Female not entitled to raise question relating to claim of partition of dwelling house.

Bellie, J.

1. The defendant is the appellant in this Letters Patent Appeal. The plaintiff is the sister and the defendant is her younger brother.

2. One Kanaka Kavandar had three daughters viz., Kamlambal, Valambal and Meenakshi. He executed a will and died on 23-7-1923. In this will he gave certain properties to this two younger daughters Valambal and Meenakshi on condition that they should enjoy the same without any power of alienation till their life time and after their death the properties should to go to heirs absolutely. Valambal and Meenakshi partitioned the properties between them and each of them was in possession of separate portions in that partition the plaint 'A' schedule property was allotted to Meenakshi. The plaintiff is the daughter and the defendant is the son of the said meenakshi.

3. It is the plaintiffs case that after the life-time of Meenakshi the properties were being enjoyed on leasing out the same on warm basis and dividing the income between the plaintiff and the defendant. The plaintiff is entitled to half share in these properties, i.e., plaint 'A' schedule properties. The defendant is not agreeable for an amicable partition. The plaint 'B' and 'C schedule properties are ancestral joint family properties in the hands of the defendant. In the undivided half share of their father the plaintiff is entitled to half share. 'C schedule properties are ancestral joint-family properties in the hands of the defendant. In the undivided half share of their father the plaintiff is entitled to half share. 'C schedule property is house. The defendant is enjoying the entire income from the 'B' schedule properties and she is entitled to accounts for her share of the profits made therefrom by the defendant. As regards 'B' and 'C' schedule properties also the defendant is not agreeable for an amicable settlement. On these grounds the plaintiff has prayed for partition of three schedule properties and for accounting for the income from 'B' schedule properties from 1970-71 and future profits.

4. As pointed out by the learned single judge in the appeal in A.S. No. 105 of 1979 there is no dispute as regards the share claimed by the plaintiff. It was argued with regard to 'A' schedule properties that there was no partition between Valambal and Meenakshi and therefore the suit is bad for non-joinder of Valambal. As regards 'B' and 'C' schedule properties it is contended that these properties belonged to the father and his three brothers along with other properties and they did not partition the properties and therefore the partition of the suit properties between the plaintiff and the defendant alone cannot be maintained and particularly with regard to 'C' schedule properties it is contended that this house property is not partible.

5. The learned trial Judge accepted the case of the plaintiff that she is entitled to the shares claimed by her in the three properties and he further held with regard to 'C' schedule that whether it is partible or not will be decided by the Commissioner who would be appointed for effecting division and in case it is not partible the plaintiff will be paid money compensation. Therefore he decreed the suit for partition declaring the plaintiffs share in the 'A' schedule properties and 1/4 share in 'B' and 'C' schedule properties and also decreed for profits from 'B' schedule properties and also for accounting for the income from 'B' schedule properties from 1970-71 till date of decree, further ordering that the future profits will be decided after enquiry under Order 20, Rule 12 of the Code of Civil Procedure.

6. On appeal by the defendant Singaravelu, J., as stated above found that there was no dispute with regard to the share claimed in the properties. The learned Judge further stated that the only argument advanced was that there was no partition between the plaintiffs father and his (father's) three brothers and therefore without impleading the said brothers the present suit is bad for no