S. N. Kapoor, J. ( 1 ) I have heard learned counsel for the parties on the following issue: "1. Whether, in view of the provision of Section 23 of the Hindu Succession Act, the present suit is maintainable?"there is no dispute in between the parties that the plaintiff is daughter of the deceased S. Dalip Singh, who was the undisputed owner of the property in question. . The plaintiff has got three brothers who are the defendants in this suit. Their mother has already expired. There is also no dispute about the fact that the entire house is not occupied by the members of the" family and there are number of tenants, including a bank. The plaintiff claims 1/4 share in the property. An objection has been taken by the defendants that the suit is barred by Section 23 of the Hindu Succession Act (hereinafter called the "act" for short ). Accordingly, on the basis of that objection the above-mentioned issue was framed. ( 2 ) IT would be appropriate here to reproduce Section 23 of the Act, which reads as under: 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. ( 3 ) LD. counsel for the defendants relies upon Nalla Venkateshwarlu vs. Porisepullamma and another, AIR 1994andhra Pradesh 87. In that case, the deceased left two sons along with a daughter. One of the defendants, brother, was proceeded exports. The Court refused to grant partition on the ground of bar under Section 23 of the Act and on the ground of non-joinder of necessary parties, including mother. The facts of the instant case are totally different. In that case, the deceased left two sons along with a daughter. One of the defendants, brother, was proceeded exports. The Court refused to grant partition on the ground of bar under Section 23 of the Act and on the ground of non-joinder of necessary parties, including mother. The facts of the instant case are totally different. In this case, mother has expired and the entire premises are not wholly occupied by the members of the family of the brothers (defendants) or sister (plaintiff) for, there are number of tenants. Therefore, this judgment is of little help to the defendants. ( 4 ) ON the other hand, learned counsel for the plaintiff puts reliance on Smt. Usha Majumdar and Others Vs. Smt. Smriti Basu, AIR 1988 Calcutta 115. In that case, the Calcutta High Court took the following view in para 5: "5. The natural and plain meaning of the word "wholly" is entirely, completely, fully, totally and in every respect. On plain meaning of the word wholly therefore there is no escape from the conclusion that to put a fetter to the right of a female heir to claim partition under S. 23 of the Succession Act, the, dwellimg-house must be entirely, completely, totally and fully occupied by the members of the family". ( 5 ) THE above observation make it amply clear that in case the property is not wholly, a dwelling house occupied by members of the family of the brother or sister or member of the family, fetter or bar under Section 23 of the Act would not apply. ( 6 ) IN this regard, following further observations of the Calcutta High Court in para 7 are also noteworthy: "7. the object behind incorporating Section 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. It a female member was, given a share and was allowed t0 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 divide their respective shares in the dwelling house then and in that case, the female member should be entitled to claim partition because such disintegration and fragmentation were being brought acout or one mare 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 the 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. " ( 7 ) THE Calcutta High Court in that case ultimately upheld the order the learned trial court holding that the house in question was partible and the plaintiff was entitled to partition in respect of her 1/5 share therein. ( 8 ) AGAIN in Gita Banerjeevs. Probhat Kumar Dutta, AIR 1989 Cal 167 (Cat.), Similary view was taken by holding that if a considerable portion of a house had been let out, a female heir is not disabled from claiming partition, for word "wholly occupied" in Section 23 means whole of the dwelling house or entity of it is occupied by members of the family. ( 9 ) IN Mahanti Matyalu Vs. Oluru Appanama and Others, AIR 1993 Orissa 36, Full Bench of Orissa High Court has gone a step further. It has been held that where there is a single male heir, there is no possibility for a male heir claiming any partition against another for there is none and thus in such a case the female heirs are entitled to claim partition and such a right is not denied by S. 23 of the Act. It has been held that where there is a single male heir, there is no possibility for a male heir claiming any partition against another for there is none and thus in such a case the female heirs are entitled to claim partition and such a right is not denied by S. 23 of the Act. ( 10 ) IN that case in para 2, the Full Bench of the Orissa High Court further observed as under: "this section restricts the right of a female heir to claim partition of a dwelling house, which is wholly occupied by the members of the family of the intestate, until the male heirs who sumultaneously inherit with the female heirs in Class I of the Schedule, choose to divide their respective share in the dwelling house. " ( 11 ) THE Full Bench further observed in para 3 as under: "the Legislature by using the expression "male heirs" which is in plural and again using the expression "their respective shares" have rather expressed their intention not to apply the restriction in the case of single male heir inheriting along with one or more female heirs. " ( 12 ) THE object behind incorporating Section 23 in the Act is that the dwelling house of 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. The Legislature intended to recognise and preserve those old Hindu tradition based on sentiments of creation and protection of joint Hindu families. But at the same time it does not restrict nor in any way affects the devolution or acquisition of the property by inheritance by a female heir. It does not intend to completely deny the share of a female heir in every circumstance for (a) in the event the male heir demands partition from the female heir or heirs, the question of claiming partition by female heirs would not arise as the female heir would be entitled to share on partition at the instance of the male heir; (b) female heir can claim partition if the dwelling house is not wholly occupied by the members of the family alone or it is occupied by tenants, strangers and may be in case of trespassers also. For application of restriction provided under Section 23 of the Act, it is necessary that (a) the partition of dwelling house must be sought; (b) partition is not sought by any of the male heirs; and (c) the dwelling house is wholly occupied by the members of the family. If the sole male heir or male heirs sell or in any manner alienate with any part of the dwelling house to strangers or induct tenants and probably in case of trespass also the basic philosophy of incorporating Section 23 of the Act about desirability to protect and preserve impartibility of a dwelling house becomes a mirage and disintegration of the joint Hindu family is certain for the male heir fails to preserve the impartibility of a dwelling house. If the above-said conditions are not satisfied, female heir cannot be blamed for claiming partition and Section 23 of the Act would not be attracted to debar a female heir from seeking partition of a dwelling house. ( 13 ) SINCE admittedly there are numerous tenants in the property in suit, I do not find any force in the objection taken by the brothers/defendants and reject the same. This issue is decided accordingly in favour of the plaintiff and against the defendant. ( 14 ) PARTIES are directed to file documents, if not already filed, for admission and denial within four weeks. ( 15 ) LIST the matter before the Joint Registrar for admission and denial of the documents on 12th November, 1999. Ld. counsel for the parties shall ensure presence of the parties to admit/deny the documents. List the matter in Court for framing of additional issues, in case any issue arises in view of the admitted fact that there are only three brothers and one sister, on 18th January, 2000.