Judgment : Suit for partition. Plaintiffs have filed the suit alleging that suit properties belonged to one Ethirajulu and his wife Andalammal, that the plaintiffs 1 and 2 and the third defendant are daughters and defendants 1 and 2 are sons of said Ethirajulu and Andalammal, that ‘A’ Schedule Property building belonged to Ethirajulu, that ‘B’ Schedule property belonged to Andalammal, that Ethirajulu died on 212. 1992, that Andalammal also died on 20.6.1997, that suit properties have devolved upon the plaintiffs and the defendants 1 to 3 in equal share, that the plaintiffs and the defendants are each entitled to 1/5th share, that the plaintiffs and the defendants are in joint possession of the properties, that the first plaintiff is residing in ground floor of ‘A’ schedule property while the defendants 1 and 2 are residing in ground floor and first floor of ‘B’ schedule property. that the defendants 1 and 2 have let out portions of ‘A’ and ‘B’ schedule buildings to various tenants from whom they are collection a sum of Rs.20,000 as rent per month, that the father Ethirajulu was having leasehold right in respect of a building situated in Door No.25, E.V.R. Periyar Salai, Periamet, Chennai, that the father was running a business under the name and style “M/s.Mohana Travels”, that after th death of the father, the business has been closed, that the building that was been taken on lease by the father has been sub-let to one Sri Thiru Murugan Travels, from whom the defendants are collecting Rs.5,000 as rent, that the plaintiffs are each entitled to 1/5th share in the rental income collected by the defendants 1 and 2, that so far the plaintiffs have been denied their due share, that the plaintiffs demanded partition and separate possession of their 2/5th share, that they also issued a notice on 14. 1999, that the defendants in spite of receipt of notice have not chosen to send any reply nor they have complied with the demands and that therefore the plaintiffs are constrained to file the suit for partition and separate possession of their 2/5th share in the suit properties. 2. 1999, that the defendants in spite of receipt of notice have not chosen to send any reply nor they have complied with the demands and that therefore the plaintiffs are constrained to file the suit for partition and separate possession of their 2/5th share in the suit properties. 2. The defendants 1 and 2 filed their written statement contesting the claim of the plaintiffs by contending that it is true that the suit properties, namely ‘A’ and ‘B’ schedule properties originally belonged to father and mother of the plaintiffs and the defendants respectively, that the second defendant is not entitled to any share because he has converted himself into a Muslim and has married a muslim lady, that the first defendant is in occupation of the first floor of the building bearing Door No.14, Bharathi Dasan Road, Teynampet, Chennai that the second defendant is in occupation of the second floor of the said building, that it is true that ‘A’ and ‘B’ Schedule buildings have been let out to tenants, that it is false to state that the defendants ‘1 and 2 are collecting rents of Rs.20,000 per month, that the defendants are only collection rent to the tune of Rs.7,750 per month, that only out of rental income, the defendants are maintaining the buildings, paying statutory charges including Corporation-tax, that the plaintiffs are not entitled to share in the rental income, that it is not true to say that the buildings situated in E.V.R.Salai has been sub-let, that the plaintiffs filed O.S.No.8322 of 1999 before the City Civil Court praying for an injunction restraining the defendants from alienating the suit properties, that the plaintiffs ought to have filed the suit including the relief of partition, that they have not obtained permission of the court reserving any right to file separate suit for partition and that therefore claim of partition is deemed to have been given up, that ‘B’ schedule building is in occupation of these defendants being the male members of the family, that therefore as per Sec.23 of the Hindu Succession Act, the plaintiffs cannot ask for division or allotment of their separate share in the same and that for these reasons the suit may be dismissed. 3. 3. On the above pleadings, the following issues are framed of trial: .• (1) Whether the plaintiffs are entitled to partition and separate possession of their 2/5 share in ‘A’ and ‘B’ schedule suit properties. .• (2) Whether the plaintiffs are entitled to means profitse and .• (3) To what reliefs, if any, they are entitlede 4. Issue No.1: On going through the pleadings of the parties, one can see that the defendants have not specifically denied the share claimed by the plaintiffs in respect of the suit properties. The defendant in their written statement have clearly admitted that ‘A’ schedule of the suit properties comprised in Door No.13, Kavingar Bharathi Dasan Road, Teynampet, Chennai was purchased by their father Ethirajulu and it is his separate and self acquired property. The nature of the property and the acquisition made by the father in respect of ‘A’ schedule property is not disputed by the defendants in their written statement. Similarly the defendants also do not dispute the fact that ‘B’ schedule property comprised in Door No.14, Kavingar Bharathi Dasan Road, Teynampet, Chennai was purchased by their mother Andalammal as her property. So, the defendants do not question the claim of the plaintiffs that ‘A’ and ‘B’ schedule properties are the absolute properties belonging to their father and mother respectively. It is also not denied that Ethirajulu, the father died in 1992 and Andalammal, the mother died in 1997. The plaintiffs and the third defendant are three daughters born to these partner, while the defendants 1 and 2 are the sons. So, these five persons have succeeded to the properties left behind by Ethirajulu and Andalammal. Therefore, by virtue of the fact that these properties are the separate and absolute properties of father and mother, after their death these children, namely the plaintiffs and the defendants have succeeded to their estate to an extent of each 1/5th share. This, also is not specifically denied by the defendants. 