Female legal heirs are entitled to equal shares in ancestral properties, as established in 'Vineeta Sharma vs. Rakesh Sharma & Others', and the recent amendment to Section 23 of the Hindu Succession Act, 1956, allows daughters to claim a share in dwelling houses.

JUDGMENT

(Prayer in S.A.No.421 of 2006: Second Appeal filed under Section 100 CPC, 1908 against the decree and judgment dated 18.03.2005 passed in A.S.No.50 of 2001, on the file of the I Additional District Court, Erode, reversing the decree and judgment dated 18.08.1998 passed in O.S.No.680 of 1981, on the file of the I Additional District Munsif Court, Erode.

S.A.No.422 of 2006: Second Appeal filed under Section 100 CPC, 1908 against the decree and judgment dated 18.03.2005 passed in A.S.No.51 of 2001, on the file of the I Additional District Court, Erode, upholding the decree and judgment dated 18.08.1998 passed in O.S.No.680 of 1981, on the file of the I Additional District Munsif Court, Erode.)

Common Judgment

1. The appellant in both the appeals is the plaintiff in O.S.No.680/1981 on the file of I Additional District Munsif Court, Erode. She filed the suit for partition and separate possession of the suit properties.

2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present appeals would also be indicated.

3. The minimum facts that are required for the disposal of the present second appeals are as follows:

The plaintiff is the daughter of the first defendant and the defendants 2 & 3 are her brothers. The tenth defendant is the husband of the plaintiff. The case of the plaintiff is that the suit properties are the self acquired properties of her father late Kolandha Gounder and that she is entitled to 1/32 share in Item Nos.1 to 3 and 1/64 share in Item Nos. 4 & 5 and 1/4 share in Item Nos.6 to 8 of the suit properties. According to her, the defendants 4, 6, 8 and 9 are having 1/8 share in Item Nos.1 & 2 of the suit schedule properties. It is further contended by her that though she requested the defendants 1 to 3 for effecting partition, they did not come forward to do the same. Hence, she has filed the suit.

4. The defendants 4 to 9 and 11 to 29 remained absent before the trial Court and were set ex parte.

5. The suit was resisted by the defendants 1 to 3 and 10 on the following grounds:

1) The suit properties are not the self acquired properties of late Kolandha Gounder. He had purchased the suit items 1 to 3 from out of the income derived from his ancestral properties and also by selling some of his ancestral properties.

2) The suit items 4 & 5 were purchased by the defendants 2 & 10 jointly and the plaintiff cannot claim any right over the same.

3) The suit items 6 to 8 are dwelling houses and hence, the plaintiff cannot seek for any partition as per Section 23 of the Hindu Succession Act, 1956.

4) The plaintiff is entitled to get only 1/12 share in suit items 1 to 3 alone.

6. The trial Court after framing necessary issues and after full contest decreed the suit partly vide its decree and judgment dated 18.08.1998. A preliminary decree for partition dividing suit items 1 to 3 and 6 to 8 into four equal shares and to allot one such share in favour of the plaintiff was passed by the trial Court. The suit was dismissed as regards items 4 & 5 and also with regard to mesne profit on the following grounds:

1) The suit items 1 to 3 and 6 to 8 are the self acquired properties of late Kolandha Gounder.

2) Ex.A9 to Ex.A18 proves that Kolandha Gounder purchased the suit Items 6 to 8 from out of the income derived from suit items 1 to 3 and therefore, the plaintiff is entitled to get 1/4 share in the above items.

7. Aggrieved over same the plaintiff preferred an appeal in A.S.No.51 of 2001 and the second defendant preferred an appeal in A.S.No.50 of 2001 before the I Additional District Court, Erode. The first appellate court after analysing the oral and documentary evidence adduced on both sides, passed a common judgment dated 18.03.2005 reducing the share of the plaintiff on the following grounds:

1) The suit items 1 to 3 were purchased by late Kolandha Gounder by selling his ancestral properties and therefore, they hav