Judgment :- After hearing both counsel on 05.12.2003, we have reserved the Appeal for judgment. During discussion on 09.12.2003, we have differed in our views and there was difference of opinion between us in the matter. Therefore, I have rendered my separate judgment giving reasonings after settingforth the pleadings and findings of the trial court and also the contentions of the parties. In this Appeal, I have also received two additional documents in CMP No.10477/2003 as additional documents (Exs.B-10 and B-11) for the reasons set forth infra in the judgment. Per Mrs. R.Banumathi, J. This Appeal arises out of judgment and decree of VII Additional Judge, City Civil Court, Chennai in O.S.3053/1998 dated 24.04.2002. Plaintiff is the Appellant. D2 and D5 have preferred the Cross Objection. 2. The Appeal arises on these common grounds;- The dispute relating to Suit Properties:- 'A' Schedule - residential house at No.19, Mandaveli; 'B' Schedule - a Lodge bearing Door No.9, Nallathambi Mudali Street, Triplicane. Suit for Partition of 1/4th share of 'A' and 'B' Schedule Property was decreed. However, finding that 'A' schedule Property being the residential house, under Section 23 of Hindu Succession Act, the trial court postponed Plaintiff's claim of Partition. 3. The parties are related as under:- Appasami Mudaliar (died in 1918) = Kamalammal(died in 1928) | --------------------------------------- | | Thirunavukkarasu Rathina Sabapathy Mudaliar Mudaliar (died on 18.07.1974) =Krishnaveni died in 1994 | | ---------------------------------------------------- | | | | Kokila Malliga Ramachandran Swathanthira (married-1958) (married-1967) D1 (daughter) Plaintiff D3 died on (Spinster)D2 30.10.2000 | ------------------------------------------- | | | | | | Thavamani Abhirami Shanthi (widow) (daughter)married (daughter)(unmarried) D4 D5 D6 4. Case of Plaintiff is that Suit Properties are self acquired properties of Plaintiff's father Rathina Sabapathy Mudaliar. After his death, Plaintiff, Defendants and their mother Kamalammal have been in joint possession and enjoyment of the suit Properties. Since the first Defendant was adopting hostile attitude towards the Plaintiff, Plaintiff issued Ex.A-1 Notice to the Defendants calling upon them to effect Partition and separate possession. Since the Defendants have not effected the Partition, Plaintiff has filed the Suit for,- (i) Partition of 1/4th share and to pass Preliminary Decree and to appoint Commissioner for division of the Properties; (ii) for determination of future mesne profits to order enquiry under Order XX Rule 12 CPC, and such other reliefs. 5. Since the Defendants have not effected the Partition, Plaintiff has filed the Suit for,- (i) Partition of 1/4th share and to pass Preliminary Decree and to appoint Commissioner for division of the Properties; (ii) for determination of future mesne profits to order enquiry under Order XX Rule 12 CPC, and such other reliefs. 5. D1 has filed the Written Statement denying that the Suit Properties are the self acquired properties of Rathina Sabapathy Mudaliar. According to D1, Appasamy Mudaliar - grandfather of the Defendant has executed a registered Will dated 21.10.1918. Appasamy Mudaliar bequeathed two items of Properties (i) No.17, Taylors Road, Kilpauk; and (ii) Door No.36, Hunters Road, Vepery, Chennai. The Properties were bequeathed to the father of the first Defendant and his brother Thirunavukkarasu Mudaliar appointing Kamalammal, their mother as Executrix of the Will. The said Will was probated in O.P.No.274/1919. Later, Rathina Sabapathy Mudaliar and his brother Thirunavukkarasu Mudaliar have divided the Properties amongst themselves under the Partition Deed dated 02.07.1951. The ancestral Property bearing Door No.17, Taylors Road, Kilpauk was sold by the father of D1 in November 1961. That Sale Deed was executed by the father of D1 for himself and onbehalf of D1 - who was then minor. From out of the sale proceeds, Suit Property - Schedule 'B' in Door No.9, Nallathambi Street, Triplicane, which is presently the Mansion, was purchased by D1 under Ex.B-4 Sale Deed. 6. Likewise, the ancestral Property in Door No.36, Hunters Road, Vepery was sold by D1's father Rathina Sabapathy Mudaliar on 29.03.1973 for a sale consideration of Rs.1,05,000/-. On the very same day, utilising part of the sale consideration, residential house in Mandhaveli - 'A' Schedule Property was purchased by D1. Thus, both Items of Suit Properties are the joint family Properties of D1 and his father Rathina Sabapathy Mudaliar. The Suit Properties are not self acquired Properties of Rathina Sabapathy Mudaliar. In any event, Plaintiff is not entitled to a share in the Suit Properties since at the time of marriage, Plaintiff was provided lot of jewels and her marriage was performed in a grand manner. The Plaintiff being excluded from the possession of the Suit Properties, she is not entitled to a share in the Suit Properties. 7. On the above pleadings, two issues were framed in the trial court. Parties adduced oral and documentary evidence. The Plaintiff being excluded from the possession of the Suit Properties, she is not entitled to a share in the Suit Properties. 7. On the above pleadings, two issues were framed in the trial court. Parties adduced oral and documentary evidence. On behalf of the Plaintiff, P.W.1, Natesa Mudaliar was examined. D2 / Swathanthira was examined as D.W.1. Exs.A-1 and A-2 and B-1 to B-9 were marked. Upon consideration of the evidence, trial court passed Preliminary Decree for Partition of 1/4th share on the following findings,- (i) that the Defendants have not proved 'A' Schedule Property purchased from out of joint family funds and that 'A' schedule Property is the self acquired Property of Rathina Sabapathy Mudaliar; (ii) Plaintiff being married daughter and D1 - the son and D2 - the unmarried daughter, and 'A' Schedule Property being the residential house, deferred the Partition of 'A' Schedule house under Section 23 of Hindu Succession Act; (iii) that there is nothing to correlate that 'B' Schedule Property in Triplicane was purchased from out of the sale proceeds of the ancestral Property i.e. Door No.17, Taylors Road. On the above findings, the Trial Court passed the Preliminary decree for Partition. However, the trial Court postponed the division of the residential house in Mandaveli - 'A' Schedule Property. 8. Aggrieved over postponement of division of the Property - 'A' Schedule Property under Sec.23 of Hindu Succession Act, Plaintiff has preferred this Appeal. As against passing of Preliminary Decree of Partition of 1/4th share, Defendants 2 and 5 have preferred the Cross Objection. In the Cross Objection, main contention urged onbehalf of Cross Objectors / Defendants 2 and 5 is that the property in the hands of Rathina Sabapathy Mudaliar was purely a coparcenary property / ancestral property passed on to Rathina Sabapathy Mudaliar as per the Will probated. It is the further contention that Rathina Sabapathy Mudaliar had no independent income of his own but only survived to the estate of the ancestors. Claiming the suit property to be Hindu joint family property, it is submitted that Rathina Sabapathy Mudaliar, D1 Ramachandran and D2 Swathanthira being unmarried female heir succeeded to the property under survivorship. It is the further contention that Rathina Sabapathy Mudaliar had no independent income of his own but only survived to the estate of the ancestors. Claiming the suit property to be Hindu joint family property, it is submitted that Rathina Sabapathy Mudaliar, D1 Ramachandran and D2 Swathanthira being unmarried female heir succeeded to the property under survivorship. Contending that the Hindu Succession Act (Tamil Nadu Amendment Act), 1989 is applicable and by virtue of which D2 - unmarried daughter becomes a coparcener, it is submitted that the Trial Court erred in not considering the applicability of the provisions of Tamil Nadu Amendment Act, 1989. Ouster of Plaintiff from the enjoyment of the Suit Property is yet another point urged onbehalf of Defendants 2 and 5 / Cross Objectors. 9. Adopting the reasonings and findings of the trial court and at the same time insisting for immediate division of 'A' Schedule Property, the learned counsel for the Appellant / Plaintiff has urged that the Suit Properties are proved to be neither the coparcenary Properties nor the joint family Properties. The Main contention is, when Appasamy Mudaliar had bequeathed the Properties under the Will (which was also probated), the sons Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar had acquired the same as their self acquired Properties. Taking us through the written statement, the learned counsel for the Plaintiff submitted that the nature and character of the Suit Property is not clearly setforth in the written statement and further submitted that there is no evidence or pleadings that the Property acquired by Rathina Sabapathy Mudaliar from his father under the Will was thrown into the common hotchpot. Drawing the attention of the Court to Ex.B-5 Sale Deed and placing reliance upon 1996 (1) MLJ 251 , it is further submitted that merely because the son - D1 signed in the Sale Deed would not show that the Property is thrown into the common hotchpot. It is the further contention that D2 though an unmarried daughter is placed on the similar footing as that of the Plaintiff, it is submitted that D2 cannot have any march over the Plaintiff's claim of right taking advantage of the provisions of Hindu Succession (Tamil Nadu Amendment) Act, 1989. 10. It is the further contention that D2 though an unmarried daughter is placed on the similar footing as that of the Plaintiff, it is submitted that D2 cannot have any march over the Plaintiff's claim of right taking advantage of the provisions of Hindu Succession (Tamil Nadu Amendment) Act, 1989. 10. Assailing the findings of the trial court and allotment of 1/4th share to the Plaintiff, onbehalf of the Defendants it is submitted that D1 being a Hindu coparcener, has acquired right by birth in the Property of his grandfather. It is further submitted that in spite of the Will, Rathina Sabapathy Mudaliar and Thirunavukkarasu Mudaliar have succeeded to the Property under Non-testamentary succession and that there is devolution by survivorship. It is submitted that when the family properties devolved upon Rathina Sabapathy Mudaliar by survivorship bequeathing the Properties under Will, would not be of any legal importance. Further contention is that in any event subsequent conduct of parties would clearly establish that father and son (D1) were in joint enjoyment of the properties. The Defendants mainly rely upon proximity of time in purchase of 'A' and 'B' Schedule Properties and Exs.B-3 and B-5 Sale Deeds. It is submitted that Suit 'B' Schedule Property was purchased from out of the sale proceeds of the ancestral Property in Door No.17, Taylors Road, Kilpauk sold under Ex.B-3. Learned counsel for the Respondents / Defendants has further drawn the attention of the Court to purchase of 'A' schedule Property - residential house in Mandhaveli on 29.03.1973 from out of the sale consideration under Ex.B-5 selling the ancestral property in Door No.36, Hunters Road on the same day i.e.29.03.1973. 11. C.M.P.No.10477/2003: Petition filed under Or.41 R.27 CPC. This Petition was filed by the Defendants to receive additional documents including the finding of the Income Tax Appellate Tribunal that the Suit Properties are the Hindu joint family Properties of Rathina Sabapathy Mudaliar and D1. Inasmuch as 27 documents are filed. Upon hearing the arguments of both, for proper and effective adjudication of the contentious points arising between the parties in this Appeal, I am of the view that the following two documents could be received as additional evidence:- (i) Mortgage Deed executed by K.Rathina Sabapathy and Ramachandran to T.Vajravelu dt.01.03.1972. (ii) Certified copy of Order of Income Tax Appellate Tribunal, Madras dt.25.05.1979. (ii) Certified copy of Order of Income Tax Appellate Tribunal, Madras dt.25.05.1979. Accordingly, the documents are received as additional evidence and are marked as Exs.B-10 and B-11 by me. 12. Most of the documents filed along with the Petition relate to the period subsequent to the death of Rathina Sabapathy Mudaliar and how the parties - Krishnaveni and Ramachandran (D1) dealt with the Properties. In my view, those documents are not of much relevance. For instance, one of the documents sought to be filed as additional evidence is the Mortgage Deed (dated 31.10.1979) executed by Krishnaveni Ammal(1), Ramachandran (2), and Swathanthira-D2 (3) in favour of one M.G.L.Doss borrowing a sum of Rs.35,000/=. This Mortgage Deed, subsequent to the death of Rathina Sabapathy Mudaliar, would not in any way advance the case of the Defendants that the Plaintiff was excluded from the possession from being in joint possession of the Suit Properties. 