JUDGMENT
Tarkeshwar Nath, J.
1. This appeal by the plaintiffs arises out of a suit for declaration of title and recovery of possession in respect of a house situate on survey plot Nos. 5034 and 5035, in village Berath. It is not necessary to give in detail the facts of this suit inasmuch as the point involved in this appeal is as to whether the appeal in the lower appellate Court had abated as a whole. The suit was dismissed on the 10th December, 1956, by the trial Court. Being aggrieved by that judgment and decree, the plaintiffs preferred an appeal on the 17th January, 1957. While that appeal was pending, Mahatam Singh, respondent No. 1 of that appeal, died on the 28th May, 1958. On the 14th February, 1959, the other respondents filed a petition pointing out that on account of the death of Mahatam Singh respondent No. 1, the entire appeal had abated, inasmuch as he left two heirs one of whom was a party to the appeal but the other one, namely, his daughter, Jhalku Kuer, was not a party to that appeal, and the appellants had not taken steps for bringing her on the record in place of her deceased father, Mahatam Singh. The plaintiff-appellants took up the position that Mahatam Singh had left no daughter and as such it was not necessary to make Jhalku Kuer party to that appeal. Evidence was gone into and on the 21st February, 1959, the lower appellate Court came to the conclusion that respondent No. 1 had left a daughter, Jbalku Kuer, who was not impleaded in the appeal after the death of Mahatam Singh. Later on, a question arose as to whether the appeal had abated only against Jhalku Kuer or against all the respondents and the learned Subordinate Judge held on the 27th February, 1959, that the entire appeal had abated, and in view of that finding, he dismissed the appeal as a whole. The plaintiffs have preferred this second appeal against the order dismissing the appeal.
2. There is no dispute about the fact that Mahatam Singh, respondent No. 1, died on the 28th May, 1958, and that he did leave behind him one son who was already a party to the appeal before the lower appellate Court, and a daughter Jhalku Kuer who was not impleaded in the lower appellate Court. Learned Counsel for the appellants submitted that it was not necessary to implead the said daughter after the death of her father inasmuch as, according to the provisions of Section 23 of the Hindu Succession Act, 1956, she had no interest in the house until the male heirs of Mahatam Singh chose to divide the respective shares owned by them. Section 23 runs 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 mem-bears 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 share 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.”
Learned counsel pointed out that Jhalku Kuer, the daughter of Mahatam Singh, was married and she was living with her husband and, as such, she had no right even of residence in the dwelling-house which was the subject matter of the present suit. He is, no doubt, correct in his submission according to the proviso of section 23, referred to above, but the question which arises for consideration is as to whether she had any interest in the dwelling-house until the male heirs chose to divide their respective shares. Learned counsel contended that until there was a partition at the instance of the male heirs, the said daughter had no interest. It is difficult to accept this contention. Section 23 provides that when the male heirs choose to divide their respective shares in a dwelling-house then the female heir as well will have a right to claim partition of that dwelling-house, but it does not contemplate that until partition the female heir will have no interest in the property. Unless a female heir has an interest in the property itself or title in respect of a dwelling-house, it is difficult to visualise as to how she will get all of a sudden a right to get the property divided when the male heirs choose to divide the property. A person has a right to get a property divided only on the footing that he or she has some interest or title in respect of that particular property. The position thus is that the female heir, after the death of a Hindu dying intestate, gets an interest ins the property if she comes in the category of heirs specified in class I of the Schedule of the Hindu Succession Act, but she cannot get a partition until the male heirs choose to divide their respective shares in a dwelling-house. Section 23 does not envisage that the daughter of a Hindu, here Mahatam Singh, had no right in the dwelling-house. In this view of the matter, she having got an interest in the property on the ground that she was one of the heirs specified in class I of the Schedule, it must be held that she was a necessary party to be substituted after the death of her father on the record of the appeal before the lower appellate Court. The plaintiff-appellants not having impleaded her within the time allowed, their appeal in the lower appellate Court abated against the heir of Mahatam Singh viz., the daughter, and the result of that abatement was that the entire appeal abated. In case the appeal of the plaintiff-appellants would have been allowed in the lower appellate Court in absence of the said daughter, the result would have been that there would have been two inconsistent decrees in the same suit. In these circumstances, the learned Subordinate Judge was perfectly right in coming to the conclusion that the entire appeal had abated. -This was the only point urged by the learned counsel for the appellants and 1 find no merit in it.
3. In the result, the appeal fails and is dismissed, but without costs.
Mahapatra, J.
4. I agree.