The then learned Judge admitted this second appeal in view of substantial questions of law raised in ground Nos.9(a) and (b) of the memorandum. Those substantial questions of law are as follows:

(a) whether on the facts and in the circumstances of the case, the appellant has a right to claim partition of B schedule items in view of the facts that a division could be inferred between the male members-defendants 1 and 2 by reasons of the facts (a) that they were living in separate door numbers, (b) that they were enrolled as votors in two different door numbers and (c) that they have separate ration cards and such admitted facts are inconsistent with their non-division of B schedule properties.

(b) Whether in any view of the matter, the plaintiff is entitled to claim partition of items 2 and 3 of B schedule which cannot be considered as a dwelling house wholly occupied by members of the family within the meaning of that term under Section 23 of the Hindu Succession Act as item 2 is a cattle shed and item No.3 is a vacant site purchased by plaintiff father and not build upon.

The appellant’s counsel filed a memo taking an additional ground in the second appeal as follows:

“Whether, on the facts and in the circumstances of the case, in view of Amendment Act 39 of 2005 to Section 6 of the Hindu Succession Act, 1956, and deletion of Section 23 which came into force with effect from 09.09.2005 the appellant is also entitled to a share along with her brothers in respect of B schedule properties”.

1. This additional ground of substantial question of law arose in view of the 2005 Act. Effect of this additional substantial question of law has to be considered herein and decided.

2. The plaintiff/appellant and the 3rd defendant/3rd respondent are sisters and the defendants 1 and 2/respondents 1 and 2 are their brothers, all of them being children of late Oblineni Dorayya and Veeramma. The plaintiff filed the suit in the trial Court for partition of the plaint ‘A’ schedule properties into 4 equal shares and the plaint ‘B’ schedule properties into 12 equal shares and for allotment of one such share each to her, for possession of the same and for profits, both past as well as future. It is her case that during the life time of Dorayya, there was partition of landed properties among Dorayya and the defendants 1 and 2 and the plaint ‘A’ schedule properties fell to the share of Dorayya. The plaint ‘B’ schedule consists of vacant sites. Dorayya died in December, 1970. It is the plaintiff’s case that Dorayya left his last Will and testament dated 02.11.1966 bequeathing life estate to his wife Veeramma and vested remainder to the plaintiff. Veeramma died intestate in July, 1972. Since mother died intestate possessed of the plaint ‘A’ schedule land, all the parties are entitled to 1/4th share each therein.

3. The 3rd defendant remained ex parte. It is contention of the defendants 1 and 2 that there was no partition among Dorayya and the defendants 1 and 2 and that Will dated 02.11.1966 is forged and that after death of their father, the defendants 1 and 2 partitioned their family properties in the year 1971 and that house portion and ‘B’ schedule properties combined together forms part of dwelling house of the defendants 1 and 2 and therefore are not liable for partition at the instance of the plaintiff.

4. After trial, the trial Court granted preliminary decree for partition of ‘A’ schedule properties as prayed for; and denied partition of plaint ‘B’ schedule property. On appeal by the plaintiff, the lower appellate Court dismissed the appeal holding that the plaintiff is not entitled to any share in the plaint ‘B’ schedule property since the defendants 1 and 2 are living jointly in the said house and therefore the suit becomes premature. Thereupon, the plaintiff filed this second appeal, which was admitted by this Court on the above substantial questions of law.

5. In this appeal, it is contended by the appellant’s counsel that admitted