13. Likewise, another Mortgage Deed for Rs.45,000/= (dated 22.06.1981) is sought to be filed as additional evidence. This is a Mortgage Deed by Krishnaveni (1) and Swathanthira -D2 (2) in favour of one K.Natarajan borrowing Rs.45,000/=. The said Mortgage Deed refers to a Release Deed executed by D1 Ramachandran relinquishing all his rights in the joint Hindu family in favour of his mother Krishnaveni and his sister Swathanthira D2. Asserting their individual rights, the Mortgagors viz., Krishnaveni and Swathanthira D2 have borrowed Rs.45,000/= from the said K.Natarajan. This Mortgage Deed also would not in any way advance the case of the Defendants that the Plaintiff was excluded from the possession nor would it establish the rights of Krishnaveni and D2 Swathanthira. It is relevant to note that the contention that D1 Ramachandran had already relinquished his rights was not at all raised before the trial court either in the written statement or during the trial. D2 has only adopted the written statement filed by D1, in which there is no pleading on these aspects. In the trial court, no documents were filed raising this point. Therefore, in my view, excepting the above two documents stated in para(11), number of other documents filed in CMP No.10477/2003 are not of much relevance and not taken into consideration. 14. In the trial court, no documents were filed raising this point. Therefore, in my view, excepting the above two documents stated in para(11), number of other documents filed in CMP No.10477/2003 are not of much relevance and not taken into consideration. 14. Upon consideration of submissions by both sides, judgment under Appeal and the materials on record and the additional documents received in this Appeal, in my considered view, the following points arise for determination; (i) Whether the joint family consisting of Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar, did not have joint family Property ? (ii) Whether D1 is not right in contending that 'A' Schedule Property - residential house in Mandhaveli was purchased by selling joint family property in Door No.36, Hunters Road under Ex.B-5 Sale Deed ? (iii) Are not the Defendants right in claiming that B Schedule Property - Mansion in Triplicane was purchased from and out of the sale proceeds by selling the joint family property in Door No.17, Taylors Road, Kilpauk ? (iv)Whether the trial court was right in finding that the Suit Properties are the self acquired Properties of Rathina Sabapathy Mudaliar and right in passing Preliminary Decree for Partition of 1/4th share ? 15. Points 1 to 4:- The trial court has found that the Defendants have not proved that the Properties were purchased from out of the sale proceeds of the ancestral Properties. 'A' and 'B' Schedule Properties were found to be the self acquired properties of Rathina Sabapathy Mudaliar mainly on the basis of the Will left by Appasamy Mudaliar. After careful consideration of the evidence on record, I have no reservation in observing that the finding of the lower court is not based on the materials on record. The findings of the trial court is perverse without proper appreciation of the evidence on record. 16. Coparcenary property of Appasamy Mudaliar's family: Let us recapitulate the genealogy of the family of Appasamy Mudalir. Appasamy Mudaliar and his two sons, viz., Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar constitute the coparcenary. A Hindu coparcenary is a much narrower body than the joint family. Generally speaking, Hindu coparcenary includes sons, grandsons and great grandsons of the holder of the joint Property for the time being. In other words, Hindu coparcenary comprises of three generations next to the holder in unbroken male descendant. A Hindu coparcenary is a much narrower body than the joint family. Generally speaking, Hindu coparcenary includes sons, grandsons and great grandsons of the holder of the joint Property for the time being. In other words, Hindu coparcenary comprises of three generations next to the holder in unbroken male descendant. In a Hindu coparcenary, a coparcener acquires right by birth in the joint coparcenary property. 17. The status of the undivided Hindu family or the coparcenary is apparently too familiar to everyone requiring any discussion. However, we may refer to the following passage in AIR 1988 SC 576 for better understanding of the question urged in this Appeal. "The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like. It is a narrower body than joint family. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. The reason why coparcenership is so limited is to be found in the tenet of the Hindu religion that only male descendants up to three degrees can offer spiritual ministration to an ancestor. Only males can be coparceners".(See: Hindu Law by N.R.Raghavachariar 8th Edition P.2021) Thus, Appasamy Mudaliar and his sons Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar constitute the coparcenary. Appasamy Mudaliar and his wife Kamalammal and their sons Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar were living as joint family. When once the existence of joint family is not disputed, the property held by the family assumes the character of coparcenary property. Every male member / coparcener within the above said descendant would be entitled to the share by birth. 18. The family of Appasamy Mudaliar owned the following items of Properties interalia; (As seen from Ex.B-1, Partition Deed). The details of other items of Properties owned by the family are not discernible from the materials on record. 19. Since Appasamy Mudaliar and his sons were living as joint family, undoubtedly the above Properties assumed the character of coparcenary properties. The essential feature of ancestral property is clear from the fact that Appasamy Mudaliar and his sons were living together and have become joint owners. 19. Since Appasamy Mudaliar and his sons were living as joint family, undoubtedly the above Properties assumed the character of coparcenary properties. The essential feature of ancestral property is clear from the fact that Appasamy Mudaliar and his sons were living together and have become joint owners. As coparceners / male members, his sons Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar have acquired share in the coparcenary property by birth. There is no material showing that the above Properties are the self acquired Properties of Appasamy Mudaliar. Therefore, according to the MITAKSHARA, the son has a right by birth in his father's and grandfather's estate, but a distinction is made in this respect by Mitakshara itself. In the ancestral or grandfather's property in the hands of the father, the son has equal rights with his father; while in the self-acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominant interest in the same. The son can assert an equal right with the father only when the grandfather's property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his life-time. On both these occasions the grandfather's property comes to the father by virtue of the latter's legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands. 20. Will left by Appasamy Mudaliar:- Appasamy Mudaliar had left the Will dated 21.10.1918 bequeathing the above Properties. In the said Will, Kamalammal was appointed as the Executrix and she was in possession of the Property as Executrix of the Will until she died in 1928. The Property being coparcenary property, the question arises as to what is the effect of the Will left by Appasamy Mudaliar. Prior to 1956, before coming into force of Hindu Succession Act, 1956, no coparcener under Mitakshara can dispose of his undivided interest in the joint family either by way of gift or by Will except with the consent of other coparceners. Prior to 1956, before coming into force of Hindu Succession Act, 1956, no coparcener under Mitakshara can dispose of his undivided interest in the joint family either by way of gift or by Will except with the consent of other coparceners. Gift or bequest by a coparcener of his undivided interest in coparcenary property would be void in toto and would not bind even the donor or his share in the property.... So also in the case of a will of family property made by all the coparceners, its validity will be upheld on the ground that when they so join together, they constitute one absolute owner of the property and as such they are in a position to make a will. (Emphasis added). (vide Hindu Law N.R.Raghavachariar - 8th Edition 1987 Page No.383) In one case before the Mysore High Court, Ariyamurthy ..vs.. Subbaraya Setty, the question arose whether a will executed by the father disposing of the joint family property amongst his sons and wife with the consent of the sons, one of whom was a minor at the time, could be upheld either as a will with the consent of all the other coparceners or as family arrangement; it was held that a will by a coparcener though he is the father cannot be upheld even if the sons are shown to have consented to the disposition because, on the death of a coparcener the right of survivorship of the other coparceners prevails over the father's disposition, and that such a disposition cannot be upheld even as a family arrangement since all the parties thereto were not sui juris one of them being a minor. Referring to the decision of the Privy Council in Brijraj Singh ..vs.. Sivadhan Singh, I.L.R.35 All.337 and the decision of the Madras High Court in Subbarama Reddy ..vs.. Ramamma, I.L.R.43 Madras 824, differing from Appanam Patrachariar ..vs.. Srinivasachariar, I.L.R.40 Madras 1122, and of the Bombay High Court in Bika Bai ..vs.. Purushotham, AIR 1926 Bombay 378 the Court came to the conclusion that a testamentary disposition by a coparcener of coparcenary property is fundamentally opposed to the principles of Hindu Law, and that even the consent of the general body of coparceners cannot validate such a disposition. (vide Hindu Law N.R.Raghavachariar - 8th Edition 1987 Page No.383-384). 21. Purushotham, AIR 1926 Bombay 378 the Court came to the conclusion that a testamentary disposition by a coparcener of coparcenary property is fundamentally opposed to the principles of Hindu Law, and that even the consent of the general body of coparceners cannot validate such a disposition. (vide Hindu Law N.R.Raghavachariar - 8th Edition 1987 Page No.383-384). 21. In the light of the above, now the main question that arises for consideration is whether father Appasamy Mudaliar can make such testamentary disposition amongst his sons Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar and whether their acceptance of the Will would in any way affect the survivorship. The Will left by Appasamy Mudaliar not valid in the eye of law and that Will does not have the effect of destroying the right of survivorship. At the most, it could only be taken as a family arrangement without nullifying the coparcenary right and the right of survivorship of Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar. In my view, the Will executed by Appasamy Mudaliar in favour of his own sons would not in any way prevail upon the survivorship nor would take away the coparcenary character of the above Properties and other Properties bequeathed under Will. 22. Only after passing of Hindu Succession Act, 1956, under Section 30 of the Hindu Succession Act, a coparcener can make a valid Will in respect of his undivided interest though he continues undivided till death. Only Section 30 of Hindu Succession Act abrogates the pre-existing Hindu Law as regards testamentary disposition of undivided interest. Sec.30 of Hindu Succession Act, 1956 is prospective. It cannot validate the Will made by Appasamy Mudaliar, who died on 04.12.1918 - prior to coming into force of the Act. No doubt, the Will was probated in the High Court at Madras in O.P.274/1919. It is settled law that a testamentary court whilst granting probate or letters of administration is only concerned with finding out whether or not the Testator executed the testamentary instrument of his free will. Probate of the Will is only to the effect that the testator was in a fit mental condition while making the testamentary disposition. Probate of the Will would not in any way validate that testamentary disposition which otherwise was prohibited under Mitakshara; nor does it take away the character of coparcenary property. 