The main legal point established in the judgment is that a married female heir, even if a daughter, is not entitled to the right of residence in the family dwelling house under Sec. 23 of the Hindu Succession Act unless she qualifies under the proviso to the section.

( 1 ) THIS appeal directed against the judgment and decree dated 31-7-1987 of the XII Additional City Civil Judge of bangalore, passed in 0 S. No. 858 of 1980 on his file coming up for admission after notice, is disposed of by the following judgment.

( 2 ) THE brief facts necessary to be stated for a just disposal of this case are as follows:- one Puttakenchamma was the daughter of one Malavalli Chandagiriyappa. Chandagiriyappa and his brother malavalli Kamaiah constituted a undivided hindu joint family. Chandagiriyappa died some time in the year 1975 leaving behind him the the plaintiff, M. C. Thimmaraju and children of his pre-deceased son M C. Narayappa who were arrayed as defendants in the aforementioned original suit. She claimed partition of the suit schedule properties, moveables and immoveables, and possession by metes and bounds particularly of a dwelling house situated on Kilari Road, item No. 1 of plaint 'a' schedule property in which she claimed to be residing. The suit was resisted by the defendants inter alia on the ground that she was not entitled to any share and that she could not maintain a suit for partition not being a coparcener and in any event, Sec. 23 of the Hindu Succession Act was a bar for her to get a share and possession of a dwelling house which was the family residential house, that is item No. 1 of plaint 'a' schedule property. Otherwise, the relationship was admitted. Plaintiff had claimed 1/12th share in the suit schedule properties.

( 3 ) ON the pleadings, the trial court framed as many as 5 issues and 7 additional issues. The court recorded a finding that she could maintain a suit having regard to the provisions made in section 8 of the Hindu Succession act being a Class-l female heir (daughter) of deceased Chandagiriyappa. It also recorded a finding that she was not entitled to a share in the dwelling house but only the right of residence along with others and that Sec 23 of the Act was attracted to the facts of the case having regard to the ruling of this Court in Kariyavva v Hanumanthappa Mallurappa, (1984 (1), Kar. L. J. Page 273 ). However while denying her right to separate possession of her 1/12th share in item No. 1 of plaint 'a' Schedule Property, it nevertheless gave her the right of residence along with others.

( 4 ) AGGRIEVED by the Judgment and decree, the appellants have approached this Court and at the time of arguments, the learned Counsel has fairly confined his argument to only one aspect of the case, that is, the right of residence granted to her ignoring the proviso to Sec. 23 of the Hindu Succession Act on the ground that as a married woman plaintiff was not entitled to a share, P W. 1, her husband had deposed on her behalf and also held power of attorney from her, conclusively evidencing her married status.

( 5 ) THEREFORE, only point for our determination which arises in this appeal is whether the trial court was correct in awarding the plaintiff, the right of residence in suit schedule item property, the family dwelling house.

( 6 ) SEC. 23 of the Hindu Succession act reads as follows :-"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. " (Emphasis Supplied) unless the exception created by the proviso clearly covers a case, a female heir even if she is a daughter will not be entitled