VENKATACHALAIAH, J. ( 1 ) THIS appeal by the plaintiffs is directed against the judgment and decree dated 15-10-1982 made in OS no. 62 of 1979 on the file of the Court of the Civil Judge, Ranebennur, partly decreeing their suit for partition and separate possession. The appeal is in the list of cases for admission for the day. However, notices having been issued to the respondent before the admission, Sri w. K. Joshi, learned counsel entered his appearance for respondent. This appeal is admitted and, with the consent of learned counsel on both sides, taken-up for final-hearing and disposed of by this judgment. Parties will hereinafter be referred to in relation to their array in the court-below. ( 2 ) THE facts are these : The first plaintiff Smt. Kariyavva is the second wife of one Mallurappa. Halavva, the second-plaintiff, is Mallurappa's daughter by Kariyavva. There was another daughter, Saroja, who died as an infant. Defendant, Hanumanthappa, is Mallurappa's son from his first-wife Rudravva. Rudravva predeceased -Mallurappa. The suit- properties constitute the joint-family properties. Mallurappa died on 16-7-1958. The plaintiffs, as the intestate heirs of Mallurappa, brought the present suit for partition and separate possession of their share in the suit properties. They together claimed a 7/12 share. In doing so, they also included the share of the daughter Saroja which, plaintiffs claimed, they were entitled to as Saroja's heirs. This presupposes that Saroja died after 16-7-1958. ( 3 ) DEFENDANT-HAN umanthappa's defence was that Item No. IA was his separate property and was not liable to partition. He also disputed the existence and partibility of the moveables. ( 4 ) THE trial-Court framed certain issues which, according to it, arose out of the pleadings. On those issues parties went to trial. The trial-Court held that Item No. 1a had been lost to the joint-family and its subsequent acquisition by defendant was on his own account and that accordingly, the plaintiffs could claim no share therein. In regard to the other Hem of immoveable property in item 1b, the trial- court denied a share therein to the second plaintiff on the ground that iv was the family-residential house, to which S. 23 of Hindu Succession act, 1956 was attracted and that a female heir could not claim partition till the male heirs chose to efect a partition. In regard to the moveables, only Items 9 to 14 of the comcerned plaint-schedule were held to the partible joint-family moveabies. In the final result, the trial Court lid not give any share to the daughter, the second-plaintiff. It gave a hat-share each to the mother and the Son-the first plaintiff and defendan -respectively. ( 5 ) ON the contentions urged in this abpeal, the following points fall for determination. A) Whether the trial-Court deternined and quantified the shares of the parties correctly ? b) Whether Item No. 1a which was lost to the joint-family by the court-sale even during the lifetime of Mallurappa became, upon its subsequent acquisition by defendant, part of the joint-family estate ? c) Whether in view of the fact that there was only one male-heir amongst the body of intestate heirs, s. 23 of the Hindu Succession Act, 1956 was attracted so far as the family residential-house (Item IB) was concerned ? ( 6 ) RE: Point (a); From a perusal of the trial-Court's judgment, it is difficult to find out the basis of the allocations of the shares as done by it. The parties were governed by the Bombay School of Hindu Law. The wife was entitled to be allocated an equal share at a partition. At the notional partition just before mallurappa's death the persons entitled to shares would be Mallurappa, his son Hanumanth'appa, and his wife Kariyavva, each being entitled to a l/3rd share. The l/3rd share allocable to Mallurappa at such notional partition would be the subject-matter of devolution as upon intestacy. The two plaintiffs and the defendant as Class-I heirs would each be entitled to l/3rd share out of Mallurappa's 1/3rd share. The resultant position is that first- plaintiff and defendant would each be entitled to 1/3rd plus 1/9th (4/9) share and second-plaintiff, the daughter, a l/9th share in the partible joint-family properties. Of course, so far as Item 1b is concerned, the daughter's (i. e. second-plaintiff) entitlement to partition would depend on the finding on point (c ). ( 7 ) THIS allocations is on the footing that Mallurappa left behind him only three Class-I heirs, viz. , his wife, his son and a daughter, the second-plaintiff. Of course, so far as Item 1b is concerned, the daughter's (i. e. second-plaintiff) entitlement to partition would depend on the finding on point (c ). ( 7 ) THIS allocations is on the footing that Mallurappa left behind him only three Class-I heirs, viz. , his wife, his son and a daughter, the second-plaintiff. Plaintiffs contended that at' the time of the death of Mallurappa, the other daughter, saroja, was alive and that Saroja's share, after her death, devolved upon the first-plaintiff and that her share, to the extent, stood augmented. The judgment of the trial Court is silent on this question. The question is whether Saroja predeceased mallurappa or whether the latter predeceased the former. The evidence on this question on plaintiff's side is sketchy. While Kariyavva avers that Saroja died after Mallu- rappa's death, Hanumanthappa, equally assertively, says that Saroja predeceased Mallurappa. Plaintiffs take the risk of non-persuasion. They have not produced a Death-Certificate or some other convincing evidence on the point. There is merely oath against oath on the point; and having regard to the evidential burden resting upon the plaintiffs, it requires to be