K. MADHAVA REDDY, J.

( 1 ) THIS Second Appeal is directed against the Judgment and Decree in a. S. No. 55 of 1976 on the file of the District Judge, Mahaboobnagar. The 1st defendant in O. S. No. 18 of 1974 is the appellant herein.

( 2 ) ONE Ramachandra Reddy had three sons, Rami Reddy father of the Plaintiff, 1st defendant and 2nd defendant, Pandu Ranga Reddy and Narayana Reddy. Narayana Reddy died without any issue. There was a partition of the properties between Rami Reddy and Panduranga reddy. The plaintiff is the daughter and the 1st defendant is the son of Rami Reddy by his second wife and the 2nd defendant is the daughter by his first wife. Rami Reddy died in the year 1964. The plaintiff has laid the suit for partition and separate possession of the properties of Rami Reddy inter alia pleading that these were the properties owned by Rami Reddy. The plaint a Schedule comprises of agricultural lands and plaint b Schedule comprises of dwelling bouse and motor pump sets.

( 3 ) THE 2nd defendant chose to remain exparte. Only the 1st defendant ie. the brother of the plaintiff contested the suit. While admitting the relationship of the parties he pleaded that he and his father own plaint schedule properties jointly as co-parceners and that these lands and houses are ancestral properties. He however contended that the moveable properties shown in Plaint b Schedule exclusively belong to himself. He further pleaded that soon after the death of his father, the plaintiff and the 2nd defendant orally relinquished their right, title and interest in the plaint a and b Schedule properties before the elders, relatives and well wishers of the family at Srirangapur Village and ever since the death of his father he has been in possession and enjoyment of the plaint schedule properties exclusively. Alternatively he pleaded that as the properties are ancestral and joint family properties, the plaintiff would be entitled only a l/6th share and not 1/3 share as pleaded by her. With reference to lands bearing S. Nos. 163 and 164 it was pleaded that they were the properties purchased by the 3rd defendant from Rami Reddy and that even during the lifet-ime of ram Reddy, the 3rd defendant was and still continues to be in possession of the said properties in his own right. In view of the above facts he denied that the plaintiff was entitled to any mesne profits. With respect to the dwelling house he pleaded that she was not entitled to sue for partition of the dwelling house. In the result he prayed for the dismissal of the suit.

( 4 ) IN the rejoinder filed by the Plaintiff it is asserted that the plaint schedule properties were acquired by the father of the plaintiff alone along with his brother and that they partitioned the properties and that Kami reddy and bis brother partitioned the properties among themselves. She denied that the 1st defendant joined them in acquiring the lands and asserted that "the suit property is not ancestral or joint property, and that the father of the plaintiff was the sole owner of the properties and was in exclusive possession during his life time". The plaintiff also claimed mesne profits.

( 5 ) THE trial court as well as the appellate Court held that the plaint schedule properties are self acquired properties of Rami Reddy and the plaintiff was entitled to a 1/3rd share therein. With respect to the two s. Nos. 163 and 164 purchased by the 3rd defendant from Rami Reddy, the trial court upheld the plea of the 3rd defendant and dismissed the suit as also her claim for mesne profits. The trial court rejected the 1st defendant s plea that the plaintiff had relinquished her share in the plaint schedule properties in the presence of elders. In view of these findings on the main issues, the plaintiff s suit was decreed by the trial court with respect to the entile plaint schedule properties and dismissed with respect to two survey Numbers referred to above. The plaintiff preferred an appeal A. S. No. 54 of 1976 in so far as the suit was dismissed and the 1st defendant preferred an appeal A. S. No. 55 of 1976 and both the appeals were disposed of by a common judgment which is now under appeal. By this Judgment the learned District Judge held that the plaint schedule properties were not ancestral properties but properties acquired by Ramt Reddy and his brother Panduranga Reddy and were allotted to Rami Reddy on partition between them in which the 1st defendant did not acquire any right by birth. He therefore, declared the plaintiff s claim for a 1/3rd share therein. The finding that S. Nos. 163 and 164 were alienated by Rami Reddy even during his life time in favour of the 3rd defendant was however upheld as also the finding that the plaintiff was entitled to a share in the dwelling house as well. The Plaintiff s claim for mesne profits was negatived. In the result both the appeals were dismissed.

