K. Vinod Chandran, J.

1. The defendant in a suit for partition is the appellant herein. The plaintiff, who is the defendant's niece born to his elder sister, is the respondent in the Second Appeal and cross-objector in C.O.No.33 of 2010. The plaintiff, claiming through her mother, sought for partition of the properties acquired from the great-grandfather of the defendant, more specifically one-half share. The Courts below, by concurring judgments, partitioned the properties and out of the 9 equal shares, the plaintiff's entitlement to 3/9 shares was declared and the remaining 6/9 share was set apart for the defendant.

2. When the Second Appeal was admitted, a learned Single Judge of this Court framed the following questions of law:

"i. When the plaintiff's mother Jayasree was admittedly not a party to Ext.A1 document dt.22.1.1956, was the lower appellate court justified in applying sec.6 of the Hindu Succession Act, 1956 in view of the fact that the said Act came into force only on 17.6.1956?

ii. Were the courts below justified in treating the plaint schedule property as the self-acquired property of Nayadi Vaidyar, the great grandfather of the plaintiff when, in the hands of his son Choyi and Choyi's son Vasu, the property was coparcenary property?"

3. By the Cross Objection, essentially the plaintiff seeks for one-half share as contended by her before the Courts below. The question of law arising therein would be:

iii. Whether the plaintiff, through her mother, is entitled to one-half share in the plaint schedule property by virtue of Section 6(1) of the Hindu Succession Act,1956 (hereinafter referred to as "Act 30 of 1956") as amended by the Hindu Succession (Amendment) Act, 2005 (hereinafter referred to as "Act 39/2005"); which enabled the daughter of a coparcener, by birth, to become a coparcener in her own right in the same manner as the son?

4. Admittedly the plaintiff's mother and the defendant were siblings, belonging to a family of Makkathaya Hindu Thiyyas of Calicut and governed by Hindu Mithakashara Law. The mother of the plaintiff being a female member, was not entitled to a share in the co-parcenary property of her great-grandfather, Nayadi Vaidyar. Nayadi Vaidyar had three children, Kelan, Choyi @ Kuttan and Raman. Of the three children, Choyi @ Kuttan died first and then Raman, who died a bachelor and issueless. Even during the life time of Raman; himself, Kelan and Vasu S/o.Choyi @ Kuttan had decided on a partition of Nayadi Vaidyar's property, orally, by setting apart one share to the branch of Kelan and another to the branch of Choyi @ Kuttan and Raman together. After Raman died, Kelan's children Sreenivasan and Balan representing that branch and Vasu and his children Rajan and Babu representing the deceased Choyi @ Kuttan's branch and also that of deceased Raman entered into a deed of partition dated 22.1.1956 by Exhibit A1. By the said partition deed, the 'A' schedule properties therein were set apart for Kelan's branch and Vasu, Rajan and Babu became entitled to share in 'B' schedule properties therein. Rajan and Babu (the defendant) were both minors and were represented by their father and natural guardian Vasu. The 'B' schedule in Exhibit A1 is the plaint 'A' schedule property herein. Subsequently Vasu died and then Rajan followed. Rajan also died a bachelor and issueless. Sreeja @ Jayasree, who was the sister of Rajan and Babu, married and the plaintiff was born in the wedlock. She too passed away in 1990. Hence, the surviving members in the family were Babu, the defendant and Arunapriya, his niece, the plaintiff.

5. The plaintiff having sought for partition personally and through lawyer's notice, filed the suit on her attempts becoming futile. The suit was filed in the year 2003 and the plaintiff, holding herself out to be the only other surviving member along with the defendant, claimed one-half of the plaint schedule properties. The defendant, however, contended that the plaintiff has absol