-sharers
of the suit property each having a moiety share. The widow by a registered F
deed of gift dated 23 .8.1968 gifted her share to the appellants. After acquiring
half share in the suit property through their mother the appellants filed a suit
Title Suit No.29/70 against the respondent seeking a decree of partition. The
suit was decreed in the preliminary form on 28.2.1972 declaring 8 annas
share of property of the defendant and 4 annas of each of the plaintiffs. In G
the preliminary decree liberty was given to the defendant to pre-empt the
share of the plaintiffNo.l who was married. Subsequently plaintiffno.2 also
got married on 12 June, 1976.

Before her marriage the plaintiff no.2 had filed an application under
Section 4 of the Partition Act, 1893 (for short 'the Act') Misc. Case No.21 H
48 SUPREME COURT REPORTS [2002] SUPP. 1 S.C.R.

A of 1972 praying for pre-emption of the share of plaintiff no. I. During pendency
of the suit plaintiff no.2 got married. Thereafter the defendant filed an
application before the trial court for an order to purchase the share of plaintiff
no.2. The prayer of the defendant was rejected by the trial court vide order
dated 8.7.1978. However, Misc. Case No.21/72 was disposed of by the trial
court on 12th January, 1980 with a firiding that both plaintiff no.2 and the
B defendant will have the right to buy the share of plaintiff no. I. Against the
said order the defendant preferred an appeal before the High Court which
was decided by the order dated 23 .4.1987. The appeal was allowed and the
order passed by the trial court was set aside holding that the defendant alone
was entitled to purchase the share of plaintiff no. l as after marriage the
C plaintiff no.2 lost the status of a member of the undivided family. It is not
in dispute that the order was not challenged before any higher forum.

After the aforementioned decision of the High Court the defendant
. filed an application under Sectiort 4 of the Partition Act for purchasing I/4th
share ofplaintiff no.2 under the changed circumstances. The trial court rejected
D the application mainly on the ground that an application previously filed by
the defendant under Section 4 of the Act had been rejected by the trial court
and the order having not been challenged had attained finality. The defendant
challenged the order in revision before the High Court in C.O. No.3529 of
1992, which was decided by the High Court by the order dated 19.4.1999.
E The High Court allowed the Revision Petition, set aside the order of the trial
judge and allowed the application for pre-emption filed by t~e defendant for
purchasing the share of plaintiff no.2. The trial court was directed to pass all
further necessary orders and directions including fixing of valuation in terms
of Section 4 of the Act. The said order is under challenge in this appeal filed
by the plaintiffs.
F
The core question that arises for consideration in this appeal is whether
the defendant is entitled to purchase the share of his sister plaintiff no.2
under Section 4 of the Act. The provision is quoted hereunder:

"4. Partition suit by transferee of share in dwelling-house (1) Where
G a share of a dwelling-house belonging to an undivided family has
been transferred to a person who is not a member of such family, and
such transferee sues for partition, the Court shall, if any member of
the family being a shareholder shall undertake to buy the share of
such transferee, make a valuation of such share in such manner as it
H thinks fit, and direct the sale of such share to such shareholder and
SRILEKHA GHOSH v. PARTHA SARA THI GHOSH ID.P. MOHAPATRA, J.] 49

may give all necessary and proper directions in that behalf. A
(2) If in any case described in sub-Section (I) two or more members
of the family being such shareholders severally undertake to buy
such share, the Court shall follow the procedure prescribed by sub-
section (2) of the last foregoing section."
B
On a plain reading of the Section it is clear that there are certain

.. conditions for its application, such as

(I) the dwelling house must belong to undivided family;
(2) the transfer must be made to a stranger;
(3) transferee has filed the suit for partition and
c
' (4) shareholder claims and undertakes to buy the share of the stranger.

The condition for application of the statutory provision is that a dwelling
house belonging to an undivided family must have been transferred to a
person who is not a member of such family and such transferee sues for D
partition. If this pre-condition is satisfied then if any member of the family
being a shareholder undertakes to buy the share of such transferee the Court
is to make a valuation of such share in such manner as it th inks fit and direct
the sale of such share to such share-holder.

- Coming to the case in hand it appears from the discussions in the
impugned order that the High Court has proceeded on the assumption that a
daughter on getting married ceases to be a part of the family of her father for
the purpose of Section 4 of the Act. It is on thi~ assumption that the respondent
E

made the application under Section 4 of the Act to purchase the share of
plaintiff no.2 who had got married during pendency of the petition filed by F

- her under that Section for purchasing the share of her married sister plaintiff
no.I.