( 6 ) THE Plaintiff has not chosen to prefer any Second Appeal. Only the 1st defendant has challenged the Judgment and decree of both the Courts below in so far as the suit was decreed. In view of the concurrent findings of the courts below and in view of the material on record the claim of the 1st defendant that the plaint schedule properties were ancestral properties of Rami Reddy cannot be upheld. There is no evidence on record to show that these properties ever stood in the name of Ramachandra Reddy, father of Rami Reddy. On the other hand the evidence is that these properties were previously in the name of Panduranga Reddy, brother of Rami Reddy and on partition the plaint schedule properties were allotted to Rami Reddy. The properties were thus acquired by the Joint efforts of Rami Reddy and ramachandra Reddy who constituted members of a joint family. The finding of both the courts below is that the plaint schedule properties are not ancestral properties. In view of the declaration filed by the 1st defendant under the Andhra Pradesh Land Reforms (Ceiling on Agricultural holdings) Act, 1973 marked as Ex. A-6 in which the 1st defendant claimed 1/3rd share in the plaint schedule properties it was held that the suit properties were the self acquired properties of Rami Reddy and on that basis a 1/3rd share was decreed to the plaintiff. It is well settled that if two brothers constituting a Hindu Joint Family acquire properties by their joint efforts and it is not shown that they intended to treat this property as their joint property or self acquired property it would be treated as joint family property and the sons of each of the brothers would acquire a right therein by birth.

( 7 ) IN Mayne s Hindu Law, eleventh edition it was stated in paragraph thus:"if a single individual acquired a fortune by his own exertions, without any assistance from ancestral property, his male issue would certainly take no interest in it If several brothers did the same, the property would in the absence of any indication of an intention to the contrary, be owned by them as joint family property, and in that case their male issue would necessarily acquire a right in it by birth : for, under the Mitakshara system there can be no joint family property in respect of which the male issue of the joint owners do not take a share by birth. If there is satisfactory evidence of an intention to treat the property not as joint famliy property, but as joint property only, i. e. as the joint self-acquisition of the acquirers, it will be given effect to. But the presumption is in favour of its being regarded as joint family property". and In Mulla s Hindu Law, Fourteenth edition, para 228 at page 279 posing the question "in the absence of any proof of partnership, property jointly acquired by the members of a joint family without the aid of joint family property is, as stated above, to be presumed to be joint. But is it also to be presumed to be joint family property? It is stated that though the High court of Bombay had held in Chaturbhooj vs. Dharamsi that this property was not joint family properly. , "in later cases, it has been held that such property must be presumed to be joint family property". This has been followed in Sanwal das vs. Kute Mal Sital Prasad vs. Ram Prasad and Lachmi Narain vs. Musaddi Lal. In Sudarsanam vs. Narasimhulu it has been held that the property so acquired must be presumed to be joint family unless the acquirer intended to hold the property as co-owners between themselves in which case it would be their joint property.

