Section 23 of the Hindu Succession Act, 1956, which restricts the right of female heirs to claim partition of a dwelling house, does not apply where there is only one male heir.

K. MADHAVA REDDY, J.

( 1 ) THIS Second Appeal is directed against the Judgment and Decree in a. S. No. 55 of 1976 on the file of the District Judge, Mahaboobnagar. The 1st defendant in O. S. No. 18 of 1974 is the appellant herein.

( 2 ) ONE Ramachandra Reddy had three sons, Rami Reddy father of the Plaintiff, 1st defendant and 2nd defendant, Pandu Ranga Reddy and Narayana Reddy. Narayana Reddy died without any issue. There was a partition of the properties between Rami Reddy and Panduranga reddy. The plaintiff is the daughter and the 1st defendant is the son of Rami Reddy by his second wife and the 2nd defendant is the daughter by his first wife. Rami Reddy died in the year 1964. The plaintiff has laid the suit for partition and separate possession of the properties of Rami Reddy inter alia pleading that these were the properties owned by Rami Reddy. The plaint a Schedule comprises of agricultural lands and plaint b Schedule comprises of dwelling bouse and motor pump sets.

( 3 ) THE 2nd defendant chose to remain exparte. Only the 1st defendant ie. the brother of the plaintiff contested the suit. While admitting the relationship of the parties he pleaded that he and his father own plaint schedule properties jointly as co-parceners and that these lands and houses are ancestral properties. He however contended that the moveable properties shown in Plaint b Schedule exclusively belong to himself. He further pleaded that soon after the death of his father, the plaintiff and the 2nd defendant orally relinquished their right, title and interest in the plaint a and b Schedule properties before the elders, relatives and well wishers of the family at Srirangapur Village and ever since the death of his father he has been in possession and enjoyment of the plaint schedule properties exclusively. Alternatively he pleaded that as the properties are ancestral and joint family properties, the plaintiff would be entitled only a l/6th share and not 1/3 share as pleaded by her. With reference to lands bearing S. Nos. 163 and 164 it was pleaded that they were the properties purchased by the 3rd defendant from Rami Reddy and that even during the lifet-ime of ram Reddy, the 3rd defendant was and still continues to be in possession of the said properties in his own right. In view of the above facts he denied that the plaintiff was entitled to any mesne profits. With respect to the dwelling house he pleaded that she was not entitled to sue for partition of the dwelling house. In the result he prayed for the dismissal of the suit.

( 4 ) IN the rejoinder filed by the Plaintiff it is asserted that the plaint schedule properties were acquired by the father of the plaintiff alone along with his brother and that they partitioned the properties and that Kami reddy and bis brother partitioned the properties among themselves. She denied that the 1st defendant joined them in acquiring the lands and asserted that "the suit property is not ancestral or joint property, and that the father of the plaintiff was the sole owner of the properties and was in exclusive possession during his life time". The plaintiff also claimed mesne profits.

( 5 ) THE trial court as well as the appellate Court held that the plaint schedule properties are self acquired properties of Rami Reddy and the plaintiff was entitled to a 1/3rd share therein. With respect to the two s. Nos. 163 and 164 purchased by the 3rd defendant from Rami Reddy, the trial court upheld the plea of the 3rd defendant and dismissed the suit as also her claim for mesne profits. The trial court rejected the 1st defendant s plea that the plaintiff had relinquished her share in the plaint schedule properties in the presence of elders. In view of these findings on the main issues, the plaintiff s suit was decreed by the trial court with respect to the entile plaint schedule properties and dismissed with respect to two survey Numbers referred to above. The plaintiff preferred an appeal A. S. No. 54 of 1976 in

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