NAKKA RAMANARAYANA AND ORS. Vs. NAKKA NARAMMA

JUDGEMENT

(1.) So far as the right of the plaintiff to claim partition of A schedule property is concerned, no material question can be said to arise in this second appeal. Both the courts below have found that the settlement Ex. A-3. does not preclude the claim for partition being made by the plaintiff. Therefore the findings of the courts below have to be confirmed.

(2.) But a new point has been raised in this second appeal. Though it has not been put forward in the courts below, I have allowed the learned counsel for the appellant to urge the point because it depends upon the construction of section 23 of the Hindu succession Act and does not call for any enquiry into the question of fact.

(3.) The argument is that section 23 of the Hindu succession Act constitutes a bar to the claim for partition of the dwelling house which is 'B' schedule property in this suit. Mr. Sadasiva Reddy states that a dwelling house cannot be partitioned till the male heirs of the deceased choose to divide it. In this case there is only one male heir and therefore the eventuality that is contemplated by Section 23 is incapable of occurrence. His contention is that it is only where there is a plurality of male heirs that the right of partition of a female heir under section 23 can be said to arise. In this case there is only one male heir and consequently no partition among male heirs can ever take place. It is urged that the right of a female heir is dependant on there being a partition among male heirs. It is submitted that a female heir cannot be said to have any enforceable right till a partition among male heirs takes place. This contention, in my opinion is opposed to the plain language of section 23.