held that plaintiffs have not established their case that Saroja was also an intestate heir entitled to a share in the estate-of Mallurappa and that further, that share devolved on Kariyavva. In this view of the matter, the computation of. Shares made has to proceed on the premise that Saroja was not one of the Class-I heirs of mallurappa. It follows therefore that first plaintiff and defendant are entitled to a 4/9th share each and the second-plaintiff is entitled to a 1/9th share. Point (a) is answered accordingly. ( 8 ) POINT (b): This contention relates to the question whether R. S. No. 129 of Hirekerur Village, Item- 1a of the plaint-schedule, was also a partiable coparcenary property. It is not disputed that at one point of time this item was one such. De- fendant-Hanumanthappa says that this property was lost to the family in a Court-auction in execution of a money decree against the father, mallurappa and that Hanumantha- ppa re-purchased it on 9-6-1960 without the aid of joint-family funds and that, therefore, was his separate acquisition. It is not disputed that at one point of time this item was one such. De- fendant-Hanumanthappa says that this property was lost to the family in a Court-auction in execution of a money decree against the father, mallurappa and that Hanumantha- ppa re-purchased it on 9-6-1960 without the aid of joint-family funds and that, therefore, was his separate acquisition. The evidence of the defendant (DW 1) is that after the land was lost to the family in Court auction even during Mallurappa's life-time, defendants maternal grand-father, dasappa, provided funds for its repurchase which was effected some time after the death of Mallurappa and this purchase was for the benefit of the defendant. Ex. D. 4 is the sale-deed. The recitals in ex. D-4, as seen from the certifed copy Ex. D-4 (a) show that the purchase was made by Dasappa in the name of the defendant who was ftien a minor. Dasappa is described as the guardian of the minor, Molla- ppa Doddaveerappa Thimmenajalll, the vendor under Ex. D-4 wio is examined as DW 2, speaks to the court sale in his favour and his taking possession pursuant thereto. He also says that after two years of the Court sale, dasappa requested him to still the land to Hanumanthappa. The price was Rs. 6,000. ( 9 ) PLAINTIFFS do not refer to the court sale and the subsequent purchase by the defendant in their pleadings. Their case sought to be made out in the course of evidence is that mallurappa himself had borrowed a sum of Rs. 3,000 to enable the repurchase and that the balance of rs. 3,000 was found by the sale of family jewels. This is the version of the first-plaintiff, Kariyavva (PW. 1) in the course of her evidence. She further says that Mallurappa himself, during his life-time had placed the money into the hands of Dasappa so as to enable him to negotiate and secure the property back. ( 10 ) WE have been taken through the evidence on this point. PW. 1 was not able to give the name of the person from whom Rs. 3,000 is said to have been borrowed. Indeed, the trial-Court rightly observed that if mallurappa had in his possession jewellary which could fetch him rs. 3,000 and had the resources to borrow, he would not have allowed the property to be sold in Court- auction at all. 3,000 is said to have been borrowed. Indeed, the trial-Court rightly observed that if mallurappa had in his possession jewellary which could fetch him rs. 3,000 and had the resources to borrow, he would not have allowed the property to be sold in Court- auction at all. We agree with the appreciation of the evidence ,by the trial-Court on this point. We find nothing in the evidence on record which suggests a different conclusion. We hold that the property was lost to the family upon its sale at the Court-auction and that the subsequent acquisition under Ex. D-4 was for the benefit of defendant. We hold and answer Point (b) against the appellants. ( 11 ) RE: Point (c): The Court-below was persuaded to the view that s. 23 of the Hindu Succession Act, 1956, which is a special provision respecting dwelling-houses, was attracted to the case and that second- plaintiff could not claim partition in respect of item IB. Sri Ashok B. Patil, learned counsel for appellants, contends that S. 23 is not attracted to a case where the deceased leaves behind only one male heir. We must say, at the out-set, that the view taken by the trial-court runs counter to the ruling in Devadatta San- karrao Kurikoti v. Krishna Bai Vinayaka rao Handigol 1971 Mys. LJ Sh. N. 91. That case was a binding precedent so far as the trial Court was concerned. ( 12 ) S. 23 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 a 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". This provision, apparently, is intended to prevent a disintegration of the family house at the instance of female heirs by providing for a corresponding ascendancy of the rights of male-heirs so far as the family dwelling^ house is concerned. The right of female heirs to claim a partition of the family dwelling-house is made contingent upon the male heirs choosing "to divide their respective shares therein". But, when there is only one male-heir, quite obviously the precondition envisaged by this special provision cannot be satisfied as indeed, first, the intestate Hindu cannot be said to have "left surviving him or her both male and female heirs" and secondly, the contingency of the male-heirs choosing "to divide their respective share therein" does not admit of being fulfilled. Now two possible views emerge as to the consequences of this innate limitations of the situations, i. e. , the requirements of S. 23 cannot be satisfied or complied with. One view, which was