Judgment :- 1. This is an appeal by the defendant. The appeal arises in a suit for partition. Appellant is the brother of the respondent. The respondent-plaintiff claimed half share in the plaint schedule property. 2. The trial court, after considering the evidence and circumstances involved in the case, decreed the suit. Defendant filed an appeal. The appellate court also considered the evidence and the other circumstances relevant in the case and confirmed the judgment and decree of the trial court. New the defendant appeals. 3. There were three items of properties scheduled in the plaint. Item B is a building and a well. This appeal concerns only about this item. 4. Defendant did not raise any contention that this item is not partible at the instance of the sister the plaintiff on the basis that a daughter has no option to get partition of a dwelling house. Defendant had not taken the plea that the building in question is B dwelling house wholly occupied by the members of the family of the intestate. He contended that he constructed the building and so it is not liable to be partitioned. In short, before the trial court and before the lower appellate court, the defendant never raised a contention based on the provisions contained in S.23 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act). 5. In this second appeal, counsel for the appellant submits that the building in B schedule of the plaint is not liable to be partitioned since there is a bar under S.23 of the Act. I feel that I am not bound to examine this question in this second appeal. The integrants of S.23 of the Act have to be pleaded and a specific contention based on S.23 has to be raised, then alone, a question of law can be raised on the basis of the bar under S.23 of the Act. 6. In AIR 1986 SC 1509, (Dudh Nalt v. Suresh Chandra) the Supreme Court has observed that the finding even on a question of limitation recorded by the first appellate court on appraisal of evidence after taking into consideration the entire circumstances in the case is a finding of face which cannot be set aside by the High Court under S.100 of the Code of Civil Procedure. In the same way if a bar under a statutory provision is raised, the factual situation attracting the application of the bar is a matter for the trial court and the lower appellate court to value and assess in order to determine whether the facts required to attract the bar are existent or not. Of course, if the factual situation which has been pleaded and proved, warrants the application of the bar under a particular statutory provision, and if the court has declined to apply the provision even in such a situation, it may be within the range of a question of law. But, in a case where the specific bar under S.23 of the Act has not been pleaded and no factual format has been placed before the courts below, I do not think that in second appeal a party should be allowed to raise that question as a substantial question of law In this case, further it is seen that the defendant who new pleads the bar under S.23 of the Act on the basis that the building in question is a dwelling house had never pleaded that it was a dwelling house and wholly occupied by the members of the family of the intestate, but put forward a plea which was very much against it. On this short ground, I feel that 1 should dismiss this second appeal without issuing notice, since no substantial question of law arises for my consideration on the facts of the case. 7. I have got serious doubt about the proposition that in a case where an intestate leaves a daughter and a son to inherit his property including a dwelling house; whether S.23 of the Act would interdict the daughter from claiming partition of all the properties including the dwelling house. 8. S.23 of the Act reads thus: - "S.23. Special provision respecting dwelling-houses 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. 8. S.23 of the Act reads thus: - "S.23. Special provision respecting dwelling-houses 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". In order to attract the bar under this section, it is necessary to prove that the property is question is a "dwelling house wholly occupied by the members" of the family of the intestate. Further the bar is not a total bar to claim partition of the dwelling house, but it is only in the form of a postponement of the right of the female heir to claim partition until the male heirs choose to divide their respective shares therein. Further the proviso tells us 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. In a case where the properties are inherited by a daughter and a son and if the daughter gets herself married, until she becomes a widow or has been deserted by or has separated from her husband, she is practically deprived of her share in the property, if I accept the construction and interpretation of S.23 of the Act offered by the counsel for the appellant. I find very serious difficulty in accepting the interpretation of S.23 of the Act made by the counsel for the appellant. I feel that it will be plainly against justice and morality. 9. S.8 of the Act read with Clause.1 of the schedule forms the core section of this enactment. It declares the equality of daughter with son in matter of inheritance. I feel that it will be plainly against justice and morality. 9. S.8 of the Act read with Clause.1 of the schedule forms the core section of this enactment. It declares the equality of daughter with son in matter of inheritance. This is the significant much needed welcome reform made by the Act. It is very much in consonance with the mandate of the Constitution of India, and the brooding spirit of our fundamental law, which forbids generally gender discrimination, particularly unfavourable, antipathetic and hostile discrimination against the fair sex whom Tennison calls the "lesser man". Under the pristine Hindu Law, the daughter was not an equal heir with the son and the son did not inherit the property of his mother in the presence of daughter. The Act has made them equal co-heirs to the property of both the parents. 10. Art.44 (Part.4 of the Constitution) has made it a directive principle of State policy that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India, and in Art.39 it is commanded that the State shall in particular direct its policy towards securing that the citizens, men and women equally have the right to have adequate means of livelihood. In fact, the first part of Art.14 which takes its source from the Irish Constitution is really a declaration of equality of the civil rights of all persons within the territories of India. It enshrines a basic principle of republicanism and so the State, in the exercise of its governmental power, has of necessity to make laws even in the matter of inheritance of property remembering the constitutional command that there cannot be any hostile discrimination on the basis of sex. 11. S.8 of the Act has declared and given effect to that profound truth, the equality of daughter with the son. 11. S.8 of the Act has declared and given effect to that profound truth, the equality of daughter with the son. But S.25 reminds me of the answer of big brother pig to the horse to the protesting query of the absence of equality in Orwell's 'Animal Farm.' The reply is famous: "We are equal, but some are more equal than others." 