5. The defendants have stated that of the five children born to these Hindu parents, the second defendant has ceased to be a Hindu since he has married a Muslim lady and therefore he is not entitled to succeed to his father, who died as Hindu. Obviously the first defendant seems to rely upon Secs.2 and 26 of the Hindu Succession Act, 1956 in raising such a contention. Obviously the first defendant seems to rely upon Secs.2 and 26 of the Hindu Succession Act, 1956 in raising such a contention. Sec.2 of the Hindu Succession Act simply provides the class of persons whose properties will devolve according to Hindu Succession Act. It is only the property of those persons mentioned in Sec.2 that will be governed according to the provisions of the Act. The section says that Hindu Succession Act is applicable to all Hindus. It is admitted that the parents of the plaintiffs and the defendants died as Hindus and therefore their succession will be governed by the provisions of the Hindu Succession Act. 6. The defendants also rely upon Sec.26 of the Hindu Succession Act to contend that since the second defendant converted himself as a muslim he is not entitled to succeed to his Hindu father. Sec.26 does not disqualify a convert. Sec.26 read as follows: “Where before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu conversion to another religion, children to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens.” Therefore, a plain reading of this section would show that no disqualification is attached to a Hindu who has ceased to be a Hindu and who has converted to another religion. The disqualification is only in respect of descendants of the convert, who are born to convert after such conversion. Those descendants alone will be prohibited from inheriting the properties of any of the Hindu relatives. The other disqualifications for a person to succeed to the estate of his predecessor is provided under Secs.24, 25, 26 and 28 of the Hindu Succession Act. Sec.24 provides, “certain widows remarrying may not inherit as widows”. Sec.25 disqualifies a murderer from inheriting the property of the person murdered. Sec.28 provides that no person shall be disqualified on the ground of any disease, defect or deformity, or save as provided in the Act, on any other ground whatsoever, Sec.26 only provides disqualification so far as a convert from Hindu is concerned. Even this Section does not disqualify a Hindu who has converted to another religion for inheriting or succeeding to his parents or others. Even this Section does not disqualify a Hindu who has converted to another religion for inheriting or succeeding to his parents or others. Only the heirs or children of such a converted person are disqualified from inheriting the property of their Hindu relatives unless such children are descendants of Hindus at the time succession open. 7. So, even assuming for a moment that the second defendant has converted into a Muslim, there is no disqualification attached to him for claiming his due share from out of his parents properties. Moreover, it is only stated in the written statement that the second defendant has married a Muslim lady and we do not know whether the second defendant has converted himself into a Muslim or whether the marriage was performed under the Special Marriage Act. Merely by marrying a Muslim, a Hindu does not cease to be a Hindu. Even though he cannot conduct a valid marriage under the Hindu law with any woman other than a Hindu. However, in view of Sec.26, there is absolutely no disqualification for the second defendant claiming a share in his parents properties. This has been also held so in Ashok Naidu v. Raymond S.Mulu Ashok Naidu v. Raymond S.Mulu Ashok Naidu v. Raymond S.Mulu , A.I.R. 1976 Cal. 272, wherein it is observed as follows: “Sec.26 does not disqualify a convert. It only disqualify a convert. It only disqualifies the descendants of the converts who are born to the convert after such conversion from inheriting the property of any of their Hindu relatives. Change of religion and loss of caste have long ceased to be grounds of forfeiture of property and the only disqualification to inheritance on the ground that a person has ceased to be a Hindu is confined to the heirs of such convert.” Strangely the written statement has been filed by the defendants 1 and 2 and such a claim in their statement only reveal the inconsistency in the stand taken by the defendants and certain objections are taken only for the sake of raising some objections and they have not raised the contention in serious manner. 8. Another objection has been taken by the defendants to the claim of partition made by the plaintiffs who are daughters of their late parents. 