preferred and accepted in some judicial pronouncements, is that S. 23 is a special provision and the non obstante clause gives this Section an over-riding effect and that unless the factual situation of a case satisfies the conditions of S. 23, the right of female heirs for a partition of the family dwelling house does not arise at all. It the language is so plain to this effect, there is, it is said, nothing that Courts could do about it. The other view is that S. 23 is not attracted to a case where the factual conditions for its attraction do not exist and where consequently its requirements are incapable of being satisfied, Sri Ashok says the latter is the proper view to take while Sri W. K. Joshi, learned Counsel for respondent, would say that the former is the- correct view ( 13 ) IN Devadatta Shankarrao Huri koti v. Krishna Bai Vinayaka Rao , Handigol (RSA No. 847 of 1968 decided on 7-12-1970), Malimath J. considered the question and said ; "in order that there should be a division of the respective shares of the male heirs, it is clear that there must be at least two male heirs of the deceased coparcener in which case alone one can contemplate the possibility of there being a division. I do not find any warrant for construing the expression 'male heirs' to mean 'male heir'. I do not find any warrant for construing the expression 'male heirs' to mean 'male heir'. In my opinion, it is only in cases where the deceased coparcener dies leaving behind him more than one male heir that the provisions of S. 23 can be invoked". The view taken by the Orissa high Court in Hemalata Dei v. Uma- shunkari Molurana (AIR 1975 Orissa 208) is to the same effect. However, the calcutta High Court in Arun Kumar sanyal v. Jnanendra Nath Sanyal (AIR 1975 calcutta 232) and the Madras High court in Junabhai Ammal v. T. A. S. Palani mutlaliar (AIR 1981 Mad. 62) have taken the contrary view. ( 14 ) THE reasoning of the Calcutta High Court is this :". . . . . . . . IT is clear from the section that the Legislature does not approve -of division of a dwelling house at the instance of a female heir against the will of the male heirs. This restriction which has been imposed by S. 23 prevents fragmentation or disintegration of a family dwelling house at the instance of the female heirs to the hardship and difficulties to which the male heirs may be put. A hindu may die leaving a sou and a number of daughters. If at the instance of any such daughters' the dwelling house is allowed to be partitioned against the wish of the son, he may be put to great hardship. The house may not be capable of partition and in that case it will have to be sold. If, in such a case, it is held that S. 23 is inapplicable because of the absence of male heirs as contended on behalf of the appellant in our view, it will defeat and frustrate the very purpose for which the section has been enacted. In the first instance, the section imposes a bar when it provides ''the right of any such female heir to claim partition of the dwelling house shall not arise" but the bar is removed only on the happening of the contingency, namely, when the male heirs choose to divide their respective shares therein. It may be that there is one male heir and one female heir and there may not be any chance of that contingency to happen, but that will be no ground to say that the section is inapplicable. . . . . . It may be that there is one male heir and one female heir and there may not be any chance of that contingency to happen, but that will be no ground to say that the section is inapplicable. . . . . . . . " (vide para-8 ). The Madras High Court approved this reasoning. It has held : "s. 23 is a special provision dealing with the partition of a dwelling house and the right of the male and female heirs of the inte state therein. There can be no doubt that a female heir specified in Class I of the Schedule to the Act inherits a share in a dwelling house absolutely. But, S. 23 postpones the right of such a female heir to claim partition of the dwelling house until the male heirs choose to divide their respective shares therein. Even in cases where there is only one male heir and one or more female heirs of the inte state in a Hindu joint family, the female heirs cannot claim partition of the dwelling house until that male heir chooses to divide the respective shares therein. Parliament, by using the expression "until the male heirs choose to divide their respective shares therein" in S. 23 cannot be deemed to have intended that the restriction is to operate only if there are two or more male heirs in the family of the Intestate and not when there is only a single male heir. Acceptance of contrary view will cause gross injustice to the single male heir and the very object with which the Section has been enacted would be completely nullified. In such cases, the hardship that would be caused to the female heirs in not being able to claim partition is certainly relatively less than the injustice that could be done to the single male member'". ( 15 ) THE purpose of S. 23 of the act is to preserve the integrity of the family house. It seeks to protect the family-house from disintegration at the instance of female heirs. ( 15 ) THE purpose of S. 23 of the act is to preserve the integrity of the family house. It seeks to protect the family-house from disintegration at the instance of female heirs. ( 16 ) THE view that S. 23 has an over-riding effect and that unless the the condition "male 'heirs choose to divide their respective shares" happens, the right of the female heirs to claim partition would not at all arise, in our opinion unduly emphasises the latter part of S. 23, bringing in its wake certain 'constructional difficulties