Daughters are equal co-parceners with sons by birth, and the right is conferred by birth and not by inheritance, as per the Hindu Succession Amendment Act, 39 of 2005.

JUDGMENT :

(Prayer: This Second Appeal has been filed under Section 100 of C.P.C., against the judgment and decree dated 03.09.2009 passed in A.S.No. 2 of 2009 on the file of the Sub Court, Bhavani by confirming the judgment and decree dated 29.12.2008 passed in O.S.No. 250 of 2007 on the file of the Principal District Munsif Court, Bhavani.)

This Second Appeal has been filed by the Appellant against the judgment and decree dated 03.09.2009 passed in A.S.No. 2 of 2009 on the file of the Sub Court, Bhavani by confirming the judgment and decree dated 29.12.2008 passed in O.S.No.250 of 2007 on the file of the Principal District Munsif Court, Bhavani.

2. Brief of the facts set out in the plaint are as follows:-

The Respondents/Defendants 1 & 2 are the sister and the brother of the Appellant/Plaintiff. The Appellant's father Rangagounder @ Rangasamy Gounder derived title to the suit properties by virtue of the partition deed dated 01.03.1967. According to the partition deed, the Appellant's father is the absolute owner of the suit properties. The Appellant's father Rangasamy Gounder died eight years ago. After the demise of the Appellant's father, the Appellant and the Respondents are the only legal heirs to the deceased Rangasamy Gounder. The suit properties are the joint family properties of the Appellant and the Respondents and the Appellant is also one of the coparceners by her birth. As per the Hindu Succession Amendment Act 39 of 2005, the Appellant is entitled to 1/3 share and the Respondents 1 and 2 are also entitled to 1/3 share each in the suit properties. The Appellant made repeated demands to the Respondents for partition, but the Respondents neglected the same. Thereafter, the Appellant issued a legal notice to the Respondents on 18.08.2006 to divide the suit properties into six equal shares and allot one share to the Appellant, one share to the 1st Respondent and 4/6 share to the 2nd Respondent. However the Appellant is entitled to one share out of three shares under the Hindu Succession Amendment Act 39 of 2005. On 18.08.2006, the Respondents attempted to alienate the suit properties to a third party. The earlier suit filed by the Appellant for partition in O.S.No.351 of 2006 was withdrawn with a liberty to file a fresh suit on the same cause of action and now this suit for partition is filed for praying partition and separate possession of 1/3 share in the suit property and Permanent Injunction.

3. The written statement of the second defendant in brief:-

It is true that the suit properties are the ancestral properties. The Plaintiff and the First Defendant got married several years ago and hence they are not coparceners. The amended Hindu Succession (Amendment) Act, does not apply to them. The amended provision will apply only if the father of the plaintiff was alive on the date when the amendment came into force. The father of the plaintiff and the defendants died 8 years prior to the amendment and hence the plaintiff is not a co-parcener. But she is entitled to 1/3rd share of 1/2 share of her father.

4. The trial court accepted the contention of the second defendant and granted a preliminary decree for partition by fixing the share of the plaintiff as 1/6th. The Plaintiff filed the first appeal before the Sub Court, Bhavani and the first Appellate court confirmed the decree of the trial court as such. Aggrieved over the same, the plaintiff has filed this second appeal.

5. The Second Appeal was admitted on the following substantial questions of law:-

(i) Whether the courts below have committed error in treating the suit properties as ancestral properties?

(ii) Whether the courts below are correct in negativing the applicability of the Amended Act 39 of 2005 in Hindu Succession Act with reference to the case of the Appellant?

6. The suit properties are the properties allotted to the share of the plaintiff’s father by virtue of a partition deed dated 01.03.1967. The father of the plaintiff died intestate. The Appellant/Plainti