23. Probate of the Will is only to the effect that the testator was in a fit mental condition while making the testamentary disposition. Probate of the Will would not in any way validate that testamentary disposition which otherwise was prohibited under Mitakshara; nor does it take away the character of coparcenary property. 23. Thus the property with the father of D1 and his brother Thirunavukkarasu Mudaliar devolved upon them as coparceners under survivorship. Appasamy Mudaliar did not intend that the Property should be taken by the sons as their own self acquisition is clear by more than one aspect. (i) Appointment of Kamalammal as the Executrix of the Will; (ii) Separate Properties were not bequeathed to Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar and it was common bequest; (iii) that even after death of Appasamy Mudaliar, the brothers continued to jointly enjoy the Property. 24. The above findings is fortified by the Deed of Partition - Ex.B-1 (dated 02.07.1951) between the brothers. From the recitals in Ex.B-1, Partition Deed, it is clear that Thirunavukkarasu Mudaliar and Rathina Sabapathy Mudaliar were in common enjoyment of the bequeathed properties as is clear from the following:- "Whereas Kamalammal the mother of the parties hereto was in possession of the properties as Executrix of the said Will until 1928 when she died. Whereas since the death of their mother the parties hereto have been enjoying the properties absolutely in common till now". Under Ex.B-1 Partition Deed, 'B' Schedule Property - the following items were allotted to the share of Rathina Sabapathy Mudaliar. House and ground No.17, Taylors Road, Kilpauk; House and ground No.36, Hunters Road, Vepery; House and ground No.22, Hunters Road, Vepery. It is the definite case of the first Defendant that the above Properties allotted to Rathina Sabapathy Mudaliar were sold and from that sale proceeds, the Suit Properties 'A' and 'B' Schedule were purchased. It is his further case that Suit Properties so purchased from out of the sale proceeds of the family properties were commonly enjoyed by him and his father Rathina Sabapathy Mudaliar and the Suit Properties are Hindu joint family property. 25. Purchase of 'B' Schedule Property:- Sale under Ex.B-3 Sale Deed dt.03.11.1961. It is his further case that Suit Properties so purchased from out of the sale proceeds of the family properties were commonly enjoyed by him and his father Rathina Sabapathy Mudaliar and the Suit Properties are Hindu joint family property. 25. Purchase of 'B' Schedule Property:- Sale under Ex.B-3 Sale Deed dt.03.11.1961. Rathina Sabapathy Mudaliar for himself and on behalf of his minor son Ramachandran (D1) had sold the Property in Door No.17, Taylors Road, Kilpauk together with the buildings thereon under Ex.B-3 Sale Deed (dated 03.11.1961) for Rs.45,000/= in favour of Joseph Taliath. Rathina Sabapathy Mudaliar had sold the Property for himself and as Manager of joint family as seen from the following recitals in Ex.B-3. "In witness whereof the first vendor has hereunto set his hands for self and as father and guardian of the second vendor and as Manager of the Joint Family consisting of himself and the second vendor for self and as guardian of minor son K.Rathina Sabapathy Mudaliar". 26. Two things emerge from the above recitals; (1) D1 Ramachandran was the Member of the Joint Hindu Family and that his father Rathina Sabapathy Mudaliar was the Manager of the joint family consisting of himself and D1; (ii) D1 - then minor son was included as vendor. Inclusion of D1, the then minor son as vendor in Ex.B-3 is a formidable circumstance, evidencing his right in the joint family Properties. It clearly establishes that the properties were enjoyed in common as the Hindu undivided family properties. It is too farfetched the arguments that D1, then minor son was added merely at the insistence of the purchaser. 27. 'B' Schedule Property - Ex.B4 (09.03.1962) 'B' Schedule Property is the Mansion in Door No.9, Nallathambi Street, Triplicane purchased by Rathina Sabapathy Mudaliar under Ex.B-4 Sale Deed (09.03.1962) for Rs.96,000/=. Case of Defendants is that the sale proceeds under Ex.B-3 Sale Deed (dt.03.11.1961) was utilised for purchase of 'B' Schedule Property. The proximity time of purchase of 'B' Schedule (within four months from sale under Ex.B-3) clearly suggests that sale proceeds of Ex.B-3 was utilised for purchase of B Schedule Property. 28. The fact remains that at the time of purchase of 'B' Schedule under Ex.B-4, Rathina Sabapathy Mudaliar was the Manager of the joint family consisting of himself and D1. The proximity time of purchase of 'B' Schedule (within four months from sale under Ex.B-3) clearly suggests that sale proceeds of Ex.B-3 was utilised for purchase of B Schedule Property. 28. The fact remains that at the time of purchase of 'B' Schedule under Ex.B-4, Rathina Sabapathy Mudaliar was the Manager of the joint family consisting of himself and D1. The arguments advanced onbehalf of the Plaintiff as to why D1 did not insist for being included as purchaser under Ex.B-4 is purely argumentative. It is to be noted that at the time of purchase of 'B' Schedule Property, D1 being junior member of the joint Hindu family, was only aged about 16-17 years. He cannot be expected to have insisted for inclusion of his name as purchaser under Ex.B-4 Sale Deed. In my view, the proximity of time of purchase of B Schedule Property within four months of sale of joint family property in No.17, Taylors Road, Kilpauk coupled with the evidence of D.W.1 clearly shows that the acquisition of 'B' Schedule Property was made with the aid of Hindu joint family property. 29. Purchase of 'A' Schedule Property:- Sale under Ex.B-5 Sale Deed (29.03.1973) The joint family Property in 36, Hunters Road, Vepery allotted to Rathina Sabapathy Mudaliar under Ex.B-1 Partition Deed was sold to one Mohammed Ishaq under Ex.B-5 Sale Deed dated 29.03.1973 by Rathina Sabapathy Mudaliar and D1 Ramachandran for Rs.1,05,000/=. Here again, inclusion of D1 Ramachandran as the vendor is a strong piece of evidence indicating that the Property was in joint enjoyment of the father and son. Trial court erred in overlooking such joint possession and enjoyment of Rathina Sabapathy Mudaliar and D1. 30. Purchase of 'A' Schedule Property under Ex.B-6 Sale Deed (dated 29.03.1973):- Utilising the sale proceeds of Ex.B-5 Sale Deed, on the same date i.e.29.03.1973 'A' Schedule Property - residential house in Mandhaveli was purchased for a sale consideration of Rs.45,000/=. The fact that 'A' Schedule Property was purchased on the same date of sale under Ex.B-5 clearly shows that the Suit 'A' Schedule Property was acquired from out of the sale proceeds of the Hindu joint family property. No amount of arguments advanced by the Plaintiff could upset this strong evidence. 31. The fact that 'A' Schedule Property was purchased on the same date of sale under Ex.B-5 clearly shows that the Suit 'A' Schedule Property was acquired from out of the sale proceeds of the Hindu joint family property. No amount of arguments advanced by the Plaintiff could upset this strong evidence. 31. The trial court committed serious and substantial error in overlooking the formidable circumstances stating that in Ex.B-6 Sale Deed, there are no recitals as to the source of consideration and wherefrom the consideration flew. How could a draftsman of the Sale Deed be expected to mention the source of consideration and how the vendors have raised the purchase money. The reasonings of the trial court cannot be strained to such an extent of ignoring the clear inference to be drawn that the sale under Ex.B-5 and purchase under Ex.B-6 are one and the same day. By so saying, the trial court sidestepped the strong evidence that the sale and purchase being on the same day, namely, 29.03.1973. The sale consideration under Ex.B-5 for a huge sum of Rs.1,05,000/= and purchase under Ex.B-6 was only for a lesser amount of Rs.45,000/=. From which the Trial Court ought to have drawn the legitimate inference that the sale proceeds from out of Ex.B-5 must have been utilised for purchase under Ex.B-6. I am unable to subscribe to the views of the trial court that the source of consideration is not indicated in Ex.B-6 Sale Deed and that the Suit Properties are the self acquisition of Rathina Sabapathy Mudaliar. 32. Conduct of the Parties:(C.M.P.10477/2003) Ex.B-10, Additional document received in this Appeal, is the Mortgage Deed (dated 01.03.1972) executed by Rathina Sabapathy Mudaliar and D1 Ramachandran to one Vajravelu borrowing Rs.32,000/=. Both Rathina Sabapathy Mudaliar and D1 Ramachandran have jointly mortgaged the Property at Triplicane - 'B'Schedule Property for its further improvement. The fact that both father and son have jointly mortgaged 'B' Schedule Property is the strong evidence showing joint possession and enjoyment and that the Suit Properties are Hindu joint family property. Both Rathina Sabapathy Mudaliar and D1 Ramachandran have jointly mortgaged the Property at Triplicane - 'B'Schedule Property for its further improvement. The fact that both father and son have jointly mortgaged 'B' Schedule Property is the strong evidence showing joint possession and enjoyment and that the Suit Properties are Hindu joint family property. In the property in Ex.B-10, as Mortgagors Rathina Sabapathy Mudaliar and Ramachandran D1 claimed themselves to be the members of Hindu coparcenary as seen from the following; "...they constitute members of the Hindu coparcenary and since the purchase the mortgagors had been in absolute possession, enjoyment and ownership of the same and for the purposes of construction of top floor vide B.A.No.1366/69 and for improvement of the property the mortgagors are in need of funds.." 33. In the decision relied upon by the Plaintiff in 1996 I MLJ Page No.251, it was held that the mere fact that the son joined in execution of subsequent mortgage deeds would not be sufficient to show that father intended to waive his separate right over his self-acquisition. That Principle has no bearing in the case in hand. Ex.B-10 is not the one solitary instance, where D1 was joined as the co-mortgagor. It is only one of the transactions evidencing the conduct of the parties which would impress the same with joint family character. 34. My conclusion that the Suit Properties are the joint Hindu family Properties is further strengthened by the Order of the Income tax Appellate Tribunal received by me as additional evidence Ex.B-11. After the death of Ramachandran, for the purpose of estate duty, the Assistant Controller found that the Property exclusively belonged to deceased Rathina Sabapathi Mudaliar and that the duty is payable as the exclusive property of Rathina Sabapathy Mudaliar passed into the hands of the legal heirs. In the Appeal preferred, the Appellate Controller of Estate Duty found that the Properties were acquired by Rathina Sabapathy Mudaliar from his father and was in enjoyment of the Hindu undivided family. The Assistant Controller of Estate Duty further found that the Properties were thrown into the family hotchpot and therefore deceased Rathina Sabapathy Mudaliar had only half share. As against the order of Appellate Controller of Estate Duty, the Department preferred Appeal before the Income Tax Appellate Tribunal, Madras. Upholding the conclusion of the Appellate Controller, the Income Tax Tribunal found "....... As against the order of Appellate Controller of Estate Duty, the Department preferred Appeal before the Income Tax Appellate Tribunal, Madras. Upholding the conclusion of the Appellate Controller, the Income Tax Tribunal found "....... it has to be held that the Properties in question belonged to the Hindu undivided family of which the deceased was the karta and that on the death of the deceased only the half share therein to which he would have been entitled on partition had passed under section 7 of the Estate Duty Act......". The contention raised by the Department that the income shown as joint undivided family income only for the purpose of gaining tax advantage was rejected by the Appellate Tribunal in the light of materials and conduct of the parties. Thus, finding the Suit Properties belonging to the Hindu undivided family of deceased Rathina Sabapathy Mudaliar, Income tax Appellate Tribunal confirmed the order of the Appellate Controller of Estate Duty. 35. The above finding of the Income Tax Appellate Tribunal is to be a matter reckoned with though not finding. My finding that the Suit Property being Hindu joint family property does not proceed merely from the additional documents received in this Appeal as Exs.B-10 and B-11. Those documents only fortify the conclusion arrived at from the documents and materials already placed before the trial court. The joint family character of the properties is well established. Therefore, in my view, the finding of the Trial Court that the Suit Properties are the self-acquisition of Ratnasabapathy Mudaliar cannot be sustained and is to be reversed. 