The first respondent filed the suit for partition claiming = share in the plaint schedule property. According to the plaintiff, the property belonged to Chellappan Achari, father of the plaintiff and defendants Nos. 2 to 5 and the husband of the first defendant. Chellappan Achari died on 29.10.1978. The plaintiff has 1/6th share in the property. She purchased the shares of defendants Nos. 4 and 5. Thus she claims = share in the property.

2. Defendants Nos. 1 and 2 contested the suit. They contended that the property did not belong to Chellappan Achari, but it belongs to first defendant.

3. The trial court held that the plaintiff has 1/6th share in the property and she having purchased 2/6 share of defendants Nos. 4 and 5, is entitled to = share in the property. The contention that the property was acquired by Chellappan Achari was accepted by the trial court. There was a prayer for a declaration that the document executed by the first defendant in favour of the second defendant in respect of the property is not binding on the share of the plaintiff. The trial court granted that prayer.

4. The plaintiff raised a contention that the house in the plaint schedule property was renovated by her with her funds. The second defendant, on the other hand, contended that he spent huge amounts for renovation of the house. The second defendant claimed reservation of house in his favour. The trial court held that the second defendant renovated the building by spending his funds and that he is entitled to get reservation of the house. Though a prayer was made by the plaintiff for grant of a permanent prohibitory injunction restraining the defendants Nos. 1 to 3 from causing obstruction to the peaceful possession of the house by the plaintiff, that prayer was not granted by the trial court. The trial court took the view that the plaintiff can reside in the room which is now occupied by her till final decree proceedings are over and she has to surrender possession thereof to defendants Nos. 1 to 3 after the final decree proceedings.

5. Though the second defendant challenged the judgment and decree of the trial court in A.S.No. 55 of 1999, that appeal was dismissed for default and the dismissal has become final. The plaintiff filed A.S.No.49 of 1999 challenging that part of the judgment and decree of the trial court by which the house was directed to be allotted to the second defendant. The appellate court held, on a consideration of the evidence of the plaintiff and the second defendant, that there is no convincing evidence as to who effected improvements. It was also held that there is no evidence to prove that the improvements were effected by any of the sharers with the consent of the remaining co-sharers. It was held that the appellant/second defendant is not entitled to get allotment of the house in his favour without valuation. However, the question whether the second defendant is entitled to get allotment of the house in equity was directed to be considered in the final decree proceedings. 6. The appellant (2nd defendant) has raised a contention for the first time in the Second Appeal that in view of Section 23 of the Hindu Succession Act, the suit is not maintainable since the only son of Chellappan Achari has not sought partition of the property. Section 23 of the Hindu Succession Act reads 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 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 righ