Section 23 of the Hindu Succession Act:
Before and After
The Hindu Succession Act came into force on 17th June, 1956, with the basic objective of providing a comprehensive scheme of intestate succession for Hindus.
The Hindu Succession Act 1956 was amended in 2005. The amendments were made to make the Hindu Succession Act more empowering to women by altering, deleting and adding certain sections.
The Hindu Succession (Amendment) Act, 2005 sought to make two major amendments in the Hindu Succession Act, 1956. First, it is proposed to remove the gender discrimination in section 6 of the original Act. Second, it proposed to omit section 23 of the original Act, which disentitles a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family, until the male heirs choose to divide their respective shares therein.
This paper focuses on the rights of women regarding section 23 of the Hindu Succession Act, 1956 and its effects after it got deleted in 2005.
Hindu Succession Act, 1956: Before the amendment
The framers of the Indian Constitution took note of the adverse condition of women in society and a number of provisions and safeguards were included in the Constitution to ward off gender inequality. In this context, Articles 14, 15(3) and 16 of the Constitution can be mentioned.
After the advent of the Constitution, the first law made at the central level pertaining to property and inheritance concerning Hindus was the Hindu Succession Act, 1956.
The Act took a giant leap in 1956 by granting several rights to women equal to that of men but failed to do complete justice to women.
Prior to the Hindu Succession Act, 1956 shastric and customary laws that varied from region to region governed Hindus and sometimes it varied in the same region on a caste basis resulting in diversity in the law.
A woman in a joint Hindu family, consisting both of man and woman, had a right to sustenance, but the control and ownership of property did not vest in her. In a patrilineal system, like the Mitakshara school of Hindu law, a woman, was not given a birth right in the family property like a son.
The right concerning a share in the dwelling house was given under section 23 of the newly made act. The section reads as follows: “23. Special provision respecting dwelling- houses: Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes 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 until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence 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.”
The term dwelling house signifies a house which is used for residential purposes of the family members. This house should be wholly occupied by the members meaning that the whole house should be in the possession and occupation of the members of the intestate’s family.
So, the right of the female would not be restricted in the case of relatives and servants, who are not family members, residing in the house.
Section 23 of the Hindu Succession Act, 1956 on one hand recognized the qualified right of residence of Class I female heirs and on the other hand bared such female heirs from seeking partition of the dwelling house until the male heirs agreed to divide their shares in the house. The objective of the section was to prevent the fragmentation of a family dwelling house at the instance of a female heir to the prejudice of the male heirs.
The Calcutta High Court opined that the legislative intent of this section is to prevent a Class I female heir from disposing her share in the dwelling house to a stranger and to secure for her a place of residence in case the male members decide to partition. In other words, according to the Court, the section merely postpones a woman's right to claim partition until the male heirs choose to divide their respective shares therein.
Justice Madhava Reddy, as he was then, held that Section 23 of the Hindu Succession Act does not extinguish the right of female heir to claim partition, but only postpones that right to enforce partition to claim a share in the dwelling-house in certain contingencies. If these situations do not arise, Section 23 of the Hindu Succession Act has no application. The learned Judge has held that Section 23 has no application where there is only one male heir of the Hindu intestate, the right of female heir or heirs to claim partition of the dwelling-house shall not be taken away or postponed till the male heir chooses to file the suit for partition.
This shows us that the right of a single male heir did not restrict the right of the female heir regarding the partition of the dwelling house. But there are conflicting views on this restriction. In the case of Janabai Ammal Gunabooshni v TAS Palani Mudaliar, a Division Bench comprising ratnavel Pandial J., and Venugopal J., held:
“Even in cases where there is only one male heir of the intestate in a Hindu joint family, the female heirs cannot claim partition of the dwelling hose until the male heirs choose to divide their respective shares therein. Section 23 cannot be deemed to have intended that the restriction is to operate only if there are two or more male heirs in the family”
In another case before the high court of Calcutta, it was held that a female heir would be able to ask for partition in the dwelling house as it was not “wholly” occupied by the family of the deceased person.
Apart from all these restrictions to a female, another additional restriction is put upon a married daughter. Section 23 gives a married daughter a title, but no right to possess and enjoy the property and consequently, even though in theory, the right to sell the property is not denied, it is inconceivable that this interest, which is without the right of possession, will be purchased by anyone. The practical implication of this statuary interdict on a married daughter to claim partition of the house, till the male heirs decide otherwise, results in the denial of any claim of enjoyment of the dwelling house.
So, it can be seen that even though the Hindu Succession Act, 1956 gave lots of rights to women, it had certain restricting sections, like section 23. Even though this was not an absolute restriction, it still restricted the rights of the women. Married daughters were not allowed any possession privileges while an unmarried daughter was not allowed to ask for partition.