36. Applicability of Tamil Nadu Amendment Act to Hindu Succession Act: Rathina Sabapathy Mudaliar died on 18.07.1974. Tamil Nadu Amendment Act to Hindu Succession Act came into force on 18.01.1990. The 2nd Defendant Swathanthira is the unmarried daughter of Rathina Sabapathy Mudaliar. By virtue of the Amendment Act, D2 claims to be the coparcener and she claims 1/3rd share along with D1 Ramachandran. Thus, the case of the Defendants is that Plaintiff is entitled to only 1/12th share (1/3 x 1/4). This contention does not merit acceptance. Tamil Nadu Amendment Act came into force on 18.01.1990. The Act is prospective. Right of Swathanthira (D2) got fixed even on the date of death of Rathina Sabapathy Mudaliar in 1974, on which date the Tamil Nadu Amendment Act was not in force. This contention does not merit acceptance. Tamil Nadu Amendment Act came into force on 18.01.1990. The Act is prospective. Right of Swathanthira (D2) got fixed even on the date of death of Rathina Sabapathy Mudaliar in 1974, on which date the Tamil Nadu Amendment Act was not in force. Therefore, on the date and when the right of Partition and the coparcenary Property opened i.e.on the date of death of Rathina Sabapathy Mudaliar on 18.07.1974, D2 was entitled to only 1/8th share. The provisions of the Tamil Nadu Amendment Act cannot be applied retrospectively. The contention raised by D2 in the Cross Objection claiming to be the coparcener that by virtue of Tamil Nadu Amendment Act, she is entitled to 5/12 share (1/3 + 1/12) cannot be sustained. 37. Shares:- For the foregoing reasons, I find that the Suit Property is the coparcenary property / Hindu joint family property of Rathina Sabapathy Mudaliar and D1 Ramachandran. D1 Ramachandran being a coparcener gets interest by birth in the coparcenary property. Thus D1 Ramachandran has acquired 1/2 share in the family Properties and his father Rathina Sabapathy Mudaliar being entitled to only 1/2 share. From out of 1/2 share of Rathina Sabapathy Mudaliar, Plaintiff is entitled to 1/8 share (1/2 x 1/4 ). While so, the trial court erred in concluding that the Plaintiff is entitled to 1/4th share. Therefore, the share of the Plaintiff is to be modified and the Cross Objection filed by the Defendants is to be allowed. 38. Section 23 of Hindu Succession Act: Under Section 23 of the Hindu Succession Act, married daughter has no right of residence in the family dwelling house. Though the trial court has found that the Plaintiff is entitled to 1/4th share in 'A' Schedule Property, applying Section 23 of Hindu Succession Act, trial court has postponed the division of dwelling house - A Schedule house in Mandhaveli. Section 23 is a special provision dealing with the partition of a dwelling house and the right of the male and female heirs of the intestate therein. There can be no doubt that a female heir specified in Class I of the Schedule to the Act inherits a share in a dwelling house absolutely. But, Section 23 postpones the right of such a female heir to claim partition of the dwelling house until the male heirs choose to divide their respective shares therein. 39. There can be no doubt that a female heir specified in Class I of the Schedule to the Act inherits a share in a dwelling house absolutely. But, Section 23 postpones the right of such a female heir to claim partition of the dwelling house until the male heirs choose to divide their respective shares therein. 39. The Appeal A.S.69/2003 is preferred on the only ground of assailing such deferring of the Partition under Section 23 of Hindu Succession Act. The learned counsel for the Appellant / Plaintiff has submitted that the trial court was not right in invoking Section 23. It is the contention of the Plaintiff that Rathina Sabapathy Mudaliar being survived by only one male heir and there are other female heirs, if Section 23 is to be applied, there is no possibility of the single male heir, viz., D1, choosing to divide the Property. It is further submitted that the right of Plaintiff to have Partition in 'A' Schedule Property cannot be postponed applying Sec.23 of Hindu Succession Act. 40. Countering the arguments of the Plaintiff, onbehalf of the Defendants, it is submitted that even if there is only one male heir, the female heir cannot claim partition of the residential house. Reliance is placed upon AIR 1981 MADRAS 62 and AIR 1996 SC 1826 . Holding that Section 23 applies even if intestate leaves behind single male heir, in AIR 1996 SC 1826 , the Supreme Court has held thus:- "Section 23 applies and prohibits partition of dwelling house of the deceased Hindu male or female intestate, who left surviving sole male heir and female heir/heirs and the right to claim partition by female heir is kept in abeyance and deferred during the life of the male heir or till he partitions or ceases to occupy and enjoy it or lets it out or till at a partition action, equities are worked out". 41. Whether right of Plaintiff to claim Partition is to be deferred in view of Section 23 need not be gone into detail in view of the subsequent change of events. After the Suit, D1 Ramachandran died on 30.10.2000. With the death of single male heir, the obstacle of the Plaintiff in claiming the Partition under Section 23 is removed. 41. Whether right of Plaintiff to claim Partition is to be deferred in view of Section 23 need not be gone into detail in view of the subsequent change of events. After the Suit, D1 Ramachandran died on 30.10.2000. With the death of single male heir, the obstacle of the Plaintiff in claiming the Partition under Section 23 is removed. Since there are only female heirs, right of Plaintiff to claim division of the residential house - 'A' Schedule Property cannot be postponed any further. Therefore, this Appeal A.S.No.69/2003 is to be allowed. 42. The trial court has not well appreciated the evidence and erred in omitting to draw inferences. The findings and reasonings of the trial court are not based upon the materials on record. Since the conclusion of the trial court finding the Suit Properties as the self acquired Properties of Rathina Sabapathy Mudaliar and allotting 1/4th share suffers from serious and substantial error, the same is to be reversed allowing the Cross Objection. It is further held that with the death of D1, the right of Plaintiff in claiming 'A' Schedule- residential house cannot be postponed and the Appeal A.S.69/2003 is to be allowed. 43. Cross Objection:- Therefore, the Cross Objection is allowed modifying the judgment and decree of VII Additional Judge, City Civil Court in O.S.3053/1998 dated 24.04.2002. It is held that the Plaintiff is entitled to 1/8th share and the judgment and decree of the trial court is modified accordingly. 44. A.S.No.69/2003:- The Order of the VII Additional Judge, City Civil Court in O.S.3053/1998 dated 24.04.2002 directing postponing of the Partition of 'A' Schedule Property is reversed and this Appeal is partly allowed subject to the modification of the shares in the Cross Objection. In view of the relationship of the parties, there is no order as to costs in both matters. Per Mr.P.Shanmugam., The plaintiff in the suit, aggrieved by the decree disallowing a portion of her claim, viz. 'A' Schedule property, has filed the appeal. The second and fifth defendants have filed the Cross Appeal as against the portion granting a decree in favour of the plaintiff in reference to the 'B' Schedule property. The parties are referred to as per their rankings before the trial court. 2. 'A' Schedule property, has filed the appeal. The second and fifth defendants have filed the Cross Appeal as against the portion granting a decree in favour of the plaintiff in reference to the 'B' Schedule property. The parties are referred to as per their rankings before the trial court. 2. The plaintiff, who is the sister of the first defendant (since dead), has been fighting for her share of their father's property who died in the year 1974 and her claim, after the death of her mother in the year 1994 having been declined, she filed the suit for partition in reference to two items of property, viz. 'A' and 'B' Schedules of properties. The case of the plaintiff is that the suit properties are the self-acquired, individual properties of her late father and that therefore she is entitled to one-fourth share thereof. 3. The learned Subordinate Judge, though having held that the properties are the self-acquired properties of the plaintiff's father and having granted a decree in her favour in reference to 'B' Schedule property, declined her prayer in reference to 'A' Schedule property since 'A' Schedule property is a dwelling house and as the plaintiff's brother (first defendant) is residing in the said house, Section 23 of the Hindu Succession Act disentitles her to a decree in respect of the said property. The appeal is against this judgment and decree. 4. The case of the defendants is that since the properties are coparcenary properties, the plaintiff is disentitled from claiming any share therein and hence, they have filed a cross appeal as against the said decree granting 'B' Schedule property to the plaintiff. 5. On admission of this appeal on 27.1.2003, it was submitted on behalf of the appellant that since the first defendant, brother of the plaintiff, died on 30.10.2003 during the course of the trial and his legal representatives, viz. defendants 4 to 6 having been impleaded in the suit, the question of declining the relief to the plaintiff in respect of 'A' Schedule property on the basis that the first defendant was residing in the said property, which is a dwelling house, by invoking Section 23 of the Hindu Succession Act would not arise and therefore, on this short question, the appeal has to be considered and allowed. 6. 6. Notice was ordered in the appeal and the matter was directed to be posted for final hearing and thereafter, the cross appeal was filed by the second and the fifth defendants. 7. Heard the counsel for the appellant and the respondents and considered the matter carefully. 8. The suit properties consisted of two items. The 'A' Schedule property is a residential house at Door No.19, South Canal Bank Road, Mandavelli, Chennai-28. The 'B' Schedule property is a building run as a Mansion with 40 rooms situated at Door No.9, Nalla Thambi Mudali Street, Triplicane, Chennai-5. 