The questions of law involved in this Second Appeal are the following:

1) whether a suit for partition at the instance of a daughter of the deceased could be defeated by invoking Section 23 of the Hindu Succession Act by the legal representatives of a deceased son of the intestate?

2) Whether Section 23 would be applicable in a case where the deceased intestate had left behind him only one male issue and whether it is necessary that there must be more than one male issues to invoke Section 23?

3) Whether the protection in favour of the male heir under Section 23 of the Hindu Succession Act would be available if he inducts a third party in the dwelling house or any portion thereof?

4) Whether omission of Section 23 of the Hindu Succession Act by the Hindu Succession Amendment Act, 2005 would have any impact on a suit for partition or appeal therefrom pending on the date of the commencement of the Hindu Succession Amendment Act, 2005?

2. The property sought to be partitioned is having only an extent of three cents and it is a kudikidappu. It was owned by Ramayi who died on 12.9.1976. Ramayi left behind her four daughters including the plaintiff and a son, the defendant. After the death of Ramayi, plaintiff obtained purchase certificate from the land tribunal in her name, but on behalf of the other co-owners as well. The three sisters of the plaintiff released their fractional rights in the property to the plaintiff. Thus the plaintiff claimed 4/5 shares and contended that the defendant has only 1/5 share.

3. The defendant contended that Ramayi was not the kudikidappukari, but her husband was the kudikidappukaran and that the plaintiff and her sisters were married away before the commencement of the Hindu Succession Act, and, therefore, they are not entitled to any share in the property. The defendant contended that the building was constructed by him.

4. The plaintiff claimed that the old kudikidappu was demolished by her and a new house was constructed by her. The plaintiff also raised a contention that the defendant unauthorisedly allowed a stranger to occupy a portion of the house for conducting soda business.

5. Both the courts below found that the property belonged to Ramayi, the mother of the plaintiff and the defendant. It was also found by the lower Appellate Court, on facts, that the rival claim of the plaintiff and the defendant regarding construction for the house cannot be accepted. Therefore, it is to be taken that Ramayi was the kudikidappukari and on her death, the rights devolved on her children namely, the plaintiff the defendant and their three sisters.

6. Though the defendant did not put forward a specific contention in the written statement that the suit for partition is not maintainable in view of Section 23 of the Hindu Succession Act, both the courts below considered the same and arguments were advanced before this court also in respect of the same. Though strictly speaking the contention raised by the defendant is not liable to be considered as the defence under Section 23 is not supported by sufficient pleadings, I propose to deal with that contention on the merits rather than to reject the contention on the ground that there was no sufficient pleading.

7. The trial court held that the property shall be divided into five shares and that the plaintiff is entitled to get 1/5 share. The claim of the plaintiff on the basis of the release deed executed by the three sisters was negatived on the ground that the document was not proved. The trial court also held that in view of Section 23 of the Hindu Succession Act, the plaintiff cannot claim partition. On appeal by the plaintiff, the Appellate Court held that the plaintiff is entitled to 4/5 shares. The Appellate Court held that Section 23 does not apply since there is only one male heir and that a stranger was inducted by the defendant in a portion of the residential building.

8. I shall first deal with the question whether the intestate should be survived b