( 8 ) A Bench of the Madras High Court in Krishnan vs. Sangachari held:"if members of a joint family who are joint in status and carry on business and acquire property by their joint labour and exertions without the aid of any ancestral nucleus the presumption is that the property so acquired by them would be joint family property in which the sons of the acquirers would get a right by birth, unless it is proved that the acquirers intended to own the property as co-owners between themselves in which case alone it will be joint property as distinguished from Joint family property. The presumption is in favour of its being regarded as joint family property". That being the correct legal position can it be said in the present circumstances that the property now found to have been acquired by Rami Reddy and his brother Pandu Ranga Reddy and allotted on partition to Rami reddy, was not the joint family property of the brothers but the property of Rami Reddy in which the 1st defendant did not acquire any interest by birth and was not his joint family property as well. Both the Courts below were largely influenced by the fact that in Ex, A-6 declaration filed under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 the 1st defendant had stated that he had 1/3rd share. A perusal of that declaration would not show any admission on the part of the 1st defendant that he owned only 1/3rd share. In fact he declared all the properties that fell to the share of Rami Reddy and stated that in view of the suit filed by the plaintiff and decree of the trial Court he has declared to be entitled to 1/3rd share. He also stated that as against the said decree he had preferred an appeal. He never reconciled himself to the position that he owned only 1/3rd share therein. He only made a statement of fact with regard to the litigation pending about the lands declared by him; it was not an admission on his part that he had only a 1/3rd share. On the contrary in this very suit the 1st defendant has specifically averred that these properties are ancestral properties and that he as a co-parcener had a share therein. Though he failed to establish that the properties were ancestral, that did not preclude him from still contending that eventhough they are not ancestral he had a share therein by birth as a co-parcener. So the further question to be considered by both the Courts below before granting or refusing the relief was to determine whether it is joint family property or not of Rami reddy and his son the 1st defendant. The Courts below having found that the properties were acquired by Rami Reddy and his brother Panduranga reddy and the plaint schedule properties were allotted to Rami Reddy by way of partition between them it was incumbent upon the Courts below, to have closely examined the pleadings of the parties as to what their pleas were with respect to the nature of these properties. So far as the plaintiff is concerned she did not specifically state in her plaint as to how she claims that these properties were exclusively owned by Rami Reddy. In the written statement the 1st defendant pleaded not only that the suit properties were ancestral but that he was a co-percener along with his father, and accordingly he was in joint possession of the plaint schedule properties along with his father. Thus he claimed that these are joint family properties in which he had a right by birth. In answer to these specific averments in the written statement the plantiff filed a rejoinder in which, while she specifically pleaded that the plaint schedule properties are "not ancestral" she asserted that they are also "not joint property". If the properties are not ancestral or joint properties but were properties acquired by two brothers who were members of a joint family, in view of the catena of authority referred to above, that property would be presumed to be joint family property unless it is proved to be joint property by the persons setting up that it is joint property and not joint family property. The presumption of such property b ing joint family property, it was incumbent upon the plaintiff to have let in evidence to establish that it was joint properiy and not joint family property. No effort has been made on her behalf. The presumption must therefore prevail. As such the plant schedule property must be regarded as joint family property. If that be so admittedly the plantiff who is the daughter of Rami Reddy would be entitled to a 1/6th share and not 1/3rd share as claimed by her. The finding of both the courts below in this behalf is therefore set aside and if is held that the plaintiff is entitled to a 1/6th share and not 1/3rd share in the plaint schedule properties excluding S. Nos. 163 and 164 in respect of which the appellate Court s decree has become final.