9. The following genealogy of the family would facilitate the appreciation of the rival submissions : APPASAMI MUDALIAR KAMALAMMAL (Died 1918) Wife (Died) | | ------------------------------- | | --------------------------------------------- | | | | | | | | Radhabai Thirunavukarasu | | (Daughter) Mudaliar | | (1st Son) | | | | Rathinasabapathy Krishnaveniammal - Mudaliar W/o. Rathinasab-pathy Mudaliar (2nd Son) Died on 18.7.1974 Died in 1994 | | ----------------- | ----------------------------------------------- | | | | | | | | | | | | | | | | Kokila Malliga Ramachandran Swathanthra (Plaintiff/ (3rd Defdt.) (1st Defdt.) (2nd Defdt.) Appellant) Married in Died on (Daughter - Married in 1967 30.10.2000 Spinster) 1958 | (Cross Objr.) | ------------------------------------ | | | | | | Thavamani Abhirami Shanthi (4th Defdt.) (5th Defdt.) (6th Defdt.) (Widow) (Daughter - (Daughter - Married) Unmarried) (Cross Objr.) FACTS 10. Late Appasami Mudaliar had two sons, viz. Thirunavukkarasu Mudaliar and Rathnasabapathy Mudaliar. He had executed a Will dated 21.10.1918 bequeathing his properties to his two sons and making his wife Tmt. Kamalammal as the Executrix of the said Will. The said Will was probated by the High Court of Madras in O.P. No.274 of 1919. Late Appasami Mudaliar died after some time of the execution of the Will. Thereafter, a deed of partition was entered into between the two brothers, viz. Thirunavukkarasu Mudaliar and Rathnasabapathy Mudaliar on 2.7.1951, dividing the properties bequeathed by their father late Appasami Mudaliar among themselves. The plaintiff and the defendants are the heirs of one of the brothers, viz. Rathnasabapathy Mudaliar, the younger of the two sons of late Appasami Mudaliar. Both the suit properties were purchased by Rathnasabapathy Mudaliar in his individual capacity by purchase deeds dated 9.3.1962 and 29.3.1973 respectively. Thereafter, Rathnasabapathy Mudaliar died on 18.7.1974. The wife of Rathnasabapathy Mudaliar, Krishnaveniammal, viz. The plaintiff and the defendants are the heirs of one of the brothers, viz. Rathnasabapathy Mudaliar, the younger of the two sons of late Appasami Mudaliar. Both the suit properties were purchased by Rathnasabapathy Mudaliar in his individual capacity by purchase deeds dated 9.3.1962 and 29.3.1973 respectively. Thereafter, Rathnasabapathy Mudaliar died on 18.7.1974. The wife of Rathnasabapathy Mudaliar, Krishnaveniammal, viz. the mother of the parties, died in the year 1994. 11. The plaintiff, by notice dated 7.3.1998, Ex.A.1, requested the defendants to effect a partition of the suit properties, inter alia, contending that the suit properties are the self-acquired and individual properties of her father late Rathnasabapathy Mudaliar and that after his death, her mother Krishnaveniammal along with defendants 1 and 2 are in joint possession of the same. In the reply notice dated 20.3.1998, Ex.A.2, the only objection put forth by the defendants was that the properties in question were managed by them and that the plaintiff did not object to their enjoyment of the said properties for the past four years, even after the death of their mother Krishnaveniammal, that she had been married off, providing lots of jewellery and that therefore, she is not entitled for a partition of the properties. In the above circumstances, plaintiff filed the above suit for partition of her one-fourth share of the suit properties. 12. In the amended plaint dated 24.4.1998, the plaintiff has pleaded that the suit properties are the self-acquired properties of the plaintiff's father who died intestate and that the plaintiff and the defendants are in joint possession of the properties. She has also stated that during the pendency of the suit, the first defendant died leaving behind him, the fourth defendant, his daughters, defendants 5 and 6 and they have succeeded to the estate of the deceased first defendant. Therefore, as the legal representatives of the first defendant, defendants 4 to 6 have succeeded to the estate of the first defendant and they are impleaded and in these circumstances, she prayed for preliminary decree for partition of her one-fourth share. 13. In the written statement dated 24.11.1988, it was submitted on behalf of the first defendant that late Appasami Mudaliar had executed a registered Will dated 21.10.1918. 13. In the written statement dated 24.11.1988, it was submitted on behalf of the first defendant that late Appasami Mudaliar had executed a registered Will dated 21.10.1918. As per that Will, he had bequeathed the properties at Door No.17, Taylors Road, Kilpauk, Chennai and Door No.36, Hunter's Road, Vepery, Chennai and her grandmother was appointed as Executrix to the said Will and the Will was duly probated in O.P. No.274 of 1919. As per the partition dated 2.7.1951 between the first defendant's father and his uncle, the father of the first defendant was put in possession of the properties at Door No.17, Taylors Road, Kilpauk, Chennai and Door No.36, Hunter's Road, Vepery, Chennai. Here, the properties are referred to as ancestral properties and it is stated that these properties were sold by the father of the first defendant on his behalf and also on behalf of the first defendant. It is further stated that suit 'B' Schedule property at Nalla Thambi Street, Triplicane was purchased by utilising the sale consideration obtained by the sale of the property at Door No.17, Taylors Road, Kilpauk, Chennai and that suit 'A' Schedule property at South Canal Bank Road, Mandaveli was purchased by utilising the sale consideration obtained by the sale of the property at Door No.36, Hunter's Road, Vepery, Chennai. The first defendant has denied that the suit properties are the self-acquired properties of Rathnasabapathy Mudaliar and by stating that the revenue records are in the name of the first defendant, prayed for dismissal of the suit. 14. The only issue framed by the learned Subordinate Judge is whether the plaintiff is entitled for the relief of partition. The learned Subordinate Judge held that the suit properties are the self-acquired properties of late Rathnasabapathy Mudaliar and that the plaintiff is entitled to one-fourth share therein. The learned Judge, however, declined to grant the relief in reference to 'A' Schedule property to the plaintiff on the ground that the said property was a dwelling house and that the first defendant is residing there and that there is a bar for the said claim under Section 23 of the Hindu Succession Act. The appeal is preferred by the plaintiff as against the respective disallowed portion of her claim and the cross appeal is preferred by the second and fifth defendants as against the allowed portion of the plaintiff's claim. 15. The appeal is preferred by the plaintiff as against the respective disallowed portion of her claim and the cross appeal is preferred by the second and fifth defendants as against the allowed portion of the plaintiff's claim. 15. The plaintiff, in the grounds of appeal, has submitted that notwithstanding the provisions of Section 23 of the Hindu Succession Act, the right to claim partition arises as soon as the male heir dies and that the first defendant died during the pendency of the suit leaving behind only female heirs who did not reside in the 'A' Schedule property. It is also submitted that the events that had taken place after filing the plaint had to be taken note of and therefore, the suit ought to have been decreed as prayed for. In the cross appeal filed by the second and the fifth defendants, they have pleaded that the property in the hands of Rathnasabapathy Mudaliar was purely a coparcenary and ancestral property, that upon his death, the said property had passed on due to the probate granted to the Will executed by late Appasami Mudaliar, that late Rathnasabapathy Mudaliar had no income of his own, that the suit properties have been purchased only after disposal of the coparcenary property. It is claimed that the first defendant had acquired the property by survivorship and the second defendant being an unmarried female heir, is entitled to succeed to the same. According to them, the second item, i.e. 'B' Schedule of the suit property is impartible on the date of the cause of action for the suit. It is also claimed that the suit is not properly valued since the plaintiff was not in joint possession of the suit property. 16. The points that will arise for consideration in this appeal are : (1) Whether there was a coparcenary consisting of late Appasami Mudaliar and Rathnasabapathy Mudaliar? (2) Whether the suit properties are the self-acquired and individual properties of late Rathnasabapathy Mudaliar ? 17. The suit 'A' and 'B' Schedules of properties were purchased in the name of late late Rathnasabapathy Mudaliar under Ex.B.6 dated 29.3.1973 and Ex.B.4 dated 9.3.1962. The case of the plaintiff is that they are the self-acquired, individual properties of late Rathnasabapathy Mudaliar and that therefore, the plaintiff as well as defendants 1, 2 and 3, who are sisters and brothers, are entitled to to equal shares. The case of the plaintiff is that they are the self-acquired, individual properties of late Rathnasabapathy Mudaliar and that therefore, the plaintiff as well as defendants 1, 2 and 3, who are sisters and brothers, are entitled to to equal shares. Whereas, the case of the first defendant, supported by the second defendant, is that though these properties were purchased in the name of late Rathnasabapathy Mudaliar, they were purchased by him by utilizing the funds obtained from the sale of coparcenary properties and that therefore, the suit properties should be treated as coparcenary properties, in which the male heirs and the fifth defendant, viz. unmarried female heir, alone are entitled to shares. 18. In order to appreciate these rival submissions, let us consider the documentary and other evidence available in this regard. DOCUMENTARY EVIDENCE 19-A Will dated 4.12.1918 : 19.1. Late Appasami Mudaliar executed a Will dated 21.10.1918 bequeathing his properties, thereby appointing his wife, Tmt. Kamalammal, as the Executrix. Though there is no reference to the properties as such in the Will, even according to the written statement of the defendants, it is admitted that the properties that were bequeathed as per the said Will are the one bearing Door No.17, Taylors Road, Kilpauk, Chennai-10 and the one bearing Door No.36, Hunter's Road, Vepery, Chennai-7. It is seen that the Will was probated in O.P. No.274 of 1919. By virtue of this Will and the probating of it, the properties that were bequeathed to the two brothers, viz. Thirunavukkarasu Mudaliar and Rathnasabapathy Mudaliar are in the nature of absolute properties. 19.2. The records in reference to O.P. No.274 of 1919 were called for. The said O.P. is a petition filed by K. Kamalammal for probating the Will dated 21.10.1918 executed by late Appasami Mudaliar who died on 4.12.1918. In the translated copy of the Will, late Appasami Mudaliar has stated as follows :- "As I am ill owing to abscess which has appeared on my back and as I have two sons, i.e., an elder son named Thirunavukkarasu Mudaliar, aged 18 years, a younger son named Rathnasabapathy Mudaliar, aged 7 years and a daughter named Radha Bai, my wife, Kamalammal shall, until my aforesaid sons attain majority, i.e. until the younger son attains the age of 21 years, exercise all powers as guardian, collect rent etc. and my aforesaid wife herself as plaintiff shall collect, through court, debts to be recovered, conduct family affairs properly and deliver on the 21st year of my aforesaid younger son, all my properties to the possession of both of my sons. She shall get my aforesaid daughter married to any suitable boy at her (marriageable) age and pay her Rs.2500-0-0." (emphasis added) 19.3. In the O.P., Kamalammal has stated that late Appasami Mudaliar left her, surviving the relations and she claimed the administration of his properties and credits as his wife and executrix. In the affidavit of Kamalammal dated ___th day of December, 1919 filed in support of the petition, she has stated that she had truly setforth in Annexure-A to the affidavit, all the property and credit, of which late Appasami Mudaliar possessed of or was entitled to at the time of his death. Apart from jewellery and other movable property, Item 3 of Annexure-A refers to six immovable properties of house and ground. It is pertinent to note that the preamble portion of the Will shows that late Appasami Mudaliar was the adopted son of Subbaraya Mudaliar. 19.4. There is also an Application 1361 of 1996 filed by R. Ramachandran, the first defendant herein, for the grant of a certified copy of the last Will. R. Ramachandran, in his affidavit, has stated as follows :- "I submit that I am the grandson of late Appasami Mudaliar. ..... 3. I state that subsequent to the death of my grandmother in the year 1994, the properties covered under the Will have been in enjoyment of my father, K. Rathnasabapathy Mudaliar and my uncle K. Thirunavukkarasu Mudaliar. The same was partitioned between the brothers under Document No. 1543 of 1951. Ever sine the date of the said partition, my father was in continuous enjoyment of the properties that fell to his share by virtue of the said partition. ....." 