Female heirs have limited right of partition.

JUDGMENT: The plaintiff is the appellant herein.

2. The plaintiff filed a suit against the defendants, the respondents herein in O.S.No.41 of 1989 on the file of Sub Court, Villupuram for partition and separate possession. The trial Court granted a preliminary decree for partition by its judgment dated 15.7.1992. The defendants, the respondents herein, aggrieved by the same, filed first appeal in A.S.No.120 of 1995 in the District Court, Villupuram. The lower appellate Court by its judgment dated 31.10.1995 partly allowed the appeal in respect of the Items 3 and 4, the dwelling houses are concerned, however confirmed the decree in favour of the plaintiff in respect of Items 1 and 2 are concerned. Feeling aggrieved by the dismissal of the suit in respect of dwelling houses, the present second appeal has been preferred by the plaintiff, the appellant herein.

3. According to the plaintiff, the suit properties are the self-acquired properties of one Murugesa Gounder, the father of the plaintiff. He had two sons and two daughters. The first daughter Lakshmi is the plaintiff, the second daughter is the sixth defendant, the first son is the first defendant and second son is one Mani. Since Mani died, the defendant 2 to 5 were impleaded as his legal representatives. Since the plaintiff is entitled to 1/4 share in the schedule properties 1 to 4, she filed the suit claiming partition against the defendants.

4. Countering the case projected by the plaintiff, the defendants would state that the plaintiff would not be entitled to any share, as the properties were the joint family properties and at the time of marriage of the plaintiff Rs.15,000 was spent and as such, she would not be entitled to claim partition.

5. As stated above, the trial Court decreed the suit in respect of all the properties with costs. However, the lower appellate Court though did not disturb the finding in respect of Items 1 and 2 being the land properties, held that the plaintiff would not be entitled to the share in the properties, Items 3 and 4 being the dwelling houses, in the light of Sec.23 of the Indian Succession Act, since the counsel for the defendants, the appellants therein said that the plaintiff has got a right to claim for partition in respect of Items 1 and 2 being the land properties.

6. The learned counsel for the appellant would mainly argue that Sec.23 does not prohibit the right of share for the woman in dwelling houses, but it postpones the right of a female heir to claim partition of the dwelling house until male heirs choose to divide their respective shares therein. He would also point out, on the strength of the judgment reported in Janabai Ammal alias Gunabooshani v. T.A.S.Palani Mudaliar and others, (1980)1 M.L.J. 492: 93 L.W. 734, wherein it is held that the plaintiff would be entitled to the share in the dwelling house also but she would be at liberty to enforce her right for division of her share in that house when the male heirs choose to divide the shares in the dwelling house.

7. I have heard the counsel for the parties.

8. On going through the judgments of both the Courts below and having regard to the settled position of law, I am of the view, as laid down by the Division Bench in the decision reported in 1980)1 M.L.J. 492, that it cannot be contended that the plaintiff would not be entitled to any share in the dwelling house. As a matter of fact, the trial Court discussed the legal position and held that the plaintiff has got a right of 1/4 share in those dwelling-houses, however, she cannot claim immediate partition till the male heirs choose to divide their respective shares therein. But, this finding has been disturbed by the lower appellate Court without understanding the wording in Sec.23 of the Indian Succession Act and the judgment rendered by the Division Bench stated supra.

9. Sec.23 of the Indian Succession Act reads as follows:

"23. Special provision respecting dwelling houses: Where a Hindu intestate has left surviving him or

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