JUDGMENT

(Prayer: Appeal suit has been filed under Section 96 read with Order XLI Rule 1 of the Civil Procedure Code, against the judgment and decree of the I Additional District Court at Coimbatore, dated 03.04.2017 in OS. No.20 of 2015.)

R. Subramanian, J.

1. The first defendant in OS No.20 of 2015 assails the decree for partition granted by the Trial Court by way of this Appeal.

2. The said suit was initiated by one of the daughters of Kandhasamy, who died on 13.08.1965 leaving behind his wife Lakshmiammal, two daughters viz. Vijayalakshmi and Indiradevi, the second defendant and the plaintiff in the suit respectively, and Kailasamoorthy, the first defendant/appellant herein. It is not in dispute that Lakshmiammal died in 1997. The other defendants are the alienees from the first defendant, after 09.09.2005 viz. the date on which the Hindu succession Amendment Act 39 of 2005, came into force.

3. The plaintiff laid the suit primarily contending that the suit properties were ancestral Properties belonging to the joint family consisting of Kandhasamy, herself and defendants 1 and 2. She based her claim on the fact that the suit properties were allotted to Kandhasamy at a partition that took place between him and his brothers on 29.07.1959. Contending that after the introduction of the Hindu succession Amendment Act 39 of 2005, she would be a coparcener and she would be entitled to equal share with that of the son, she had claimed 1/3rd share in the suit properties.

4. The first defendant Kailasamoorthy, the son, resisted the claim, while the second defendant daughter Vijayalakshmi sailed with the plaintiff. The claim was resisted principally on the ground that Kandhasamy having died even in the year 1965, the plaintiff would not become a coparcener, the Amending Act would apply only if the Hindu father was alive on the date of its coming into force viz. 09.09.2005. The first defendant in fact if we can say so, with fairness, conceded the share of the plaintiff in the ½ share that would have belonged to Kandhasamy, if a partition had taken place just before his death (Notional Partition under Section 6 of the Hindu succession Act 1956). It was also contended that the suit was hit by limitation.

5. On the above pleadings, the learned Trial Judge framed the following issues:

1.Whether the sale by 1st defendant in respect of 22 cents in favour of 3rd and 4th defendant is legally valid and bind on the plaintiff;

2.Whether the suit properties are ancestral coparcenary property belonging to the coparcenary consisting the plaintiff and defendants 1 and 2;

3. Whether the plaintiff is entitled for 1/3 share in the suit property; and

4.What other relief the plaintiff is entitled to.

6. At trial, the plaintiff was examined as P.W.1 and Exhibits A1 to A10 were marked. The defendants did not let in any evidence either oral or documentary.

7. The learned Trial Judge took up issues 2 and 3 together and on appreciation of the evidence concluded that the properties in the hands of Kandhasamy were his self-acquisition and not ancestral in nature. In order to come to the said conclusion, the learned Trial Judge relied heavily upon the partition that had taken place in 29.07.1959 between Kandhasamy and his brothers to conclude that property allotted to Kandhasamy at a partition between him and his brothers would be his self-acquisition.

8. Upon the said conclusion, the learned Trial Judge held that as heirs of Kandhasamy, the plaintiff and defendants 1 and 2 would be entitled to 1/3rd share each. On the prayer for declaration that the alienations by the first defendant are invalid, the learned Trial Judge concluded that they would be valid to the extent of the 1/3rd share of the first defendant viz. the alienor. Aggrieved the first defendant is on Appeal.

9. We have heard Mr.P.Valliappan, le