19.5. The two brothers have entered into a partition dated 2.7.1951 which is also admitted in the written statement of the defendants stating that by virtue of the said partition, Rathnasabapathy Mudaliar was put in possession of the properties, viz. Door No.17, Taylors Road, Kilpauk, Chennai-10 and Door No.36, Hunter's Road, Vepery, Chennai-7. In other words, the father of the plaintiffs and defendants 1, 2 and 3, Rathnasabapathy Mudaliar had taken the properties absolutely by virtue of the partition. Door No.17, Taylors Road, Kilpauk, Chennai-10 and Door No.36, Hunter's Road, Vepery, Chennai-7. In other words, the father of the plaintiffs and defendants 1, 2 and 3, Rathnasabapathy Mudaliar had taken the properties absolutely by virtue of the partition. Both these properties were sold by the father Rathnasabapathy Mudaliar as per the sale deeds dated 3.11.1961 (Ex.B.3) and 29.3.1973 (Ex.B.5), in which Rathnasabapathy Mudaliar has included the first defendant R. Ramachandran as a vendor for the sales. 19-B Partition Deed dated 2.7.1951 : 19.6. In the partition deed dated 2.7.1951, after referring to the bequeathing of the properties referred to in the partition deed itself and the probating of the Will, it has been referred specifically as follows :- "Whereas, since the death of their mother, the parties have been enjoying the properties absolutely in common till now. ..... Whereas, deeming it desirable to effect a partition between themselves, the parties have already effected a division amicably among themselves of all movable properties like jewels, furnitures, vessels etc. and are having separate mess for some time past and have also duly settled as between themselves, the amounts of rental collections from the properties upto date and there is no outstanding claim against them in any manner." While describing the division, it is stated as follows :- "The properties described in the Schedule 'A' have been allotted for the share of K. Thirunavukarasu Mudaliar, the party of the first part, and he shall enjoy the same absolutely and forever in his own right with full powers of ownership therein." Similarly, in reference to 'B' Schedule properties, which were allotted to K. Rathinasabapathy Mudaliar, it is stated as follows :- "The properties described in the Schedule 'B' have been allotted to the share of K. Rathinasabapathy Mudaliar, the party of the second part, and he shall enjoy the same absolutely and forever in his own right with full powers of ownership therein." (emphasis added) 19.7. The plank of the argument of the defendants/cross objectors is that since Rathnasabapathy Mudaliar had included the first defendant R. Ramchandran as a vendor for the sale of the two properties obtained by him in the partition, the properties were treated as joint family properties and had acquired the character of coparcenary property. They were sold by Rathnasabapathy Mudaliar under Exs.B.3 and B.5. In these sale deeds, the first defendant is also included as a vendor. They were sold by Rathnasabapathy Mudaliar under Exs.B.3 and B.5. In these sale deeds, the first defendant is also included as a vendor. 19-C Sale Deed dated 3.11.1961 : 19.8. The recitals in Ex.B.3 dated 3.11.1961 refer to the bequeathing of the properties in favour of Rathnasabapathy Mudaliar under the Will dated 21.10.1918 and that those properties were enjoyed by Rathnasabapathy Mudaliar absolutely. The recital is to the following effect:- "Whereas, the late Appasami Mudaliar, by his Will dated 21.10.1918, bequeathed the 'B' Schedule property among other properties absolutely and jointly to the first vendor (Rathnasabapathy Mudaliar) and K. Thirunavukkarasu Mudaliar, the brother of the first vendor (Rathnasabapathy Mudaliar). ..... Whereas, the said Kamalammal managed and administered the 'A' Schedule property among other properties until her death in 1928. Thereafter, the first vendor (Rathnasabapathy Mudaliar) and his brother the said Thirunavukkarasu Mudaliar were jointly in full and absolute possession thereof." Ex.B.3 further refers to the partition of the year 1951 and refers to Rathnasabapathy Mudaliar's remaining unemployed. In the latter portion, especially in paragraph 7, that the sale deed is executed by the first vendor in his individual capacity and as the father and guardian of the second vendor and also as manager of the joint family. 19-D Sale Deed dated 29.3.1973 : 19.9. Ex.B.5, sale deed dated 29.3.1973 executed by Rathnasabapathy Mudaliar and R. Ramachandran also refers to Rathnasabapathy Mudaliar's obtaining the property absolutely under the Will and the partitioning of the property in the year 151. It further says as follows :- "Whereas, the first vendor (Rathnasabapathy Mudaliar) is in undisturbed, undisputed and unobstructed continuous and independent enjoyment and possession of the Schedule mentioned 'B' properties." 19-E Ex.B.4 dt. 29.3.1973 and Ex.B.6 dt. 29.3.1973 : 19.10. The other documents which are crucial in this case are the purchase deeds in reference to the suit properties, viz. Ex.B.4 and B.6. By virtue of Ex.B.4, sale deed executed in favour of Rathinasabapathy Mudaliar, dated 9.3.1962, wherein he has been the sole purchaser, he has been conveyed absolutely, the property at Door No.49, Nalla Thambi Mudali Street, Triplicane, Chennai-5 ('B' Schedule property). Similarly, in Ex.B.6 dated 29.3.1973, Rathinasabapathy Mudaliar as purchaser, has purchased the property at Door No.19, South Canal Bank Road, Mandavelli, Chennai-28 absolutely in his name. Similarly, in Ex.B.6 dated 29.3.1973, Rathinasabapathy Mudaliar as purchaser, has purchased the property at Door No.19, South Canal Bank Road, Mandavelli, Chennai-28 absolutely in his name. Rathinasabapathy Mudaliar neither thought it necessary to include his son, the first defendant, nor describe himself as the manager of the joint family in the said purchase deed. The argument of the defendants/cross objectors is that though the properties were purchased in the name of Rathinasabapathy Mudaliar in his individual name, there is evidence to show that the consideration had flown from out of the sales under sale deeds, Ex.B.3 and Ex.B.5, wherein the first defendant was also shown as a vendor. The said argument carries no conviction if we consider the entire history of the case of the parties. 19-F Mortgage Deeds : 19.11. The defendants have filed a number of documents before this Court, most of which have been received as documentary evidence. A reference may be made to those documents at this stage itself. 19.12. In the mortgage deed dated 1.3.1972, Rathinasabapathy Mudaliar and the first defendant, describing themselves as constituting members of Hindu coparcenary, mortgaged 'B' Schedule property. The order of the Income Tax Appellate Tribunal dated 25.5.1979 holds that the suit properties belong to a Hindu Undivided Family. The mortgage deed dated 31.1979 executed by the wife of Rathinasabapathy Mudaliar, the first defendant and the second defendant in reference to 'B' Schedule property states that Rathinasabapathy Mudaliar died intestate and that the three of them have succeeded to his properties as his heirs. The mortgage deed dated 22.6.1981 executed by the wife of Rathinasabapathy Mudaliar and the second defendant in reference to 'B' Schedule property shows that Rathinasabapathy Mudaliar died intestate at Madras and that they are his sole surviving legal heirs. It is also mentioned in the said mortgage deed that the first defendant had released all his rights over the properties of the Joint Hindu Family consisting of himself, his mother Krishnaveniammal and his sister Swathanthira. Yet another mortgage deed dated 22.6.1981 executed by them in reference to 'B' Schedule property again states that Rathinasabapathy Mudaliar died intestate leaving them as his sole surviving legal heirs. In this deed also, they have mentioned that the first defendant had released all his rights over the properties of the Joint Hindu Family by Registered Document dated 15.12.1979. Yet another mortgage deed dated 22.6.1981 executed by them in reference to 'B' Schedule property again states that Rathinasabapathy Mudaliar died intestate leaving them as his sole surviving legal heirs. In this deed also, they have mentioned that the first defendant had released all his rights over the properties of the Joint Hindu Family by Registered Document dated 15.12.1979. There is also a mortgage deed dated 5.6.1992 executed by the wife of Rathinasabapathy Mudaliar and the second defendant wherein they say that Rathinasabapathy Mudaliar died intestate at Madras leaving behind them as his sole surviving legal heirs. 20. In the light of the above, the intention of the parties is crystal clear, to the following effect :- (1) As per the Will dated 21.10.1918, the two properties, viz. the one at Door No.17, Taylors Road, Kilpauk, Chennai-10 and the other at Door No.36, Hunter's Road, Vepery, Chennai-7 had been gifted to and were part of the immovable properties bequeathed under the Will absolutely to the two brothers and they enjoyed the same as tenants-in-common till a partition was effected in the year 1951. (2) In the partition dated 2.7.1981, they have taken the property separately and absolutely. (3) Therefore, the properties that were allotted to Rathinasabapathy Mudaliar are his absolute individual properties obtained by him in the partition and traceable to the Will executed by his father late Appasami Mudaliar. (4) Even in the recitals in Ex.B.3 and B.5, it is clearly stated that it is Rathinasabapathy Mudaliar who had been in enjoyment of the properties absolutely and the description that there is a joint family consisting of himself and his son R. Ramachandran, the first defendant, as rightly pointed out, is made only to satisfy the purchasers. (5) No inference could be drawn by the inclusion of the first defendant as one of the vendors in the sale deed that there is a blending of the property or that he had impressed this property as a coparcenary property. (6) The purchase of the suit properties were in the individual name of Rathnasabapathy Mudaliar absolutely. (7) Rathnasabapathy Mudaliar did not think it fit to alter the character of the property till his demise. (6) The purchase of the suit properties were in the individual name of Rathnasabapathy Mudaliar absolutely. (7) Rathnasabapathy Mudaliar did not think it fit to alter the character of the property till his demise. (8) The subsequent mortgage deeds described the suit properties as the properties of Rathinasabapathy Mudaliar who died intestate and they were succeeded to by Krishnaveniammal, the wife of late Rathinasabapathy Mudaliar and Swathanthira, the second defendant in the suit. (9) It is true that in the mortgage deed dated 1.3.1972 and the order of the Income Tax Appellate Tribunal, it is held that the suit properties belong to the Hindu Undivided Family of the deceased, viz. Rathinasabapathy Mudaliar. ORAL EVIDENCE 21. P.W.1, the husband of the plaintiff, has been examined, wherein he reiterated the pleadings in the plaint that the suit properties are the self-acquired properties of Rathnasabapathy Mudaliar and denied that they were purchased after the sale of the ancestral property. He has specifically stated that since the properties are the self-acquired properties of the grandfather of the first defendant, the first defendant had no right by birth. In the cross-examination, P.W.1 has stated that Rathnasabapathy Mudaliar was running a business of sale of electrical goods. He has further stated that Rathnasabapathy Mudaliar had told him that the properties were obtained only through the Will, that the said properties were purchased in the name of Rathnasabapathy Mudaliar and that he had income from several sources. He denied the suggestion that Rathnasabapathy Mudaliar had no other income excepting the income from the property. 22. On the side of the respondents, the second defendant alone was examined. In her chief-examination, she had stated that the properties at No.17, Taylors Road, Kilpauk and No.36, Hunter's Road, Vepery belonged to her father - In the cross-examination also, she has stated that the property belonged to her father and that therefore, she has got a share - It is pertinent to note that the second defendant, D.W.1 has not filed any written statement. 23. From the pleadings and the evidence, it is seen that late Appasami Mudaliar had adopted the son of Subbaraya Mudaliar and executed a Will dated 21.10.1989 bequeathing his properties to his two sons alone. 