( 9 ) THE next contention of the learned counsel for the 1st defendant appellant is that the plaintiff is not entitled to claim partition of the dwelling house which is item No. 1 of the plaint b Schedule, This contention is based on Sec. 23 of the HINDU SUCCESSION ACT, 1956. It is contended that al hough the plaintiff is entitled to a share in the dwelling house as well, she cannot enforce her right by filing a suit for partition in respect of that item. Having regard to Sec. 23 of the HINDU SUCCESSION ACT, 1956 both the Courts have rejected the contention of the 1st defendant. In order to appreciate the rival contentions it is necessary to read Sec. 23 of the HINDU SUCCESSION ACT, 1956 which is as follows:"special provision respecting dwelling houses: Where a hindu intestate has left surviving him or her both male and female heirs specified in Class-1 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 heirs to claim partition of the dwelling house shall not arise until the male heirs chose too 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". There is no pronouncement of ihis Court on this question. The Calcutta high in Arun Kumar vs. Jnanendra has taken the view canvassed by Mr. C. R. Pratap Reddy, learned counsel for the appellant while Orissa High Court in Hemalata vs. Umasankari supports the proposition put forward by Mr. K. Mahipathy Rao, learned counsel for the plaintiff 1st respondent. The question whether a female heir of a Hindu dying intestate could enforce her right of partition of her share of dwelling house has to be decided primarily recognising the basic fact that a female heir of a Hindu is given a right to a share in all the properties of her father, be it moveable properties of immovable properties agricultural land or a dwelling house. When a person; has a right to a share in a property, on principle it must follow that person has a right to claim partition of his share of the property. That the female heir has a right to partition and separate possession of her share of the properties to which she had succeeded is recognised under the Hindu Succession act. However certain restrictions are placed on the right of female heirs with respect to a dwelling house having regard to the Special nature of the property. The heirs of male Hindu may be either female heirs or male heirs of persons. A female Hindu would, on marriage, live along with her husband in her husband s house and is not normally expected to dwell in the house of her parents. A partition of a dwelling-house into|several shares including the share of the female may at times lead to inconvenience to all the share holders. Having regard to all these factors with respect to the partition of a dwelling house, the legislature has in its wisdom thought it is necessary to put certain restrictions on the right of the female heir entitled to a share even in the dwelling house in seeking partition of dwelling house. That restriction is enacted in Sec. 23 of the Hindu Succession Act. Tt is a well recognised rule of interpretation that since this constitutes a restriction on a right conferred by statute, the scope of the restriction thus imposed must be strictly construed and not enlarged. Jf we examine Section 23 of the hindu SUCCESSION ACT, 1956 closely it would be clear that, that applies to a situation where a Hindu intestate has left surviving him or her both male and female heirs specified in clause 1 of the Schedule. The primary requisite for the application of Section 23 is the Hindu intestate must have left surviving him both male heirs and female heirs. In other words if a Hindu intestate is survived by only female heirs then this Section has no application, Likewise if the survivors of the Hindu intestate are only male heirs this provision would not apply. A closer reading of that section further makes it manifest that again the male and female heirs must have been more than one. If there is only one male heir and one or more female heirs the provision would not apply. Further even if this contention viz, that the Hindu intestate has left surviving him both male and female heirs the right of any such female heir to claim partition of the dwelling house is taken away only until the "male heirs" chose to divide their respective shares. The expression "until the male heirs chose to divide their respective shares" also gives an indication that only in case where there is more than one male heir the right of a female heir to claim partition of dwelling bouse cannot be enforced. In other words, if there is only one male heir, th2 prohibition against a female heir claiming a partition of the dwelling house does not come into operation. Reliance for the contention that male heirs which is a plural occurring at Sec. 23 of the Act having regard to Sec. 13 (2) of the general Clauses Act must include a singular as well and therefore the prohibition would operate even if a single male heir was the survivor of a Hindu intestate and not necessarily where more than two male heirs are the survivors based on the Judgment in Arun - Kumar vs. Jnanendra Sec. 13 (2) of the General Clauses Act can apply only having regard to the subject or context. In my view the context in which the words male heirs occur in Section 23 of the HINDU SUCCESSION ACT, 1956 exclude the possibility of reading them as including the singular as well for, the expression until the male heirs choose to divide is followed by the words" their respective shares therein" which must necessarily refer to the share of more than one male heir. Even in the Judgment relied upon by the learned counsel for the appellant Mr. C. R. Pratap Reddy that position is recognised in the following words:"section 13 (2) inter alia provides that unless there is anything repugnant in the subject or context words in the singular shall include the plural, and vice versa. Prima facie it does not appear that there is anything repugnant in the subject or context to the applicability of Section 13 (2 ). But a further difficulty has been created by the word respective which apparently stands in the way of the applicability of S13 (2 ). Even if the words male heirs also include the singular, that is male heir no effect can be given to it in the presence of the word respective . It is beyond the purview of the Court to omit the said word from the section for the purpose of giving effect to the provisions of Section 13 (2)". Thus there is no scope for reading the expression "male heirs" occurring in Sec. 23 of the HINDU SUCCESSION ACT, 1956 as singular by applying Section 13 (2) of the General Clauses Act. Even so the learned Judges of the Calcutta high Court proceeded to hold thus:"if Section 13 (2) could be applied there would not have been any difficulty. But as it is in-applicable it is necessary to ascertain the intention of the legislature. It is clear from the section that the legislature does not approve of division of a dwelling house at the instance of a female heir against the will of the male heirs. This restriction which has been imposed by section 23 prevents fragmentation or disintegration of a family dwelling house at the instance of the female heirs to the hardship and difficulties to which the male heirs may be put. A Hindu may die leaving a son and a number of daughters. If at the instance of any such daughters the dwelling house is allowed to be partitioned against the wish of the son, he may be put to greater hardship. The house may not be capable of partition and in that case it will have to be sold. If, in such a case, it is held that section 23 is in-applicable because of the absence of male heirs as contended on behalf of the appellant, in our view, it will defeat and frustrate the very purpose for which the Section has been enacted. In the first instance, the Section imposes a bar when it provides "the right of any such female heir to claim partition of the dwelling house shall not arise" but the bar is removed only on the happening of the contingency, namely, when the male heirs choose to divide their respective shares therein. It may be that there is one male heir and one female heir and there may not be any chance of that contingency to happen, but that will be no ground to say that the Section is inapplicable The rule which has been laid down by Sec. 23 clearly indicates the intention of the legislature that female heirs should not be allowed to divide the dwelling-house, against the will of the male heirs and, on a proper construction of the Section, we are of the view that it is also the intention of the legislature when there is only one male heir. If the male heir chooses to divide the dwelling-house, undoubtedly the female heir or heirs will be entitled to claim partition, but so long as no such choice is actually exercised the female heirs are debarred from claiming partition".