The question for consideration is whether for the purpose of application
of Section 4 of the Act a married daughter can be said to be "a person who
is not a member of such family". If the question is answered in the affirmative G
then the application filed by the respondent was maintainable and could be
considered on merit. If the question is answered in the negative then Section
4 of the Act is not applicable and the application filed by the respondent is
to be rejected as not maintainable.

The position is well settled that Section 4 of the Act deserves a liberal H
50 SUPREME COURT REPORTS (2002) SUPP. l S.C.R.

A construction because its very object and purpose is to preserve the integrity
of the dwelling house. Sir Ashutosh Mukherjee in his classical exposition of
the meaning of the term 'family' in the case of Khirode Chandra v. Saroda
Prasad, 7 Ind. Cases 436 (Cal.) observed:

"The word "family" as used' in the Partition Act ought to be given a
B liberal and comprehensive. meaning, and it does include a group of
persons related in blood, who live in one house or under one head or
management. There is nothing in the Partition Act to ·support the
suggestion that the term "family" was· intended to be used in a very
narrow and restricted sens~, namely, a body of persons who trace
..
c their descent from a common ancestor." ·

Therein it was further observed :

"When regard is had to Hindu social customs and manners, it is
difficult to hold that the temi "family" is not comprehensive enough
D to include such a bodY, of persons. Indeed, in cases where there are
no male children in the.family ·and the daughters alone are entitled to
the inheritance, their husbands very often live as members of the
family, and they with their wives may not inappropriately be treated
as the "family" some members of which have shares in the dwelling
house."
E
This decision has been considered to be a leading authority on the
question in issue. The same principle has been followed by different High
Courts in Mohomed Sulaiman Khan v. Mt. Amir Jan, AIR (1941) All 281;
Krishna Pillai v. Parukutty Amma/, AIR (1952) Mad 33; Alley Hasan v.
F Toorab Hussain, AIR (1958) Pat 232; and Pa/uni Dei v. Rathi Mallick, AIR
(1965) Ori 111.

In Pa/uni Dei case (supra) the Orissa High Court held that the defendant
no.2 in the case though was married and residing with her husband elsewhere,
she at times used to reside in her father's hoµse and had not abandoned her
G intention to n:side there; she was related by blood to the family of the owner;
she must therefore be treated as a meinber of the undivided family qua the
dwelling house of defendant 1. She being a shareholder is entitled to buy the
share of the plaintiff-transferee. The High Court held that judgment of the
Court below rejecting her claim is contrary to law and must be set aside.

H In the case of Gautam Paul v. Debi Rani Paul and Ors., {2000] 8 SCC
SRILEKHA GHOSH v. PARTHA SARATHI GHOSH ID.P. MOHAPATRA, J.l 51
330 this Court considered the question of liberal interpretation to be given to A
the provisions of Section 4 of the Act. This Court made the following
observations:

"Let us now consider whether the sale to the appellant by Bibhuti
Paul can be said to be a sale to an outsider or a stranger to the family.
Undoubtedly, Section 4 should be given a liberal interpretation. B
However, giving a liberal interpretation does not mean that the
wordings of the Section and the clear interpretation thereof be ignored.
The relevant wordings are "dwelling house belonging to an undivided
family". Thus it must be a dwelling house belonging to an undivided
family. The further requirement is that the transfer must be to a C
person who is not a member of "such family". The words "such
family" necessarily refers to the undivided family to whom the
dwelling house belongs."

xxx xxx xxx
"We are in agreement with this opinion. There is no law which provides D
that co-sharer must only sell his/her share to another co-sharer. Thus
strangers/ outsiders can purchase shares even in a dwelling house.
Section 44 of the Transfer of Property Act provides that the transferee
of a share of a dwelling house, if he/she is not a member of that
family, gets no right to joint possession or common enjoyment of the E
house. Section 44 adequately protects the family members in which
an outsider can get possession is to sue for possession and claim
separation of his share. In that case Section 4 of the Partition Act
comes into play. Except for Section 4 of the Partition Act there is no
other law which provides a right to a co-sharer to purchase the share
sold to an outsider. Thus before the right of pre-emption, under Section F
4, is exercised the conditions laid down therein have to be complied
with. As seen above, one of the conditions is that the outsider must
sue for partition. Section 4 does not provide the co-sharer a right to
pre-empt where the stranger/outsider does nothing after purchasing
the share. In other words, Section 4 is not giving a right to a co- G
sharer to pre-empt and purchase the share sold to an outsider anytime
he /she wants. Thus even though a liberal interpretation may be given,
the interpretation cannot be one which gives a right which the
legislatures clearly did not intend to confer. The legislature was aware
that in a suit for partition the stranger/outsider, who has purchased a
share, would have to be made a party. The legislature was aware that H
52 SUPREME COURT REPORTS [2002) SUPP. I S.C.R.