23. From the pleadings and the evidence, it is seen that late Appasami Mudaliar had adopted the son of Subbaraya Mudaliar and executed a Will dated 21.10.1989 bequeathing his properties to his two sons alone. The properties were individual properties of late Appasami Mudaliar and he did not treat his sons as members of his joint family and there is no recital in the Will as to the existence of it. The two brothers have been enjoying the properties as tenants-in-common and later on divided the same among themselves as per the document of the year 1951, the partition deed and have thereafter treated their shares of the properties as their separate properties. The controversy as to the nature of the properties arose only because of Exs.B.3 and B.5 where Rathnasabapathy Mudaliar sells the properties allotted to him by including his son, the first defendant in the sale deed, making it appear that there exists a joint family and a joint family property by virtue of his blending his individual property with the family property. The plaintiff has explained the inclusion of the first defendant in the sale deeds by stating that this was done because of the insistence of the purchasers to clear any possible cloud, doubt or question by any minor son later on. It is also stated that showing the properties as joint family properties is only for the purpose of certain tax benefits. But however, if there is no coparcenary or joint family and there was no joint family property and there was no existence of coparcenary, the same cannot be inferred and created for the purpose of the case. Therefore, it has to be seen whether Rathinasabapathy Mudaliar was a coparcenar and the property bequeathed to him is an ancestral property and whether he had blended this property as joint family property. 24. In this context, it is relevant to refer to the principles and the decisions on the subject. 25. Mulla's Principles of Hindu Law, Volume I, Chapter XII, under the heading 'Hindu Coparcenary' states as follows:- "Hindu Coparcery is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest for the joint or coparcenary property. The property, according to Hindu Law, may be divided into two classes, viz. joint family property and separate property. It includes only those persons who acquire by birth an interest for the joint or coparcenary property. The property, according to Hindu Law, may be divided into two classes, viz. joint family property and separate property. Joint family property may be divided according to the source from which it comes to (i) ancestral property and (ii) separate property of coparceners thrown into common coparcenary stock." Insofar as the case on hand is concerned, there is no evidence to show that there was an ancestral property and that Rathnasabapathy Mudaliar cannot be treated as a coparcener, similar to R. Ramachandran. On the very question of property obtained by a Will, the learned author says in paragraph 223 as follows :- "Property obtained by gift or will from paternal ancestor - where a Hindu, instead of allowing his self-acquired or separate property to go by descent, makes a gift of it to his son or bequeaths it to him by will, the question arises whether the said property is the separate property of the son or whether it is ancestral in the hands of the son as regards his son's male issue. This question had been answered in different ways by different High Courts, with the result that there was considerable diversity of judicial opinion. 26. The said question was recently considered by the Supreme Court in C.N. Arunachala Mudaliar vs. C.A. Muruganantha Mudaliar [A.I.R. 1953 S.C. 495]. In this case, the Supreme Court, after consideration of the text on the subject and the variant opinions of the High Courts, took the view that the question was primarily one of the intention of the donor or the testator to be gathered from the terms of the deed of gift or sale. The material question in such cases would be whether the grantor really wanted to make a gift of the property to his son or the apparent gift was only an integral part of the scheme to partition the same. There is no presumption that he intended the one or the other. 27. The Supreme Court, in the said judgment, held that when a father obtains the grandfather's property by way of gift, he receives it not because he is a son or has a legal right to such property, but because his father chose to bestow a favour on him which he could have bestowed on any other person as well. 27. The Supreme Court, in the said judgment, held that when a father obtains the grandfather's property by way of gift, he receives it not because he is a son or has a legal right to such property, but because his father chose to bestow a favour on him which he could have bestowed on any other person as well. The interest which he takes in such property must depend upon the will of the grantor. The property gifted by a father to his son cannot become ancestral property in the hands of the donee simply by reason of the fact that the donee got it from his father. When he makes a gift, he may provide either that the donee take it exclusively for himself or that the gift would be for the benefit of his branch of the family. Their lordships further held that the son can assert equal right with the father only when the grandfather's property is devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normally vest with the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his life time. On both these occasions, the grandfather's property comes to the father by virtue of the latter's right as a son or descendant of the former and consequently it becomes ancestral property in his hands. In the ancestral or grandfather's property in the hands of the property, the son has equal right with his father while in the self-acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominant interest in the same. The judgment of the Supreme Court in the above case set right the controversy and the difference of view on the question of the property got under a Will and the nature of coparcenary. This judgment squarely applies to the facts and circumstances of the case on hand. In our case, late Appasami Mudaliar had gifted his properties absolutely to Rathinasabapathy Mudaliar and his son, the first defendant in the suit, cannot assert an equal right with that of the father since it is not an ancestral property in the hands of the father. 28. In our case, late Appasami Mudaliar had gifted his properties absolutely to Rathinasabapathy Mudaliar and his son, the first defendant in the suit, cannot assert an equal right with that of the father since it is not an ancestral property in the hands of the father. 28. Mayne's Hindu Law and Usage, XII Edition at page 538, deals with the ancestral property and says that the term, in its technical sense, is applied to property which descends upon one person in such a manner that his male issue acquire certain rights in it as against him. According to the learned authority, all property which a man inherits from a direct male ancestor not exceeding three degrees higher than himself, is ancestral property, and is at once held by himself as coparcenary with his own male issue. The learned authority further says at page 544 as follows :- "The grandfather is at liberty to dispose of his property absolutely before his death, and any such disposition would be perfectly valid as against both his son and grandson. When he makes a gift or bequest to his son, he ordinarily intends that he should take it as a bounty. Otherwise, when a grandfather makes a gift of his self-acquired property to his son inter vivos, it should be open to a grandson in existence at the time of the gift, if the property is to be regarded as ancestral, to claim a partition of the property at once before the grandfather's death which would be a reductionad absurdum. In the absence of any intention expressed by him that the donee or legatee should take it on behalf of his family, it must be presumed that he intends that it should belong solely to the donee or legatee: for to, hold that he intends to be taken as ancestral means that he intends to give it not only to his son but to his son and grandson as joint owners." 29. The same question was posed in N.R. Raghavachariar's Hindu Law - Principles and Precedents, IX Edition at page 221 and answered as follows :- "Why should the father give a property to his son by gift or will if he does not want him to be in a better position that he would be in if the property comes to him by descent? If, on the other hand, he does not desire that his son should be in a different position than when he inherits the property, it is absolutely unnecessary for him to make a will and even if he makes a will, it would be perfectly open to him to say in explicit terms that his son should not have larger powers in respect of the property given." In this context, the judgment of the Supreme Court in Arunachala Mudaliar's case, cited supra, was referred to wherein it was held that there is no warrant for saying that according to the Mitakshara, an affectionate gift by the father of his self-acquired property to his son constitutes ipso facto ancestral property in the hands of the donee. If there are no clear words in the document of gift or will describing the kind of interest which the donee or legatee takes in the gift or will in the property given by the father, the question would be one of construction and the court will have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well known canons of construction. The Supreme Court, in that case, held that the testator intended that his sons as legatees under his will should take the properties bequeathed to them in absolute right as their own self-acquisitions without any right by birth to their sons and grandsons in such properties. 30. The learned author also referred to the decision in Commissioner of Income-tax vs. Periakaruppan Chettiar [1969 (71) I.T.R. 601 (Madras)], wherein it was held that where there is no indication in the case of a gift by the father to his son that he intended the donee to take the property as joint family property as between himself and his sons, the donee takes it without any right in the son to claim interest in it by birth. The same principle was followed in the decisions rendered in S. Parthasarathi vs. I.T. Commissioner [A.I.R. 1967 Madras 227] and Subramania Aiyar vs. Nalla Kavundan [A.I.R. 1926 Madras 634]. 31. The same principle was followed in the decisions rendered in S. Parthasarathi vs. I.T. Commissioner [A.I.R. 1967 Madras 227] and Subramania Aiyar vs. Nalla Kavundan [A.I.R. 1926 Madras 634]. 31. In Vairavan Chettiar, represented by Ramasamy Chettiar vs. Srinivasachariar [1921 (Vol.44) I.L.R. Madras Series 499], a Full Bench of the Madras High Court has held that there can be no coparcenary between the father and the sons as regards the self-acquired property over which the sons have no legal claim or enforceable rights. Their lordships observed in that case as follows :- "Coparcenary and survivorship imply the existence of co-ownership and of right of partition enforceable at law." Their lordships had referred to a decision rendered by the Privy Council in Sartaj Kuari vs. Deoraj Kuari [1888 I.L.R. (10) Allahabad 272 (P.C.)] wherein it was observed that the property in the paternal or ancestral estate acquired by birth under the Mitakshara law is so connected with the right to partition that it does not exist where there is no right to do it. Applying this principle to our case, it could be seen that Rathinasabapathy Mudaliar did not acquire any right of partition over the suit properties. Those properties were bequeathed to him by his father and therefore, there is no coparcenary property. 