The restriction imposed by Section 23 of the Hindu Succession Act, 1956, on a female heir to claim partition of a dwelling house also applies to her transferee.

( 1 ) THIS appeal is at the instance of the plaintiff and it arises out of a suit for declaration of the plaintiffs title to the disputed property and partition of the same by metes and bounds.

( 2 ) THE appeal involves a point of law of first impression relating to the construction of Section 23 of the Hindu Succession Act, 1956. The point is whether a transferee of the female heirs is entitled to claim partition of the dwelling house when the male heir does not choose to divide his share therein. In other words, whether the restriction imposed by Section 23 on a female heir to claim partition also applies to her transferee. In order to appreciate and consider the point, the facts of the case may be stated in brief.

( 3 ) THE disputed property which is the dwelling house belonged to the father of the appellant, late Motilal Sanyal. He died intestate on May 30, 1960 leaving behind him his widow Khiroda Sundari Dasi, two sons, namely, the appellant and the respondent No. 1 and three daughters, Atasi, Anima and Anurupa, as his heirs under the Hindu Succession Act, 1956. Each of the said heirs inherited l/6th share in the disputed dwelling house. The appellant transferred his undivided l/6th share which he inherited from his father to his elder brother, the respondent No. 1 by a deed of sale dated July 6, 1962. The appellant's mother made a gift of her undivided l/6th share to the respondent No. 1 by a registered deed of gift dated October 30, 1961. The respondent No. 1 thus acquired a half share in the dwelling house. Atasi and Anima gifted their respective 1/6th shares in the dwelling house to the appellant by two registered deeds of gift both dated February 11, 1964. The appellant, therefore, acquired 1/3rd share in the dwelling house. The third sister Anurupa, however, retained her 1/6th share in the dwelling house. The suit has been filed by the appellant on the ground that joint possession of the dwelling house is inconvenient. He has also prayed for a declaration of his l/3rd share which he acquired by gift from his two sisters.

( 4 ) THE main defence of the respondents Nos. 1 and 2, namely, the elder brother and the younger sister of the appellant, who contested the suit was that the appellant being the transferee of his sisters Atasi and Anima had no right to claim partition of the dwelling house and as such the suit was not maintainable. The learned Subordinate Judge upheld the said contention and came to the finding that in view of Section 23 of the Hindu Succession Act, the appellant being a transferee of the female heirs specified in class I of the schedule to the said Act was not entitled to claim partition of the dwelling house. Upon this finding, he held that the suit was not maintainable and dismissed the same. Hence, this appeal.

( 5 ) IN order to consider the propriety of the said finding of the learned Subordinate Judge and the respective contention of the parties, it is necessary to refer to Section 23 which runs as follows:"special provision respecting dwelling-houses -- Where a Hindu intestate has left surviving him or her both male and female heirs specified in class 1 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. "

( 6 ) SECTION 23 is a special provision respecting dwelling-houses. It will apply only when a Hindu dies intestate leaving, both male and female heirs specified in class I. There can be no doubt that a female he