The central legal point established in the judgment is the distinction between obstructed and unobstructed heritage under the Hindu Succession Act, 39/2005, and its impact on the entitlement of female heirs to ancestral property.

JUDGMENT

(Prayer: Appeal Suit is filed under Section 96 of C.P.C., against the judgment and decree dated 26.02.2015 in O.S.No.154 of 2013 on the file of the Additional District Court, Namakkal so far as it relates to granting a decree for partition in favour of the plaintiff, the respondent herein for 1/3rd share in schedule 1 of the suit property.

Appeal Suit is filed under Section 96 of C.P.C., praying to set aside the judgment and decree dated 26.02.2015 made in O.S.No.154 of 2013 on the file of the Additional District Court, Namakkal.)

Common Judgment

1. These two appeals are directed against the judgment and decree passed by the Trial Court in O.S.No.154 of 2013 filed for partition of the 1st and 2nd schedule of the suit properties. The Trial Court, while considering positively in favour of the plaintiff in respect of 1st schedule property, dismissed the suit in respect of 2nd schedule property. The defendants, who has lost the suit in respect of 1st schedule property had preferred A.S.No.341 of 2015. The plaintiff, who has lost the suit in respect of 2nd schedule property has preferred A.S.No.353 of 2015.

2. The short facts involved in this case as stated in the plaint is that, the 2nd defendant/Thangavel is the father of plaintiff/Thangamal and 1st defendant Chinnusamy. The plaintiff claiming suit schedule properties are ancestral properties and jointly held by Thangavel and his two children, prepared the suit for partition. According to the plaintiff, the properties enumerated in 1st schedule of the plaint was ancestral property of Thangavel, which he got through the partition between his parents, brother and son vide registered deed dated 31.07.1981. From out of the said nucleus, 2nd schedule property was purchased. While so, both 1st and 2nd schedule of the suit properties have attained the character of coparcener property and available for division between sons and daughter of Hindu Male Karta namely Thangavel. The amended Hindu Succession Act, 39/2005 recognises the female heirs as coparcener along with male heirs, while so ignoring the right of the daughter, who is the plaintiff, her father Thangavel executed a release deed on 11.02.2013, in favour of his son Chinnusamy, the 1st defendant in respect of property mentioned under 1st schedule. Such release in favour of one of the coparcener will inure the right and enlarge the right of other coparcener. Therefore, the plaintiff is entitled for ½ share in the properties mentioned in 1st schedule.

3. Regarding the property mentioned in 2nd schedule, being the property purchased from the ancestral nucleus and surplus also carries character of ancestral property in which the plaintiff is entitled for 1/3rd share. The 2nd defendant in respect of this property had clandestinely executed a registered settlement deed on 03.02.2013 in favour of his son Chinnusamy/ the 1st defendant. This came to the knowledge of the defendant only on 01.10.2013. The said settlement deed is void and will not take away the share of the plaintiff in the suit 2nd schedule property. Therefore, the suit is laid claiming ½ share in the 1st schedule and 1/3rd share in 2nd schedule of the suit properties.

4. The 2nd defendant denying the averments made in the plaint filed had contended that after the partition between him, his parents and brother on 31.07.1981, the 1st schedule property has become the absolute property held jointly by the defendants. Thereafter, the property has no trace of coparcener character. In any event, since division has been effected prior to 20.12.2004, the plaintiff being a female heirs, she can have no right in the property. Therefore, the release of his right in favour of 1st defendant vide release deed dated 11.02.2013 is valid.

5. As far as 2nd schedule property is concerned, same was purchased by the 2nd defendant on 24.10.1994 from out of his independent earning. Being his absolute property, he has every right to deal with it as per his wish. He, out of love and affection, had