1 quite see that the absurdity of this 'answer' which conceals a profound truth beneath its paradoxical expression 'more equal.' Not only on Animal Farm but in political societies, it is strange to see even by law "some are more equal than others." Rousseau said that "it is precisely because the force of circumstances tends to destroy equality that force of legislation must always tend to maintain it." Rashdall Hastings tells us the principle of equal human intrinsic value. He says that "every human being is of equal intrinsic value and is therefore entitled to equal respect as an exactor expression of the Christian ideal of brotherhood." Vide Rashdall Hastings 'The Theory of Good and Evil. What is implied by the principle of equal respect for all persons is impartiality in the treatment of all persons. It rules out inequality or 'rather arbitrary inequality' not justified by the requirements of social well-being or some other general and rational principle in the treatment of individuals. Frankna explains the concept of equal human intrinsic value. He says "the meaning of the equal human intrinsic value of all persons is that we should be concerned for the good lives of every individual, that the just society must, so far as possible, provide equally the conditions under which its members can by their own effort achieve the bast lives of which they are capable." This implies that human beings are entitled to be treated as if they are equal on all matters important to them. Inheriting the properties left by deceased parents, is an important matter. The law regulating the distribution of the properties left by the deceased parents among their children should certainly avoid "arbitrary inequality", not justified by a rational principle. 12. Inheriting the properties left by deceased parents, is an important matter. The law regulating the distribution of the properties left by the deceased parents among their children should certainly avoid "arbitrary inequality", not justified by a rational principle. 12. As I said earlier, if S.23 of the Act is given effect to in this case by accepting the interpretation of that section offered by the counsel for the appellant that the sister had no choice of asking for partition of the dwelling house unless the male heirs agree for a partition between them, the practical effect of it is to perpetuate a very serious hostile discrimination against the female heirs in the matter of inheriting the properties of their parents. I cannot think that the Parliament should have such an intention when it enacted S.23 of the Act. In the above said backdrop, if a benign a and meaningful interpretation is given to S.23 and if this court is called upon to decide when exactly and in what all circumstances the bar of S.23 can be made use of, I am of the view that in a case where there is only one male heir and there is no possibility of the operation of the second part of the section, namely that "the female heir can claim partition of the dwelling house until the male heirs choose to divide their respective shares in the dwelling house," it is possible to say that there is no bar for the female heir to ask for a partition of the dwelling house. Of course this court in ILR 1981 (1) Kerala 643 (Madhavan Ezhuthasan v. Vellayyappan) has held that even in cases where there is only a single male heir and so long as he chooses to live in the dwelling house, the female heirs may not be entitled to seek partition and that under S.23 of the Act, the option to keep the property as a dwelling house is personal to the male heirs and therefore it is available only till their death. 13. I feel that from a careful reading of the section it is possible to discern that the restricted right of partition to the female heir envisaged under S.23 of the Act requires at least two male heirs for its operation to interdict the female heirs to claim for partition. 13. I feel that from a careful reading of the section it is possible to discern that the restricted right of partition to the female heir envisaged under S.23 of the Act requires at least two male heirs for its operation to interdict the female heirs to claim for partition. The obvious reason is that when there is only one male heir there is no possibility of a male heir claiming partition of the dwelling house, from the other female heir as contemplated in the second part of the section. The male heir will never think of partition to his great disadvantage of losing one half share There is also an impossibility of the situation designed in the section "until the male heirs choose to divide their respective shares therein", when there is only one male heir. 14. It is plain and clear that the men folk are not restrained from demanding partition of the dwelling house until the women folk are also willing for it. Perhaps this is because in the pristine Hindu Joint Family System, men had always some supremacy over women and had the pivotal role in maintaining its unity. But it has to be remembered that this law is now applicable to Hindus who were following the Marumakkathayam system of law in Kerala where female folk had the decisive role of maintaining the unity of the tarawad and the joint family. It has to be noted that S.8 clearly mandates that female heirs are also owners of a share in all the properties including the dwelling house. But, as their right to claim partition is postponed till male heirs choose to divide their respective shares, married female heirs are disallowed from even residing in the dwelling house and claiming anything by way of rent or profits or mesne profits from the male heirs. 15. It sounds a very discordant note when the section is understood to put an embargo on the right of the female heirs which is totally inapplicable to the male heirs. I am aware that the Madras High Court also has taken the same view, this court has taken in ILR 1981 (1) Kerala 643. But, a Division Bench of the Orissa High Court has taken a different view. I am aware that the Madras High Court also has taken the same view, this court has taken in ILR 1981 (1) Kerala 643. But, a Division Bench of the Orissa High Court has taken a different view. I feel that if the view taken by this court in ILR 1981 (1) Kerala 643 is considered to be correct, it will certainly create a serious inroad in the equal right given to the female heirs under S.8 of the Act. In my judgment, the significant and peculiar language used by the legislature 'until the male heirs choose to divide' compulsively implies that the provision a: least should be restricted to mean to restrain only a female heir or heirs from asking partition where there is plurality of male heirs and not where there is only one such heir. 16. Anyhow, since the bar of S.23 has not been taken by the defendant as a contention before the trial court and before the lower appellate court, I feel no difficulty in holding that this appeal is only to be dismissed. I do so.