JUDGMENT Jagdish Sahai, J. - On a reference made by our brother Asthana on 25th of August, 1966 this case has come before us for decision. In order to appreciate the controversy between the parties it is necessary to reproduce the genealogical table of the family. The property in dispute is a house situate in the city of Faizabad. The house belonged to Bhagoley Halwai. On his death on the 15th of June, 1957 Bhagoley left the sons and daughters mentioned in the genealogical table reproduced above. Shiam Lal died on the 30th of November, 1958, leaving a widow and two daughters Smt. Savitri Devi and Smt. Kirti. Devi both of whom are married. Srimati Savitri Devi and Srimati Kirti Devi filed Suit No. 9 of 1961 in the Court of Munsif Faizabad for a partition claiming 2121 share in the house in dispute. The suit was contested, inter alia, on the plan that it could not be partitioned because of the provisions of Section 23 of the Hindu Succession Act (hereinafter referred to as the Act) . The learned Munsif framed issue No. 2 in respect of this plea. That issue reads: "Whether the house in suit is not partible as alleged in paragraph 14 of the written statement?" He answered the issue in the following words:- The burden of this issue was on the defendants. They have not adduced any oral or documentary evidence. therefore I decide this issue against the defendants." The learned Munsif, however, observed later on that he agreed "with the defendants counsel that in view of the provision contained in Section 23 of the Hindu Succession Act the plaintiffs are not entitled to claim partition unless and until male hairs choose to divide their respective shares." In effect his finding is that though the plaintiffs could claim a partition they could do so only after the male heirs of Bhagoley had chosen to divide their respective shares. Having found that, the learned Munsif dismissed the suit on the 30th of April, 1962. The plaintiff went in appeal to the District Judge. Faizabad was transferred it to the Additional Civil Judge of that place. The learned Additional Civil Judge dismissed the appeal holding that it had no force. There after the instant second appeal was filed in this Court. The plaintiff went in appeal to the District Judge. Faizabad was transferred it to the Additional Civil Judge of that place. The learned Additional Civil Judge dismissed the appeal holding that it had no force. There after the instant second appeal was filed in this Court. The case came up for hearing before Asthana, J. who opined that the question of law raised was an important one and should be decided by a Division Bench. He, therefore, made a reference as already pointed out earlier. This is how the case has come before me. Learned counsel for the parties are agreed that the house was acquired by Bhagoley Halwai and not constitute joint Hindu Family property owned by himself, his sons and his daughters. That being the position the question that requires consideration is as to whether on his death on the 15th of June, 1957, the devolution of interest took place under the provisions of Section 6 or Section 8 of the Act. Section 6 so far as it is relevant for our purposes reads: 6. When a male Hindu dies after the commencement of this Act having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivor-ship upon the surviving members of the coparcenary and not in accordance with this Act Sec. 8 of the Act reads: "8. The property of a male Hindu dying intestate shall devolve according to the pro-vision of this chapter - (a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule; (b) secondly, if there is no heir of Class I. then upon heirs, being the relatives specified in Class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased." In the instant case admittedly Bhagoley was the absolute owner of the house in dispute. The house was not coparcenary property. Consequently Section 6 of the Act cannot aptly to the facts before us and the case must be governed by Section 8 of the Act. That being the position, on the death of Bhagoley the heirs that he left were his widow, his sons and his daughters. The house was not coparcenary property. Consequently Section 6 of the Act cannot aptly to the facts before us and the case must be governed by Section 8 of the Act. That being the position, on the death of Bhagoley the heirs that he left were his widow, his sons and his daughters. There can be no dispute that Shiam Lal was an heir. There can also be no dispute that when the property came into the hands of the heirs of Bhagoley it was not coparcenary property and his various heirs were not coparcenaries but co-partners. On the death of Shiam Lal the entire bundle of his rights in the house devolved upon his two daughters and his widow, he having left no male issue. Section 23 of the Act so far as it is relevant for our purposes reads: 23. 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 right of residence therein: Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow." Admittedly Shiam Lal was absolute owner of his share in the house. He left no sons. The question, therefore, that required consideration is whether in the circumstances mentioned above there can be any application of the provisions of Section 23 of the Act to the facts before us. Haying carefully perused that provision we are satisfied that it has no application. Section 23 can only apply if Shiam Lal had left male heirs. Sri Umesh Chandra Srivastava contends that in order to determine the applicability or otherwise of Section 23 of the Act we must go back to the position as it existed on the death of Bhagoley Halwai. He has however not been able to support his submission either by any statutory provision or by a judicial precedent. Sri Umesh Chandra Srivastava contends that in order to determine the applicability or otherwise of Section 23 of the Act we must go back to the position as it existed on the death of Bhagoley Halwai. He has however not been able to support his submission either by any statutory provision or by a judicial precedent. It is trite that