The proviso to S. 23 of the Hindu Succession Act aims to provide residence to specific categories of daughters and should not encourage desertion or separate living.

( 1 ) - This appeal is preferred by the first defendant against the Judgment and Decree dated 5/04/1991 passed by the 10th Additional City Civil Judge, Bangalore in O. S. No. 489 / 1985.

( 2 ) RESPONDENTS 1 to 5 are the plaintiffs 1 to 5 and respondents 6 and 7 are the defendants 3 and 4 respectively.

( 3 ) RESPONDENTS 1 to 5 filed the aforesaid suit for possession of the suit schedule property bearing No. 40, Hospital Road, Civil Station, Bangalore. The defence of the appellant/first defendant was that the suit property is a family dwelling house; that she being the daughter of Sri C. R. Nagappa and deserted by her husband is entitled to have right of residence.

( 4 ) THE relationship between the parties is not in dispute, Plaintiff No. 1 is the widow of deceased Nagappa and plaintiffs 2 to 5 are the sons of deceased Nagappa and the first defendant is the daughter through the first wife of Nagappa who pre-deceased Nagappa. Defendants 3 and 4 are the children of first defendant. The suit schedule house was owned by Sri Nagappa. It is also not in dispute that it is a family dwelling house. Therefore, the only material issue that arose for consideration before the Trial Court was Issue No. 8. Since first defendant was admittedly a married daughter in order to claim right of residence, it was incumbent upon her to prove that she had been deserted by or separated from her husband as per the proviso to S. 23 of the Hindu Succession Act. 4-1. The trial court on appreciation of the evidence has held that it is the first defendant who refused to reside with her husband and it is not her husband who has deserted her. The learned Trial Judge has also referred to the categorical statement made by the first defendant in her evidence. She has in unequivocal terms stated thus : (Vernacular matter omitted.) further she has stated thus : (Vernacular matter omitted.) thus, it is a case in which the wife herself has refused to live with her husband. The husband has not deserted her. No evidence is adduced to show that at any point of time, the husband of the first defendant showed his intention to put an end to the marital relationship. No such animus on the part of the husband of the appellant is proved. That being so, the learned trial judge cannot be held to have erred in coming to the conclusion that the first defendant has failed to prove that she has been deserted by her husband or separated from her husband. The object of the proviso to S. 23 of the Act is to make a provision for residence in a family dwelling house to a daughter who is unmarried or if married has been deserted by or has separated from her husband or is a widow and not to render her homeless in case she is not entitled to seek her share in such house unless the male heirs seek partition of the family dwelling house. The object of the proviso will be defeated and it will encourage the married daughter to desert her husband or live separately from her husband if it is held that the daughter, who deserts her husband or lives on her own accord separately from her husband; is entitled to a residence in a family dwelling house. Therefore, such an interpretation has to be avoided. In addition to this, we may also point out the other evidence on record. As per the evidence of P. W. 1 - C. R. Ravanna - one of the sons of C. R. Nagappa, the vast properties were left by Sri C. R. Nagappa in favour of the first defendant and her children - defendants 3 and 4. That it is so, is also not disputed before us. P. W. 1 has stated thus :"at the time of the death of my father, Rs. 8 lakhs was in the deposit in the name of defendants-1, 3 and 4 and their children in the Nationalised Banks. They are drawing the benefits from the deposits. They also got some amount financed by my father. My father made provision of a separate house also in their names. That property bears No. 39, Hospital Road. Ex. P. 2 is another sketch showing the properties 39 and 40 of Hospital Road. House No. 39