JUDGMENT 1. This appeal is filed by the defendant challenging the judgment and decree dated 30.11.2000 passed by the 9th Additional District Judge, Gwalior in Civil Suit No. 55-A of 1997 whereby the Court below has decreed the suit filed by the respondent plaintiff. 2. Respondent plaintiff has filed the present suit alleging that the house No. 38/1 795 situated in Vansal Wali Gali, Lashkar. Gwalior, was initially owned by one Bansi Kushwah. Bansi Kushwah died prior to 1956, i.e., before coming into force of Hindu Succession Act, 1956 and he was survived by his son Darua, Chote Singh son of Darua was also alive at the time of death of Bansi Kushwah. 3. As Bansi Kushwah died prior to coming into force of Hindu Succession Act, the property de-volved on his sons Darua and Chote Singh. Chote Singh being a coparcener, have birth right in the suit property and both of them have 1/2 share in the property. Chote Singh died after 1960. After his death Darua executed the sale deed in respect of whole house in favour of Jankibai who is defendant No.2, on 21.2.1997. 4. Darua died during the pendency of litigation. By the present suit the plaintiff has alleged that as Chote Singh had 1/2 share in the suit property being coparcener with Darua, Darua has no right to alienate his 1/2 share. The trial Court decreed the suit hence this appeal. 5. First contention raised by the counsel for the appellant is that Guddobai has no right to tile the present suit. According to him she has no share in the suit property during lifetime of Darua. For this purpose, counsel for the appellant has relied on judgment of the apex Court in the case of Commissioner of Wealth Tax, Kanpur etc. v. Chander Sen etc. [ AIR 1986 SC 1753 ]. in the case of Yudhishtir v. Ashok Kumar [ AIR 1987 SC 558 ] and in the case of Chandra Kanta v. Ashok Kumar [ 2002 (3) MPLJ 576 ]. In all these cases the Court has laid down that after coming· into force of Hindu Succession Act, the position is quite different and so long as the original owner is alive his heirs do not get any right to the suit property. 6. However, this situation is not in the present case. In the present case Bansi Kushwah died prior to 1956. 6. However, this situation is not in the present case. In the present case Bansi Kushwah died prior to 1956. On that date Chote Singh was alive hence Chote Singh became coparcener in the property along with Darua. Therefore, both of them had 1/2 share in the property. After the death of Chote Singh, Guddobai plaintiff being his only daughter, got 1/2 share in the property. Hence the Court below has rightly held that Guddobai has 1/2 share in the suit property. 7. Next question raised by the counsel for appellant is that Guddobai being female, she has no right to bring a suit under section 23 of Hindu Succession Act section 23 of the Act reads as under: "Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Scheduled and his or her property includes a dwelling house wholly occupied by members of his other 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." 8. Section 23 is special provision in respect of dwelling house which is occupied by members of the family. In the present case the house was sold by Darua on 21.2.1997. The present suit is filed on 21.7.1997, i.e., after the sale. Thus on the date of filing of suit, the said house cannot be said to dwelling house wholly in occupation of the members of the family and therefore, the Court below has rightly rejected objections raised by the defendant that the present suit is not maintainable. 9. Thus, I do not find any error in the impugned judgment. Guddobai has 1/2 share in the suit property left behind Bansi Kushwah and therefore the sale deed executed by the Darua in favour of Jankibai will not be binding to the extent of her 1/2 share. Thus, the appeal has no merits and is dismissed.