P. K. MISRA, J. ( 1 ) DEFENDANTS 1 to 4 and 6 have filed this appeal against a confirming decision. ( 2 ) PLAINTIFF-RESPONDENT No. 1 had filed the suit for declaration of title in respect of the disputed land and the house and for eviction of defendants from the disputed house. Admittedly, one Nitya Goud was the owner of the disputed property. Plaintiff is his son. Nitya goud had two daughters, Sandhya and Apura (defendant No. 5 ). Defendants 1 to 4 are the children of Sandhya and defendant No. 6 though she was not married to defendant No. 6. The plaintiff averred that his father, Nitya goud, had permitted his two daughters, sandhya and Apura to live in a portion of the disputed house as they had no other means to maintain themselves and stay in any other place. The plaintiff claims that the married daughters had no right of residence and, as such, they should be evicted from the disputed house. ( 3 ) DEFENDANT No. 5 did not contest the proceeding. However, defendant No. 6 as the guardian of minor defendants 1,3, and 4 filed written statement for himself and on behalf of defendants 1, 3 and 4. They pleaded that the plaintiff had been adopted by one Karunakar rout and as such had no right in the property. The other allegations in the plaint were generally denied. ( 4 ) THE trial Court found that the plaintiff was adopted by Karunakar Rout. However, by applying Section 12 of the Hindu Adoptions and Maintenance Act, the trial Court held that since the property had already vested in the plaintiff he shall not be divested after the adoption and accordingly decreed the suit and declared 1/2 interest of the plaintiff over the disputed property. It was further found that the other defendants had no right to stay in the disputed house and, accordingly, the trial Court directed that there should be a notional partition and the other defendants should be given money value of the property towards their share. The trial Court concluded that defendants 1 to 4 together and defendant No. 5 should be paid Rs. 833. 33 paise towards their respective shares and the plaintiff shall have the right to remain in the disputed house after payment of such money. The trial Court concluded that defendants 1 to 4 together and defendant No. 5 should be paid Rs. 833. 33 paise towards their respective shares and the plaintiff shall have the right to remain in the disputed house after payment of such money. ( 5 ) THE aforesaid decree was challenged by defendants 1 to 4 and 6. The appellate court reversed the finding that the plaintiff had been adopted. However, it 'upheld the direction of the trial Court regarding the payment of money to defendants 1 to 4 and 5 towards their share in the property. ( 6 ) AT the time of admission, the following substantial question of law had been indicated in the order sheet:. " 1. Whether the learned lower appellate Court erred in law in reversing the finding of adoption of the respondent to Karunakar by the trial Court in the light of oral and documentary evidence adduced by the parties and particularly when no cross-objection had been filed against the aforesaid finding of the trial Court; and2. Whether the findings of the learned lower Courts that the plaintiff respondent was entitled to recover the entire suit house after paying Rs. 833. 33 to the appellant-defendants are correct in law?" ( 7 ) SO far as the question of adoption is concerned, it being a finding of fact, is not available to be assailed in the present second appeal. The lower appellate Court has adverted to the relevant materials on record and has negatived the plea raised by the defendants regarding adoption of the plaintiff by karunakar. Even though, the learned counsel for the appellants has strenuously challenged the finding, nothing substantial has been pointed out to take a different view in the matter and, accordingly, the finding of the lower appellate Court that the plaintiff had not been adopted by Karunakar is confirmed. ( 8 ) BEFORE considering the second question as framed, it is necessary to notice a further contention raised by the counsel for the appellants. The said contention being a sub-stantial and pure question of law which had been indicated in the memorandum of appeal has been permitted to be raised and the counsels of both the parties have been heard. ( 9 ) THE question relates to the extent of share of the plaintiff and the defendants in the disputed property. The said contention being a sub-stantial and pure question of law which had been indicated in the memorandum of appeal has been permitted to be raised and the counsels of both the parties have been heard. ( 9 ) THE question relates to the extent of share of the plaintiff and the defendants in the disputed property. The plaintift had alleged in the plaint that the disputed property