as it over looks the first part of S. 23 which provides as to when the provisions of S. 23 are attracted. S. 23 is attracted only where an intestate Hindu leaves surviving both male and female heirs. The second part deals with a position which becomes relevant only when the section is itself attracted. Under the Act, a female heir suceeds to the estate of a Hindu dying intestate. That succession cannot be held in abeyance. Under certain circumstances, the right to a share vesting in an heir is rendered an imperfect right in the sense the remedy of reducing it in-esse by actual physical partition is postponed till the happening of another event. The conditions that make the right imperfect are referred to in the first part of Section 23, i. e. "that a Hindu intestate has left both male and female heirs and his property includes a dwelling-house wholly occupied by the member of his family. " The non-obstante clause operates only upon the existence of these conditions. The other event which renders the right, again, a perfect right is the event by which the male heirs choose to divide their respective shares therein. This would suggest that Section is attracted only if the conditions contemplated in the first-part of the Section conies into existence. If there is only one male-heir, the circumstances envisaged in the first-part of the section do not come into existence and the section does not come into operation at all. The provisions of this section cannot be applied to a case where there is a single male-heir without rewriting the section and reading into it quite a few alterations of language, structure and syntax. The plural expression "heirs" and the expressions "male heirs choose to divide their respective shares" would then become wholly inopposite and unmeaning. The provisions of this section cannot be applied to a case where there is a single male-heir without rewriting the section and reading into it quite a few alterations of language, structure and syntax. The plural expression "heirs" and the expressions "male heirs choose to divide their respective shares" would then become wholly inopposite and unmeaning. Both the literal construction and the intendment would suggest that the postponement of partition is conditional upon there being a plurality of male-heirs and not otherwise. Therefore, the postponement of the right of female heirs to claim partition respecting the family dwelling- house was only where there was a plurality male heirs, a situation which, in turn, renders the satisfaction of the next condition, namely, that they choose to divide their respective shares therein a possibility and a reality. Any other construction would lead to this that while the section, on its plain language, prescribes a condition which admits of being fulfilled, we would, by construction, introduce into the section a condition which does not admit of fulfilment at all. ( 17 ) WE, therefore, respectfully agree with and approve of the view taken by Malimath, J in R. S. A. No. 847 of 1968. With great respect we find ourselves unable to subscribe to the view taken by the Calcutta (1) air. 1975 Cal. 232 and Madras (2) AIR. 1981 Mad. 62, High Courts on the point. Accordingly, we hold that, to the present case, S. 23 is not attracted at all as defendant was the only male-heir on the scene. We accord- dingly, hold that the second-plaintiff who is held entitled to l/9th share is also entitled to work-out a partition on item-1 B, the family dwelling house. ( 18 ) WE, accordingly, hold and answer Point (c) in favour of the appellants. ( 19 ) ANOTHER question that was posed during the arguments was : does the expression "male heirs" in that section take within its sweep all the male-heirs of Class I which, for instance, include the son of a predeceased daughter or is its import restricted by other criteria indicated in that section and confined only to such "male-heirs" as were entitled to reside and were actually residing with the deceased in the family dwelling house? The expressions that qualify "male-heirs" in s, 23, it is urged, are "the members of his or her family" and in relation to the dwelling house wholly occupied by them. This, it is said, brings in some considerations which operate as limiting factors as to the identify of those "male-heirs" who are referred to in S. 23. First is the concept that such heirs be "members of his or her family" which, quite obviously, does not render all maleheirs in Class I eligible to be reckoned as such in the context and for the purposes of S. 23. Though a son of a predeceased-daughter may also be a class-1 heir, he not being, in terms of the requirements of S. 23, a "member of his or her family", the further question of his occupation of the dwelling house as member of the deceased family would not arise. The scheme of S. 23, it is urged, would require that the male-heirs referred to in S. 23 are such male-heirs referred to in S. 23 are such male heirs as constitute the "members of his or her family" and not all male-heirs in Class I. This proposition is not without its interesting aspects and is eminently arguable ; but in the present case, however, as defendant, admittedly, falls within even such restricted meaning of male-heir in S. 23, it is not necessary to pronounce finally on this point. ( 20 ) IN the result, for the foregoing reasons, we allow this appeal in part and modify the judgment and decree of the court-below. We hold that first-plaintiff and defendant have a 4/9th share each and the second plaintiff l/9th share. We also hold that Item IB, family dwelling house is also liable to partition. In the circumstances, the parties are directed to bear their own costs in this appeal. --- *** --- .