VENKATACHALAIAH, J.

( 1 ) THIS appeal by the plaintiffs is directed against the judgment and decree dated 15-10-1982 made in OS no. 62 of 1979 on the file of the Court of the Civil Judge, Ranebennur, partly decreeing their suit for partition and separate possession. The appeal is in the list of cases for admission for the day. However, notices having been issued to the respondent before the admission, Sri w. K. Joshi, learned counsel entered his appearance for respondent. This appeal is admitted and, with the consent of learned counsel on both sides, taken-up for final-hearing and disposed of by this judgment. Parties will hereinafter be referred to in relation to their array in the court-below.

( 2 ) THE facts are these : The first plaintiff Smt. Kariyavva is the second wife of one Mallurappa. Halavva, the second-plaintiff, is Mallurappa's daughter by Kariyavva. There was another daughter, Saroja, who died as an infant. Defendant, Hanumanthappa, is Mallurappa's son from his first-wife Rudravva. Rudravva predeceased -Mallurappa. The suit- properties constitute the joint-family properties. Mallurappa died on 16-7-1958. The plaintiffs, as the intestate heirs of Mallurappa, brought the present suit for partition and separate possession of their share in the suit properties. They together claimed a 7/12 share. In doing so, they also included the share of the daughter Saroja which, plaintiffs claimed, they were entitled to as Saroja's heirs. This presupposes that Saroja died after 16-7-1958.

( 3 ) DEFENDANT-HAN umanthappa's defence was that Item No. IA was his separate property and was not liable to partition. He also disputed the existence and partibility of the moveables.

( 4 ) THE trial-Court framed certain issues which, according to it, arose out of the pleadings. On those issues parties went to trial. The trial-Court held that Item No. 1a had been lost to the joint-family and its subsequent acquisition by defendant was on his own account and that accordingly, the plaintiffs could claim no share therein. In regard to the other Hem of immoveable property in item 1b, the trial- court denied a share therein to the second plaintiff on the ground that iv was the family-residential house, to which S. 23 of Hindu Succession act, 1956 was attracted and that a female heir could not claim partition till the male heirs chose to efect a partition. In regard to the moveables, only Items 9 to 14 of the comcerned plaint-schedule were held to the partible joint-family moveabies. In the final result, the trial Court lid not give any share to the daughter, the second-plaintiff. It gave a hat-share each to the mother and the Son-the first plaintiff and defendan -respectively.

( 5 ) ON the contentions urged in this abpeal, the following points fall for determination. A) Whether the trial-Court deternined and quantified the shares of the parties correctly ? b) Whether Item No. 1a which was lost to the joint-family by the court-sale even during the lifetime of Mallurappa became, upon its subsequent acquisition by defendant, part of the joint-family estate ? c) Whether in view of the fact that there was only one male-heir amongst the body of intestate heirs, s. 23 of the Hindu Succession Act, 1956 was attracted so far as the family residential-house (Item IB) was concerned ?

( 6 ) RE: Point (a); From a perusal of the trial-Court's judgment, it is difficult to find out the basis of the allocations of the shares as done by it. The parties were governed by the Bombay School of Hindu Law. The wife was entitled to be allocated an equal share at a partition. At the notional partition just before mallurappa's death the persons entitled to shares would be Mallurappa, his son Hanumanth'appa, and his wife Kariyavva, each being entitled to a l/3rd share. The l/3rd share allocable to Mallurappa at such notional partition would be the subject-matter of devolution as upon intestacy. The two plaintiffs and the defendant as Class-I heirs would each be entitled to l/3

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