had been acquired by late Nitya Goud and had been re-corded in the name of Nitya Goud. It is not the case of the plaintiff that the property had been acquired by Nitya Goud from the income of the joint family nucleus nor it is claimed in the plaint that such property was joint family property of Nitya Goud and the plaintiff. In such view of the matter, the property being the separate property of Nitya Goud, on his death, his son and two daughters were to in herit l/3rd- interest each in the property. Therefore, the assumption of the Courts below that plaintiff had 1/2 share in the property and other half of the property was to be divided between the plaintiff and the defendants in the proportion of 1/3 each is incorrect and cannot be sustained in law. Therefore, the direction of the Courts below regarding the extent of share is required to be modified and it is, therefore, declared that the plaintiff had l/3rd share and similarly, Sandhya and Apura each had l/3rd share in the property. ( 10 ) NOW coming to the other substantial question of law, as framed at the time of admission, the plaintiff claims that Sandhya and apura being married daughters had no right to reside in the disputed house and they should have been evicted. It is not disputed that though sandhya was not, in fact, married she had begotten defendants 1 to 4 through defendant no. 6 by living with him. Since Sandhya was unmarried she had a right of residence in the disputed property. So far as Apura is concerned, though she was married it is admitted that she was living separately from her husband and had no other place to live. ( 11 ) AT this stage it is necessary to notice the provisions contained in Section 23 of the hindu Succession Act, 1956. So far as Apura is concerned, though she was married it is admitted that she was living separately from her husband and had no other place to live. ( 11 ) AT this stage it is necessary to notice the provisions contained in Section 23 of the hindu Succession Act, 1956. In view of the aforesaid provisions, an unmarried daughter cannot claim partition until the male heir chooses to partition the same. However, in view of the provision the female heir being a daughter has right of residence in the dwelling house under the circumstances envisaged in the Act. In the present case, Sandhya being unmarried and Apura having been deserted by her husband have a right of residence in the disputed dwelling house. In such view of the matter, the direction of the Courts below that the plaintiff was entitled to remain in exclusive possession after paying some amount towards shares of other defendants cannot be sustained. It is hereby declared that the daughters had a right of residence. It is admitted that Sandhya had died prior to the filing of the suit and her illegitimate sons were impleaded. In view of the provisions contained in Section 15 of the hindu Succession Act, the illegitimate children of Sandhya had right to succeed to her property and on her death they had succeeded to the disputed property. The embargo envisaged under Section 23 regarding impartibility of dwelling house at the instance of the female heir is inapplicable. In such view of the matter, defendants 1 to 4 can claim partition in future. ( 12 ) THE learned counsel appearing for the appellants submitted that in order to avoid any further litigation a preliminary decree for partition may be passed. Since the entire property is on record and all the necessary parties are on record, there is no difficulty in passing such a preliminary decree for partition, keeping in view the principles envisaged in Bui sahuani and Others v. Seshadeu Sahu and others. Mr. Ghose, learned counsel for the plaintiff respondent, however, submitted that the extent of disputed property being Ac. 0. 48 decimals, extent of property to be given to the plaintiff and other defendants would be very minimal and other defendants may be directed to sell their shares to the plaintiff. Mr. Ghose, learned counsel for the plaintiff respondent, however, submitted that the extent of disputed property being Ac. 0. 48 decimals, extent of property to be given to the plaintiff and other defendants would be very minimal and other defendants may be directed to sell their shares to the plaintiff. In the absence of any application under Sections 2 and 3 of the Partition Act, such a prayer cannot be acceded to at this stage. However, notwithstanding the preliminary decree for partition, it would be open to defendants 1 to 4 and 5 to sell their interest in the disputed property to the plaintiff by any amicable arrangement and the preliminary decree for partition shall not stand on the way. ( 13 ) SUBJECT to the aforesaid direction, the appeal is allowed in part. There will be no order as to costs. Appeal allowed.