JUDGMENT - Waikar M.R. J. - This appeal raises an important question as to the interpretation, the scope and applicability of section 23 of the Hindu Succession Act (hereinafter called the Act) when a Hindu dying intestate leaves only a single male heir and female heirs specified in class-I of the schedule. There is a welter of judicial opinions on the point in the other High Courts. There is, however, no judicial pronouncement of this Court.

2. It is necessary at the outset Jo refer to section 23 of the Act which runs 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 devide their respective shares wherein; 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 dw

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