A in a suit for partition the parties are interchangeable. The legislature
was aware that a partition suit would result in a decree for partition
and in most cases a division by metes and bounds. The legislature
was aware that on an actual division, like all other co-sharers, the
stranger/outsider would also get possession of his share. Yet the
legislature did not provide that the right for pre-emption could be
B exercised "in any suit for partition". The legislature only provided
for such right when the "transferee sues for partition". The intention
of the legislature is clear. There had to be initiation of proceedings
or the making of a claim to partition by the stranger/outsider. This
could be by way of initiating a proceeding for partition or even
c claiming partition in execution. However, a mere assertion of a claim
to a share without demanding separation and possession (by the
outsider) is not enough to give to the other co-sharer a right of pre-
emption. There is a difference between a mere assertion that he has
a share and a claim for possession of that share. So long as the
stranger-purchaser does not seek actual division and possession, either
D in the suit or in execution proceedings, it cannot be said that he has
sued for partition. The interpretation given by Calcutta, Patna, Nagpur
and Orissa High Courts would result in nullifying the express
provisions of Section 4, which only gives a right when the transferee
sues for partition. If that interpretation were to be accepted then in all
E cases, where there has been a sale of a share to an outsider, a co-
sharer could simply file a suit for partition and then claim a right to
purchase over that share. Thus even though the outsider may have, at
no stage, asked for partition and for the delivery of the share to him,
he would be forced to sell his ·share. It would give to a co-sharer a
right to pre-empt and purchase whenever he/she so desired by the
F simple expedient offiling a suit for partition. This was not the intent
or purpose of Section 4. Thus the view taken by Calcutta, Patna,
Nagpur and Orissa High Courts, in the aforementioned.cases, cannot
be said to be good law. ". (Emphasis supplied)

In the case of Ghantesher Ghosh v. Madan Mohan Ghosh and Ors.
G [1996] 11 sec 446 this. Court interpreting Section 4 of the Partition Act
made the following observations :

"In order to answer this moot question, it has to be kept in view what
the legislature intended while enacting the Act and specially Section
4 thereof. The legislative intent as reflected by the Statement of Objects
H
- SRILEKHA GHOSH v. PARTHA SARA THI GHOSH (D.P. MOHAPATRA, l.] 53
and Reasons, as noted earlier, makes it clear that the restriction imposed
on a stranger transferee of a share of one or more of the co-owners
in a dwelling house by Section 44 of the T.P. Act is tried to be further
A

extended by Section 4 of the Partition Act with a view to seeing that
such transferee washes his hands off such a family dwelling house
and gets satisfied with the proper valuation of his share which will be B
paid to him by the pre-empting co-sharer or co-sharers, as the case
may be. This right of pre-emption available to other co-owners under
Section 4 is obviously fo further fructification of the restriction on
such a transferee as imposed by Section 44 of the T.P. Act."

This Court in the case of Babu Lal v. Habibnoor Khan, (dead) by Lrs. C
and Ors., [2000] 5 SCC 662 considering the applicability of Section 4 of the
Act observed:

"Therefore, one of the basic conditions for applicability of Section 4
as laid down by the aforesaid decision and also as expressly mentioned
in the section is that the stranger-transferee must sue for partition and D
separate possession of the undivided share transferred to him by the
co-owner concerned. It is, of course, true that in the said decision it
was observed that even though the stranger-transferee of such
undivided interest moves an execution application for separating his
share by metes and bounds it would be treated to be an application
for suing for partition and it is not necessary that a separate suit E
should be filed by such stranger-transferee. All the same, however,
before Section 4 of the Act can be pressed into service by any of the
other co-owners of the dwelling house, it has to be shown that the
occasion had arisen for him to move under Section 4 of the Act
because of the stranger-transferee himself moving for partition and F
separate possession of the share of the other co-owner which he
would have purchased. This condition is totally lacking in the present
case. To recapitulate, Respondent I decree-holder himself, after getting
the final decree, had moved an application under Section 4 of the
Act. The appellant, who was a stranger purchaser, had not filed any
application for separating his share from the dwelling house, either at G
the stage of preliminary decree or final. decree or even thereafter in
execution proceedings."

