( 1 ) THIS appeal is directed against the judgment and decree the learned Judge City Civil Court 7 court Ahmedabad declaring that the deceased Nandshanker Vishvanath Bhatt had left the suit immovable property viz. Shanker Niwas as the Joint Hindu family property in his hands and that the plaintiff and defendants Nos. I to 5 were each entitled to claim 1/18 share from out of 1/3 share of deceased in the aforesaid joint family property and that over and above his 1/18 share defendant No. 1 was also entitled to have remaining 2/3 share in the suit immovable property as surviving coparcener on the death of the deceased

( 2 ) THE facts giving rise to this appeal briefly stated are as under :- The present appellant Vidyaben is the widow of Nandshanker Vishvanath Bhatt. She was the second wife of the said Nandshanker Bhatt and defendants Nos. 4 and 5 are the two daughters born of that marriage. Defendant No. 1 is the son of Nandshanker Bhatt and defennos. 2 and 3 are the daughters of the deceased born by his predeceased first wife. Nandshanker died on 16-1-1960 at Ahmedabad leaving behind him surviving the plaintiff and all the defendants. He left the immovable property known as Shanker Niwas as described in para 3 of the plaint and also some cash as averred by the plaintiff According to the plaintiff all the property left by Nandshanker Bhatt was his self acquired property and all the parties to the suit had 1/6 share therein as his heirs. On that basis she claimed partition of her share and physical possession thereof. Defendants Nos. 1 2 and 3 resisted the plaintiffs suit by written statement ex. 9. They contended that the plaintiff had no right to file a suit in respect of the suit property; that the suit property was not separate and self acquired property of the deceased; that it was acquired by the deceased from the funds of the joint family and therefore defendant No. I who was the son of deceased was a co-parcener along with him and after his death he became the sole owner of the suit property by survivorship. In the alternative it was urged by them that even if the suit property was found to be separate or self acquired property of the deceased the plaintiff had no right to claim partition of the said immovable property under sec. 23 of the Hindu Succession Act 1956 hereinafter referred to as the Act because it was a dwelling house in possession of the members of the family and there was no necessity to partition the same. They also disputed the plaintiffs claim to allow and reserve Rs. 5000/for the education maintenance and marriage expenses of defendants Nos. 4 and 5 who were minors on the date of the suit. On the pleadings of the parties the learned Judge framed several issues at ex. 14. The learned Junge held that the suit property was not the self acquired property of the deceased Nandshanker but it was a joint family property in the hands of the deceased and that the plaintiff and each of defendants would be entitled to 1/6 share in the 1/3 share of the deceased in the suit property. The court negatived the right of the plaintiff to claim partition with regard to the remaining property and held that the remaining share viz. 2/3 of the joint family property would go to defendant No. 1 by survivorship being the son and sole surviving co-parcener. He therefore passed a preliminary decree accordingly. Against the said judgment and decree of the learned Judge below the original plaintiff Vidyaben has preferred the present appeal to this court.

( 3 ) MISS V. P. Shah learned Advocate for the appellant submitted that the lower court was clearly in error in coming to the conclusion that the suit immovable property was not the self acquired property of Nandshanker and that it was acquired out of the joint family funds. In the alternative she urged that even assuming that the suit property was the joint family property in the hands of Nandshanker the plaintiff would be entitled to 1/3 share therein in her own right