A female heir cannot ask for partition of a dwelling house against the wishes of the male heir under Section 23 of the Hindu Succession Act, unless the male heir chooses to divide the dwelling house.

( 1 ) THE present suit for partition was filed by one Maya Dutta, daughter of Radha Raman Das alias Radha Charan Das, a Hindu governed by the Dayabhaga School of Hindu Law. He was the owner of the disputed property, being premises No. 3b Collins Street, Calcutta. The defendant, Surjya Kumar Das, is her brother. On the 4th April, 1969, she instituted the Suit No. 964 of 1969 against her brother in this Court for a declaration that she and her brother belonged to a joint family governed by the Dayabhaga School of Hindu Law and she was the sole and absolute owner of the premises No. 3b Collins Street, Calcutta, and for other reliefs. Ultimately, the parties came to terms and a decree was passed that the parties were governed by the Dayabhaga School of Hindu Law and they were absolute owners of the disputed property to the extent of a moiety share each. In view of the strained relations between them, It has become inconvenient for her to enjoy the property. She called upon her brother to effect an amicable partition. Her brother did not do so and hence the suit for partition and accounts.

( 2 ) THE defendant filed a written statement alleging, inter alia, that the plaintiff was out of possession for more than twelve years and so, she could not ask for partition without paying ad valorem court fees. The parties were governed by the Mitakshara School of Hindu Law.

( 3 ) THE learned Judge of the City Civil Court accepted the plaintiff's version and overruled the defendant's contention regarding the provisions of Section 23 of the Hindu Succession Act. He stated that though the previous Suit No. 964 of 1969 was compromised, it was not registered and hence, that decree had no value in the eye of law. The claim for accounts was not allowed. He held that the parties had moiety share each and, a preliminary decree for partition was passed. The propriety of this decision has been challenged by the defendant in this appeal.

( 4 ) IT has been contended on behalf of the appellant that the decision of the learned Judge is erroneous because he has stated that Section 23 of the Hindu Succession Act can have no application unless the previous owner left more than one male heir. In this case, the previous male owner, viz. , Radha Raman, left only one son and one daughter and hence, the provisions of Section 23 of the Act were out of the way. This decision is incorrect. The defendant is the only daughter of Radha Raman and only sister of the defendant-appellant. So, according to the provisions of Section 23 of the Act, she cannot ask for partition.

( 5 ) THE learned Advocate appearing on behalf of the respondent has stated that the provisions of Section 23 of the Hindu Succession Act will apply and the decision of the learned Judge in this respect is correct.

( 6 ) IT has already been indicated that the prayer for accounts was negatived. This has not been challenged. So, the first question arises about the interpretation of Section 23 of the Hindu Succession Act. This section says that where a Hindu intestate has left surviving him both male and female heirs specified in clause I of the Schedule and his property includes a dwelling-house wholly occupied by the members of the 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.

( 7 ) THE proviso to that section says that where she is the daughter, she will have a right of residence only if she is unmarried or she has been deserted by or has separated from her husband or is a widow. In this case, the plaintiff is not unmarried or has not been deserted by or has been separated from her husband or is a widow, within the meaning of the proviso to Section 23 of the Act.

( 8 ) THE provisions of Section 23 of the Act were considered by a Bench o