8. Another objection has been taken by the defendants to the claim of partition made by the plaintiffs who are daughters of their late parents. The defendants seem to contend that since ‘A’ schedule property is being used as residence by the defendants 1 and 2, the plaintiffs being married female members cannot seek partition and it cannot be done at the instance of married female heirs. This contention is also stated only to be rejected. First of all it is admitted by the defendants that ‘B’ schedule building was purchased by their late mother Andalammal and it is her individual property. There is no question of any joint family property or joint family living in their ancestral house. ‘B’ Schedule property is a separate acquisition made by Andalammal and it is her absolute property and after her death her children are entitled to equal shares irrespective of their sex. Moreover, applyication of Sec.23 of the Act will arise only in case of ancestral family residential house and not in respect of ‘B’ schedule property which is an acquisition made by the mother during her lifetime. Moreover, it is admitted by the defendants that portions of ‘B’ Schedule property have been let out to tenants. Therefore, once the defendants themselves have inducted strangers/tenants into their house, they cannot resist the claim of female members for partition and separate possession of their due shares. 9. Sec.23 of the Hindu Succession Act, so far as is relevant for our purpose, reads as follows: “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.” The object behind incorporating Sec.23 in the Succession Act is not far to seek. In enacting the section the Parliament must have thought that the dwelling house of a Hindu joint family should be regarded as an impartible asset as ordained by the ancient Hindu doctrines and precepts and as such should be allowed to be preserved by the family until the male heirs opted for dividing the same and to that extent the legislature intended to recognise and preserve the old tradition and sentiment of creation and protection of Hindu joint families. If a female member was given a share and was allowed to have such a house partitioned it was very likely that she would dispose of her share to some outsider and thereby would be a party to disintegration and fragmentation of the family dwelling house which the legislature did not want. At the same time the legislature must have thought that if the male members themselves decided to take their respective shares in the dwelling house then, and in that case, the female members should be entitled to claim partition because such disintegration and fragmentation were being brought about by the male members themselves. The principle will be equally applicable if the house is partly tenanted. By tenanting a portion of the house the members of the family part with the possession of the house to certain extent and thereby whole purpose of keeping the dwelling house as the exclusive domain of the male heirs is similarly lost. In any view of the matter therefore the restriction on the right of female heirs to claim partition in respect of the entire dwelling house of her predecessor-in-interest will not operate when it is partly occupied by the members of the family. These principles have been laid down by a Division Bench of Calcutta High Court in Usha Majumdar and others v. Smriti Basu Usha Majumdar and others v. Smriti Basu Usha Majumdar and others v. Smriti Basu , A.I.R. 1988 Cal. 115. So the contention made by the defendants with regard to prohibition seeking partition by female members is without any basis, when they themselves admit that portions ‘B’ schedule property has been tenanted in favour of third party strangers. 10. Both the parties have argued the matter and only these points have been raised and they have conceded that the dispute does not require letting in any evidence, oral or documentary. 10. Both the parties have argued the matter and only these points have been raised and they have conceded that the dispute does not require letting in any evidence, oral or documentary. The purchase made by the father and mother respectively of ‘A’ and ‘B’ schedule properties is not disputed, but for the above said disqualifications, it is conceded that the plaintiffs are entitled to equal shares along with the defendants. The disqualification set up by the defendants is not a disqualification in the eyes of law. Therefore, the defendants cannot resist the claim of the plaintiffs to their 2/5th share in the suit properties. Therefore, this issue is answered in favour of the plaintiffs. 11. Issue No.2: The plaintiffs have naturally raised the question of mesne profits inasmuch as they are denied their share in the rental income derived form ‘A’ and ‘B’ schedule properties which admittedly is being collected and enjoyed by the defendants 1 and 2. The mesne profits is claimed from the date of the mothers death, i.e., 20.6.1997. It is admitted by the defendants that they are collecting rents from the defendants who are in occupation of various portions of ‘A’ and ‘B’ schedule buildings. While the plaintiffs would claim that total monthly rental collection made by the defendants is Rs.20,000 the defendants would claim that it is only Rs.7,750. The defendants would claim that the rental income is being spent by them for maintenance of the buildings and payment of property tax and other statutory charges. It is true that the defendants might be spending some among for maintenance and payment of tax but it cannot be true that the entire rental income is being spent by them. They admit that so far no share has been given to the plaintiffs from out of the rental income. The exact rental income derived by the defendants from the suit properties to which the plaintiffs right to a share is adjudicated in their favour shall be decided in the final decree proceedings and the plaintiffs can be awarded their proportionate share form the rental income. Therefore, this issue is relegated to final decree proceedings. 12. In the result, the plaintiffs are given a preliminary decree for partition and separate possession of their 2/5th share and there shall be no order as to costs.