At this stage it will be relevant to notice the provisions of Section 23
of the Hindu Succession Act and Section 44 of the Transfer of Property Act,
under which preferential right to acquire property in certain cases particularly H
54 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A in respect of the dwelling houses, is dealt with. The said Sections are quoted
.. -

hereunder:

"23. Special provisions respecting dwelling-houses-Where a Hindu
intestate has left surviving hiin or her both male and female heirs
specified in Class I of the Schedule and his or her property includes
B a dwelling-house wholly occupied by members of his or her family,
then notwithstanding anything contained in this Act, the right of any
such female heir to claim partition of the dwelling-house shall not
arise tmti,l the male heirs choo·s~ to divide fheir respective shares
therein; but the female heir shall be entitled to a_ right of residence
c therein;

Provided that where such female heir is a daughter, she shall be
entitled to a right of residence in the dwelling-house only if she is
unmarried or has been deserted by or has separated from her husband
or is a widow."
D Section 44 of the Transfer of Property Act reads as follows:

"Where one of two or more co-owners of immovable property legally
competent in that behalf transfers his share of such property or any
interest therein, the transferee acquires, as to such share or interest,
and in so far as is necessary to give effect to the transfer, the
E transferor's right to joint possession or other common or part
enjoyment of the property, and to enforce a partition of the same, but
subject to the conditions and liabilities affecting, at the date of the
transfer, the share or interest so transferred.

Where the transferee of a share of a dwelling house belonging to an
F
undivided family is not a member of the family, nothing in this Section
shall be deemed to entitle him to joint possession or other common
or part enjoyment of the house."

Although the statutory provisions are not very happily worded it is
G clear from Section 23 that it expressly recognizes the right of a female heir
to reside in the family dwelling house. This is the position despite the restriction
statutorily placed on her right to claim partition of such dwelling house.

In the case of Narashimaha Murthy v. Susheelabai (Smt.) and Ors.,
[ 1996] 3 SCC 644, this Court considering the provisions of Section 23 of the
H Act in the light of Section 4( 1) of Partition Act and Section 44 of the Transfer
SRILEKHA GHOSH v. PARTHA SARATHI GHOSH [D.P. MOHAPATRA, J.] 55
of Property Act made the following observations: A
"Attention may now be invited to the last sentence in the provision
and the ·proviso, for there lies the clue to get to the heart of the
matter. On first impression the provision may appear conflicting with
the proviso but on closer examination the conflict disappears. A female
heir's right to claim partition of the dwelling house does not arise B
until the male heirs choose to divide their respective shares therein,
but till that happens the female heir is entitled to the right to reside
. therein. The female heir already residing in the dwelling house has a
right to its continuance but in case she is not r(l,Siding, she has. a right
to enforce her entitlement of residence in a court of law. The proviso C
makes it amply clear that where such female heir is a daughter, she
shall be entitled to a right of residence in the dwelling house only if
she is unmarried or has been deserted by or has separated from her
husband or is a widow. On first impression, it appears that when the
female heir is the daughter, she is entitled to a right of residence in
the dwelling house so long as she suffers from any one of the four D
disabilities i.e. (I) being unmarried; (2) being a deserted wife; (3)
being a separated wife; and (4) being a widow. It may appear that
female heirs other than the daughter are entitled without any
qualification to a right of residence, but the daughter only if she
suffers from any of the aforementioned disabilities. If this be the E
interpretation, as some of the commentators on the subject have thought
it to be, it would lead to a highly unjust result for a married
granddaughter as a Class I heir may get the right of residence in the
dwelling house, and a married daughter may nGt. This incongruous
result could never have been postulated by the legislature.
Significantly, the proviso covered the cases of all daughters, which F
means all kinds of daughters, by employment of the words "where
such female heir is a daughter" and not "where such female heir is
the daughter". The proviso thus is meant to cover all daughters, the
description ofwhich has been given in the above table by arrangement.
The word 'daughter' in the proviso is meant to include daughter of G
a predeceased son, daughter of a predeceased son of a predeceased
son and daughter of a predeceased daughter. The right of residence
of the female heirs specified in Class I of the Schedule, in order to
be real and enforceable, presupposes that their entitlement cannot be
obstructed by any act of the male heirs or rendered illusory such as
in creating third party rights therein in favour of others or in tenanting H
56 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A it, creating statutory rights against dispossession or eviction. What is
meant to be covered in Section 23 is a dwelling house or houses, (for
the singular would include the plural, as the caption and the section
is suggestive to that effect) fully occupied by the members of the
intestate's family and not a house or houses let out to tenants, for
then it or those would not be dwelling house/houses but merely in
B description as residential houses. The section protects only a dwelling
house, which means a house wholly inhabited by one or more members
ofthefainily of the intestate, where some or all of the family members,
even if absent for some tempormy reason, have the animus revertendi.
In our considered view, a tenanted house therefore is not a dwelling
C house, in the sense in which the word is used in Section 2 3.

