The prospective nature of the Hindu Succession Central Amendment Act, 2005, and the significance of delay in seeking partition were central to the court's decision.

The plaintiff in OS.No.169/2010 filed for partition and for permanent injunction, lost before the Trial Court and in Appeal in AS.No.3/2012 filed before the Lower Appellate Court also, she had lost it and hence, this Second Appeal.

2. It is the case of the appellant / plaintiff that the suit properties admeasuring to an extent of 5.81 acres in Survey Nos.220/1 and 220/2, situate at Veppampalayam Village, Perundurai Taluk, Erode District, belong to the father of the plaintiff and the defendants, viz., one Kolandaiya Gounder and the appellant/plaintiff is the sister of the defendants. The said Kolandaiya Gounder died intestate and the plaintiff and the defendants as well as one more daughter, viz., Chellammal, had succeeded to the estate and the Chellammal died as a Spinster and as such, the plaintiff as well as the defendants are entitled to common 1/3rd share in the property and though the appellant/plaintiff has been repeatedly demanding the defendants to partition the property and give her separate possession; but they failed to do so and taking advantage of the fact that the appellant/plaintiff as a Woman, had also tried to alienate the property and therefore, came forward to file the suit for partition and separate possession as well as for permanent injunction.

3. The defendants filed written statement refuting the allegations made in the plaint and they took a stand that the properties are not originally belong to their father, viz., Kolandaiya Gounder, but the properties are ancestral in nature and Kolandaiya Gounder died during the year 1952 and being coparcener, as they had become the absolute owners of the said properties, are in possession and enjoyment of the same for more than 50 years openly and uninterruptedly as their own properties. Subsequently, the defendants had also entered into a registered Partition Deed dated 16.09.2004 [Ex.B2] and they are also paying statutory levies and the plaintiff had waived her right to the suit properties for very many years and on that ground also, she is not entitled to any relief and prayed for dismissal of the suit.

4. The Trial Court, on a consideration of the pleadings, had framed the following issues:-

[a] Whether the plaintiff is entitled for 1/3rd share in the suit property? ;

[b] Whether the plaintiff is entitled for prayer for permanent injunction as prayed for? ; and

[c] To what other relief, the plaintiff is entitled to?

5. During the course of trial, the plaintiff examined herself as P.W.1 and marked Exs.A1 to A4. On the side of the defendants, the 1st defendant examined himself as DW1 and marked Exs.B1 to B8.

6. The Trial Court, on a consideration of pleadings and on appreciation of oral and documentary evidences, has dismissed the suit vide judgment and decree dated 10.08.2011 and aggrieved by the same, the plaintiff filed an Appeal in AS.No.3/2012 on the file of the Court of Principal Sub Judge, Erode.

7. The Lower Appellate Court, on a consideration of materials placed before it, had formulated the following point for consideration:-

Whether the Lower Court is right in dismissing the suit?

8. The Lower Appellate Court has found that the plaintiff who examined herself as P.W.1, had admitted that the properties were enjoyed by her father as a joint family property and are also ancestral in nature and the appellant/plaintiff had also claimed her right under the Hindu Succession Central Amendment Act, 2005 and taking into consideration of the fact that she got married after the demise of her father and in the light of the fact that the Hindu Succession Central Amendment Act, 2005 is prospective in nature, the plaintiff, as a co-sharer, cannot take shelter under the said Amendment, as her father died about 30 years prior to the Amendment.

9. The Lower Appellate Court also found that though the plaintiff claim that she is in joint possession and enjoyment of the properties along with the defendants, the same is not substantiated by any material in the form of evidence