Hindu Succession (Amendment) Act, 2005
This amending Act of 2005 is an attempt to remove the discrimination as contained in the section 23 of the Act as disentitles the female heir to ask for partition in respect of dwelling house wholly occupied by a Joint Family until male heirs choose to divide their respective shares therein, was omitted by this Amending Act. Section 6 of this Act was also amended. As a result the disabilities of female heirs were removed.
The removal of section 23 of this Act means that now any female class-1 heir of a deceased intestate is entitled to seek partition of the dwelling house, regardless of the fact that the male class-1 heirs want partition or not.
But this deletion of section 23 presented a problem concerning pending suits regarding female heirs wanting partition. The male heirs wanted to be governed by the old law, while the female heirs wanted to be governed by the amended Act.
In the case of M. Revathi v. R. Alamelu, the court held that the amendment had come into vogue during the pendency of the suit proceedings and it would be a mere hyper technicality if the plaintiff was driven to the extent of filing a fresh suit involving the said recent amended Act, and in such a case, the court would have no difficulty in holding that sec 23 had no application and accordingly partition could be ordered in respect of the share or the female class-1 heir.
Another suit was pending in the court when this amendment came about. In the case of Kalipada Kirtan v. Bijoy Bag, the married daughter of a deceased intestate male claimed her share in the dwelling house which was in the possession of her brother. The court held that restriction on the class-1 female heirs to demarcate their shares in the dwelling house if the same was in the occupation of themale heirs has been removed and the deletion would be applicable as against pending suits as well.
It can be seen from the above mentioned case laws that the effect of the omission of section 23 would not only be on suits filed after 2005, but all pending suits also.

Conclusion
The right of women before the Hindu Succession (Amendment) Act, 2005 was limited and restrictive relating to dwelling house. They were not allowed to call for partition of the said dwelling house until the male heirs wanted to do so. They had a right of occupation in that house, but only if they were unmarried, separated, divorced or widowed. A married class-1 heir did not have the right to shelter in the dwelling house.
The right of the married daughter was very restrictive. She did not have the right of possession, but strangely had the right to ownership. This means that she cannot sell off her share, nor can she occupy it. All she could do was to wait till the male heirs called for partition, like the unmarried class-1 heir.
There are conflicting case laws concerning the fact of the right of the single male heir. In my opinion, the right of a single male heir can be ascertained through judging the legislative intent of this particular section.
“The objective of the section was to prevent the fragmentation of a family dwelling house at the instance of a female heir to the prejudice of the male heirs”
The intent of the section was to not let the dwelling house break up. In my opinion, the right of a single male heir would be absolute, before the amendment came around in 2005.
After the amendment in 2005, the right of the female class-1 heir became absolute. She can ask for partition of the dwelling house, regardless of how many male heirs there are or if they want partition or not.
It could be drawn out from the case laws, that even pending suits during the time of the amendment would be governed by the new law.
This new law has bestowed upon women new rights and has got them one step closer to achieving total equality in all aspects.

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[ 1 ]. Poonam Pradhan Saxena, Family law lectures, Family Law II, 3rd edn, 2011, pg. 271
[ 2 ]. Changes brought in the position of women, Shelly Saluja and Soumya Saxena
[ 3 ]. Whether Amendments Made To The Hindu Succession Act Are Achieving Gender Quality?, Romit Agrawal
[ 4 ]. Whether Amendments Made To The Hindu Succession Act Are Achieving Gender Quality?, Romit Agrawal
[ 5 ]. Section 23, The Hindu Succession Act, 1956
[ 6 ]. Poonam Pradhan Saxena, Family law lectures, Family Law II, 3rd edn, 2011, pg. 422
[ 7 ]. (2005) 5 SCC (J) 19
[ 8 ]. (2005) 5 SCC (J) 19
[ 9 ]. 1993 (3) ALT 532
[ 10 ]. Poonam Pradhan Saxena, Family law lectures, Family Law II, 3rd edn, 2011, pg. 424
[ 11 ]. AIR 1988 Cal 115
[ 12 ]. Poonam Pradhan Saxena, Family law lectures, Family Law II, 3rd edn, 2011, pg. 426
[ 13 ]. AIR 2009 Mad 86, pg 87
[ 14 ]. AIR 2008 Cal 63
[ 15 ]. (2005) 5 SCC (J) 19