xxx xxx xxx

The .second question does not present much difficulty. On literal
interpretation the provision refers to male heirs in the plural and
D unless they choose to divide their respective shares in the dwelling
house, female heirs have no right to claim partition. In that sense
there cannot be a division even when there is a single male. It would
always be necessary to have more than one male heir. One way to
look at it is that if there is one male heir, the section is inapplicable,
which means that a single male heir cannot resist female heir's claim
E to partition. This wou.ld obviously bring unjust results, an intendment
least conceived of as the underlying idea of maintenance of status
quo would go to the winds. This does not seem to have been desired
while enacting the special provision. It looks nebulous that if there
are two males, partition at the instance of female heir could be resisted,
but if there is one male, it would not. The emphasis on the section is
F
to preserve a dwelling house as long as it is wholly occupied by some
or all members of the intestate 's family which includes male or males.
Understood in this manner, the language in plural with reference to
male heirs would have to be read in singular with the aid of the
provisions of the General Clauses Act. It would thus read to mean
·o that when there is a single male heir, unless he chooses to take out
his share from the dwelling house, the female heirs cannot claim
partition against him. It cannot be forgotten that in the Hindu male-
oriented society, where begetting of a son was a religious obligation,
for the fulfilment of which Hindus have even been resorting to
adoptions, it could not be visualized that it was intended that the
H
SR!LEKHA GHOSH v. PARTHA SARA TH! GHOSH [D.P. MOHAPATRA, J.] 57
single male heir should be worse off, unless he had a supportive A
second male as a Class I heir. The provision would have to be
interpreted in such manner that it carries forward the spirit behind it.
The second question would thus have to be answered in favour of the
proposition holding that where a Hindu intestate leaves surviving him
a single male heir and one or more female heirs specified in Class I
of the Schedule, the provisions of Section 23 keep attracted to maintain B
the dwelling house impartible as in the case of more than one male
heir, subject to the right of re-entry and residence of the female heirs
so entitled, till such time the single male heir chooses to separate his
share; this right of his bein.g personal to him, neither transferable nor
heritable." (Emphasis supplied) C
Applying the ratio in the aforementioned decided cases to the case in
hand the position that emerges is that the last owner of the suit property left
one male heir (son) and three female heirs (widow and two daughte") who
succeeded to the suit property. The widow transferred her interest in the suit
property by gift in favour of her two daughters, who in course of time got D
married; the two daughters filed the suit for partition of the suit property
which was a family dwelling house; the partition suit was decreed preliminary;
at the stage of execution proceedings the petition has been filed by the male
heir i.e. the brother of the plaintiffs claiming right of pre-emption to purchase
the share of one of the sisters (plaintiff no.2). In stricto senso the provision
of Section 4 of the Partition Act has no application in the case. Neither can
E
the plaintiffs who are daughters be said to be strangers to the family nor is
there any material to show that they have expressed their intention not to
reside in the suit property or to transfer their interest in the same to a person
who is a stranger to the family. It is also to be kept in mind that the plaintiffs
have acquired interest in the property by gift from their mother. Therefore F
they have stepped into the shoes of their mother. Under the circumstances the
petition filed by the defendant under Section 4 of the Partition Act was not
maintainable and was liable to be dismissed as premature. At the same time
keeping in view the object and purpose of preserving unity of the family
dwelling house for occupation of members of the family the plaintiffs cannot G
be given a right to transfer their interest in the family dwelling house in
favour of a stranger. If they decide not to reside in the suit dwelling house
and desire to transfer their interest then they must make an offer to the
defendant and if he is willing to purchase the interest of the sisters then he
will be entitled to do so on payment of the consideration mutUally agreed or
fixed by the Court. H
58 SUPREME COURT REPORTS [2002) SUPP. I S.C.R.

A We are persuaded to pass this Order keeping in view the interest of all
the members of the family i.e. the son and two daughters and their family
members and the importance of preserving the unity of the family dwelling
house which is meant for occupation of successors of the original owner,
Sailen Ghosh.

B We are of the view that in the context of the facts and circumstances
of the case the High Court was not right i~:granting the petition filed by the
respondent under Section 4 of the Act. Accordingly the order of the High
Court under challenge is modified in the manner and to the extent noted
above and the appeal is disposed of accordingly. There will be no order for
C costs.

K.K.T. Appeals disposed of.

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