( 10 ) THE Orissa High Court in Hemalatha vs. Umasankari referred to above on the other hand has held thus;"a bare perusal of the Section indicates that a female heir is not entitled to enforce her right of partition unless the male heirs exercise their right. If the male heirs ask for partition, the female heir can claim her legitimate share so far as the dwelling house is concerned. In this case the only male heir of Hadibandhu is dinabandhu. There are no plurality of male heirs. Consequently the question of any other male heir claiming a partition with Dinabandhu does not arise. Where there is a single male heir the right to claim partition of the dwelling house by a female heir is not excluded. The expression "the male heirs" towards the last part of the main Section furnishes the clue to the meaing of the Section. If there are more than one male heir then there is a possibility of any one of such heirs asking fora partition of the dwelling house and the female heir in such a case can claim partition. But where there is a single male heir, there is no possibility of that male heir claiming any partition against another male heir. We are therefore clearly of opinion that where there is a single male heir and others are female heirs then those female heirs are entitled to claim partition". It must be remembered that the right to a share even in the dwelling house has been recognised in favour of a female heir. Sec. 23 of the HINDU SUCCESSION ACT, 1956 seeks to put a restriction on the female heirs claim to partition of her share in the dwelling house. It is not the intention of the legislature to wholly deny her the right to a partition and separate possession of her share. In fact even as stated by their Lordships of the Calcutta High Court the partition of her share in the dwelling house can be effected if the male heirs choose to divide their respective shares. Hence it cannot be assumed that section 23 of the HINDU SUCCESSION ACT, 1956 is intended to prevent fragmentation or disintegration of a family dwelling house. When the right of a famale heir itself is recognised and only a restriction is sought to be imposed on that right the Court cannot on any considerations of hardship to one of the heirs, be that a female heir or male heir, impose a larger restriction than what is envisaged by the wording of the Section itself. When the opening words of the Section itself make that provision applicable only to a case where the Hindu intestate has left surviving him or her both male and female heirs the Section cannot obviously apply to a case where there is only one male heir and the others are female heirs. Further the Legislature in laying down that the right of a female heir to claim partition of a dwelling house shall not arise until male heirs choose to divide their respective shares, is merely giving effect to the earlier part of the Section which envisages that there are more male heirs than one of a Hindu dying intestate. Unless there are more male heirs than one, the question of male heirs choosing to divide their respective shares therein would not arise. Section 23 of the Hindu Succession act is not an extinguishment of right to claim partition but only postponement of the right to enforce partition of a share in the dwelling house in certain contingencies and would apply only to certain situations. If that situation does not exist, Section 23 of the HINDU SUCCESSION ACT, 1956 has no application and the situation envisaged by it is one where there is more than one male heir of a Hindu intestate. Only if that situation exists the contingency envisaged in the later part of the section may or may not occur. If it occurs the right of the female heir to claim partition of her share would arise. Otherwise not. Having regard to the fact that there is only one male heir when such contingency cannot arise, the questinn of postponement of her right to a separate share in the dwelling house by way of partition cannot pe envisaged. I am therefore clearly of the view that where there is only one male heir of a Hindu intestate the right of the female heir or heirs to claim a partition of their share of the dwelling house is not taken away or postponed till the male heir chooses to file a suit for partition. In this view of the matter the 1st defendant s claim that the plaintiff was not entitled to claim a partition and separate possession of her 1/6th share of the dwelling house cannot be upheld, However, it is hereby clarified that even in the dwelling house she has only a 1/6th share just as has a 1/6th share in all the other properties found to be joint family properties.

( 11 ) IN the result the appeal is allowed to the extent indicated above ie the plaintiff-1 st respondent is entitled to 1/6th share in all the plaint a and b schedule properties including the dwelling house and to a partition and separate possession thereof but excluding Survey numbers 163 and 164. The parties shall bear their costs of this Appeal. GVKR.----- S. A. Allowed.