Shiam Lal was not a limited but an absolute owner. It is equally elementary that the other heirs left by Bhagoley were absolute owners and not limited owners of their share in the house in dispute. It is only in the case of limited owners that the question of devolution has to relate back to the death of the last absolute male owner of the property. That rule obviously cannot be applied to the facts of the present case because there can be no manner of doubt that succession would open in the instant 'case on the death of Shiam Lal and not on the death of Bhagoley Halwai. That being the position we have to see as to which heirs did Shiam Lal leave. We, therefore, do not see how Section 23 of the Act can apply to the facts before us. We would like to point out that there is no dispute that Shiam Lal could enforce a partition during his lifetime. We have already said that he was a copartner and not a coparcener along with the other heirs of Bhagoley Halwai. There cannot be any escape from the conclusion that on the death of Shiam Lal the entire bundle of his rights in the house in dispute devolved upon his two daughters mentioned above and his widow. No principle of law, no statutory provision and no judicial authority has been brought to our notice to the effect that in circumstances like these the entire bundle of rights of Shiam Lal in the house in dispute devolved upon his two daughters and his widow minus the right of partition in the house in dispute. There can be no assumption that on Shiam Lal's death his daughters and his widow inherited the entire bundle of rights of Shiam Lal in the house in dispute minus the right to enforce a partition. Any presumption in favour of such a conclusion would be contrary to well settled legal principles and all the canons of law of inheritance. There can be no assumption that on Shiam Lal's death his daughters and his widow inherited the entire bundle of rights of Shiam Lal in the house in dispute minus the right to enforce a partition. Any presumption in favour of such a conclusion would be contrary to well settled legal principles and all the canons of law of inheritance. In our opinion, therefore, the trial court as also the first appellate Court were in error in holding that the daughters of Shiam Lal could not maintain Suit No. 9 of 1961. The only reason assigned by the learned Munsif for doing so is contained in the following extract from his judgment: - "As it will appear from the plaint succession opened at first place on 15-6-1957 When Bhagoley died leaving behind both. males and female heirs and again on 30-11-1958 succession opened to the extent of the share of Shiam Lal who left behind only female heirs. No doubt succession cannot remain in abeyance and the heirs would be deemed to have inherited their rights on both the dates but for actual partition Section 23 has to be looked into. Without actual partition in the heirs of Bhagoley including Shaim Lal, it is not possible to make actual partition among the heirs of Shaim Lal. So both the successions are almost interconnected from the point of view of actual partition. Consequently it cannot be said that without actually separating the share of Shiam Lal the actual partition among the heirs of Shiam Lal is possible." The learned Civil Judge's approach to the matter was no better than that of the Munsif. He observed: - "It is commonly admitted to the parties that the house in suit originally belonged to Bhagoley Halwai who was the common ancestor of the parties. It is also commonly admitted to the parties that Bhagoley left behind both, male and female heirs upon his death on 15-6-1957. Naturally, therefore, the succession amongst the heirs of Bhagoley opened on 15-6-1957." Till this date the house in suit stands un-partitioned amongst the descendants of Bhagoley Halwai. Consequently there is no specific partition of the house in suit which is opened to physical partition amongst the plaintiffs-appellants as the specific property of their father, Shiam Lral. Naturally, therefore, the succession amongst the heirs of Bhagoley opened on 15-6-1957." Till this date the house in suit stands un-partitioned amongst the descendants of Bhagoley Halwai. Consequently there is no specific partition of the house in suit which is opened to physical partition amongst the plaintiffs-appellants as the specific property of their father, Shiam Lral. In the above circumstances the partition in its physical shape will take place amongst all the descendants of Bhagoley, who are legally entitled and alive. Since Bhagoley died leaving both male and female heirs and the house in suit is the dwelling-house of Bhagoley which is wholly occupied by the descendants or the members of the family of Bhagoley, hence I entirely agree with the learned trial court that Section 23 of the Hindu Succession Act does not hit the plaintiff's present suit and the appeal. Since other male members of the family of Bhagoley Halwai have not joined the present suit for partition; hence under Section 23 of the Hindu Succession Act, the plaintiff-appellants, who are merely the female descendants of Bhagoley; does not lie." It is clear from the judgment of the learned Civil Judge that he . was not clear in his mind on the question as to on -what date would the right in favour of the daughters to succeed arise. The date on which Bhagoley died is wholly immaterial for the decision of the present case and in our opinion the learned Munsif was in error when he thought that the succession on the death of Bhagoley and succession on the death of Shiam Lal were interconnected. For the reasons mentioned above we set aside the decrees passed by the learned Munsif dated the 30th of April, 1962 and the learned Additional Civil Judge dated the 23rd May, 1963 and decree the suit of the plaintiffs-appellants to the extent of 1114th in the entire house. The parties will bear their costs in this court but the plaintiffs-appellants shall receive from the defendants-respondents their costs in the Court of the Munsif as also in the Court of the Additional Civil Judge.