32. A Division Bench of the Patna High Court, in Srinath Tiweri vs. Ram Surat Devi [A.I.R. 1959 Patna 116], has held that unless there is an intention expressed by the grantor to the contrary, the sons taking the self-acquired property of their father under a will take it as tenants-in-common and not as joint tenants. Where there was no intention expressed by the testator that his sons were to take his properties as members of Hindu Mitakshara Joint Family and on the contrary, the operative portions of the will clearly indicated that the sons were to take them in equal shares and were to be the full, perfect and obsolute owners of their shares with all rights of transfer, it was held that there was clear expression of the intention of the father that his sons were to take the properties as tenants-in-common. This view of the Patna High Court also applies to the facts of the case on hand. 33. This view of the Patna High Court also applies to the facts of the case on hand. 33. In a recent decision in Satyaprema Manjunath Gowda vs. Controller of Estate Duty, Karnataka [ 1997 (10) S.C.C. 684 ], the Supreme Court has explained the concepts of coparcenary, survivorship and Hindu Undivided Family. Their lordships observed as follows:- "The Hindu joint family is purely a creature of law and it cannot be created by act of parties. ..... The joint family status being the result of birth, possession of joint family property is only an adjunct of the joint family and is not necessary for its constitution. ..... On the other hand, coparcenary is a narrower body than a joint family and consists of only those persons who have taken, by birth, an interest in the property of the holder, for the time being and who can enforce partition whenever they like. It commences with the ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees." Their lordships also held as follows :- "Hindu Undivided Family is a concept and coparcenary is not one and the same under Hindu law. But, for the purpose of taxation under the Act, as in other tax measures like the Income Tax Act, they are treated as one and the same. The primary meaning of the word "surviving" is to live beyond the life or extent of or to outlive; but it also has a secondary meaning, viz. to live after." After considering the expression 'survivorship', their lordships held that the word 'survivor' usually applies to the longest life of two or more persons and trustees and has been applied, in some cases, to the longest liver and joint tenants or legatees and to others having a joint interest in the property. It was further held that the shares in a coparcenary property change with the death or birth of other coparceners. However, in the case of survivorship, it is not the same incidence. Applying this principle to the case on hand, it has to be seen that Rathinasabapathy Mudaliar got the property by a Will not as member of a coparcenary and the property did not come to him as survivor of the coparcenary. He was enjoying the property as a tenant-in-common along with his brother. Applying this principle to the case on hand, it has to be seen that Rathinasabapathy Mudaliar got the property by a Will not as member of a coparcenary and the property did not come to him as survivor of the coparcenary. He was enjoying the property as a tenant-in-common along with his brother. Thereafter, the same was divided in a partition and the property obtained by him in the partition is not obtained on the basis of his being a member of the Hindu joint family, but as an equal brother as joint tenant. Applying the facts and the law on the subject, it has to be held that there was no coparcenary consisting of late Appasami Mudaliar and Rathinasabapathy Mudaliar and that the suit properties are the individual properties of Rathinasabapathy Mudaliar who died intestate. 34. In P. Periasamy etc. vs. P. Periathambi & Others [1996 (1) L.W. 21 (S.C.)], while re-affirming the view taken by a Full Bench of this Court in Vairavan Chettiar's case referred to above, followed by another decision rendered in Minor Medai Dalavoi R. Ranganatha Mudaliar vs. Kumaraswamy [A.I.R. 1959 Madras 253], it was held that after enactment of the Hindu Succession Act, 1956 and in particular, Section 19 thereof which says that if two or more heirs succeed to the property of an intestate, they take the property save as otherwise expressly provided for under the Act per capita and not per stirpes and as tenants-in-common and not as joint tenants. Their lordships observed as follows :- "In view of the interpretation put by the Full Bench of the Madras High Court that the sons in such a situation would get the self-acquired property of their father by inheritance having the status as tenants-in-common, they could not thus treat such properties in their hands, even though joint in enjoyment, as joint Hindu family properties." The said judgment, on facts, also applies to the facts of the case on hand. BLENDING 35. In Venkata Reddi vs. Lakshmama [A.I.R. 1963 S.C. 1601], while dealing with the blending of separate property with joint family property by a coparcener, their lordships of the Supreme Court held that the law relating to blending of separate property with joint family property is well settled. BLENDING 35. In Venkata Reddi vs. Lakshmama [A.I.R. 1963 S.C. 1601], while dealing with the blending of separate property with joint family property by a coparcener, their lordships of the Supreme Court held that the law relating to blending of separate property with joint family property is well settled. Property separate of self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation. 36. In G. Narayana Raju vs. G. Chamaraju [A.I.R. 1968 S.C.1276], it was held by the Supreme Court that it is a well settled doctrine of Hindu law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into the joint stock with the intention of abandoning all separate claims upto it. But the question whether the coparcener has done to or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred from acts which may have been done from kindness or affection. The important point to keep in mind is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. Such intention can be discovered only from his words or from his acts and conduct. Such intention can be discovered only from his words or from his acts and conduct. It is the intention that we must seek in every case, the acts and conduct being no more than evidence of the intention. 37. In Goli Eswariah vs. Gift Tax Commissioner [A.I.R. 1970 S.C. 1722], the Supreme Court held that the separate property of a Hindu coparcener ceases to be so and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property. The act is a unilateral act. In Mallesappa vs. Mallappa [A.I.R. 1961 S.C. 1268], it was held by the Supreme Court that where a member of a joint Hindu family blends his self-acquired property with the property of the joint family, either by bringing his self-acquired property into a joint family account, or by bringing the joint family property into his separate account, the effect is that all property so blended becomes a joint family property. This doctrine inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenery property and desires to blend his separate property with the coparcenery property. There can be no doubt that the conduct on which a plea of blending is based must clearly and unequivocally to show the intention of the owner of the separate property to convert his property into an item of joint family property. 38. In Neelakandan vs. Velayudhan [A.I.R. 1958 S.C. 832], their lordships of the Supreme Court have held that where there is no pre-existing right, mere recital of the document does not convey any interest. Following the said dictum, a learned Judge of this Court, in M.P.P. Jayagandhi Nadar & Co. vs. Arunachalam Pillai [ 1996 (I) M.L.J. 251 ], has held, following another decision of the Kerala High Court in Sarojini vs. Santha Trading Company [1969 K.L.T. 412], that a recital in confirmation of pre-existing rights in a person who had no such right in fact would not convey any right in the property to him. A mere recital that the property belongs to both the husband and the wife would not, therefore, convey any interest in the property of the wife to the husband. A mere recital that the property belongs to both the husband and the wife would not, therefore, convey any interest in the property of the wife to the husband. The character of self-acquired property cannot be held to have been altered into that of a joint family property by a mere recital. 39. In K.V. Narayanan vs. K.V. Ranganathan [A.I.R. 1976 S.C. 1717], the Supreme Court in reference to impressing the separate property with the character of joint family property, held that the property separate or self-acquired of a member of the joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by its owner into the common stock with the intention of abandoning his separate claim therein. But, the question whether a coparcener has done so or not is entirely a question of fact to be decided in the light of the all the circumstances of the case. As we have seen, in this case, Rathinasabapathy Mudaliar was neither a coparcener nor a member of the joint Hindu family so that he could have impressed his separate property with the character of joint family property. 40. In N.R. Raghavachari's Hindu Law VIII Edition, 1997, at page 213, the learned author has stated that from the mere fact that the father having self-acquired property allows his adult son to live with him or uses his income for his son's support, an inference of an intention on the part of the father to treat his self-acquired property as the family property cannot be drawn. 41. In Shyama Devi vs. Manju Shukla [ 1994 (6) S.C.C. 342 ], it was held that the Proviso to Section 6 comes into operation, if the deceased leaves behind any female relative specified in Class I of the Schedule to the Hindu Succession Act, 1956 or a male relative, specified in that Class, who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property. Then in that event, it shall devolve by intestate succession under the provisions of the Act and not by survivorship. Then in that event, it shall devolve by intestate succession under the provisions of the Act and not by survivorship. It was held that since the deceased in that case died leaving behind his widow the appellant and four daughters, who shall be deemed to be the family relatives specified in Class I of the Schedule to the Act, the proviso to Section 6 shall come into play and the interest of the deceased shall devolve according to the said proviso by way of intestate succession under the Act. 42. The above principles set out by the Supreme Court squarely apply to the facts of the case on hand. The father of the first defendant obtained the property through a Will. In other words, late Appasami Mudaliar who bequeathed the property, chose to bestow on him a favour on his own free will and he could have bestowed it on any other person as well. Therefore, the property in the hands of Rathinasabapathy Mudaliar cannot be treated as a coparcenary property so as to be treated as an ancestral property. 43. Section 6 of the Hindu Succession Act, 1956 provides for devolution of interest in a coparcenary property. This is an exception to the general succession provided for under the Act. One of the important conditions for the devolution as per Section 6 is that a male Hindu who died after the commencement of the Act should have had an interest in the Mitakshara coparcenary property. Then only the interest in the property shall devolve by survivorship upon the surviving members of the coparcenary. This exception is further subject to the condition that there should not be any surviving female relations specified in Class I, in which case the succession will be on the basis of intestate succession and not by survivorship. Explanation I to Section 6 makes the position clear that the interest of a Hindu Mitakshara coparcenary shall be deemed to the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Applying this principle to the case on hand, devolution to the property cannot be by survivorship. 44. Applying this principle to the case on hand, devolution to the property cannot be by survivorship. 44. Looking into the clear provision of law and the text on this subject, it is absolutely clear that the properties are the individual properties of Rathinasabapathy Mudaliar and he having died intestate in the year 1974, his daughters and sons are equally entitled to a share as per the Hindu Succession Act. Therefore, there is no infirmity in the finding of the learned Subordinate Judge that the plaintiff is entitled to a partition of one-fourth share in the suit properties. 45. Further, it is also to be seen that Section 23 of the Hindu Succession Act bars the claim of a Class I heir for partition of a dwelling house until the male heir chose to divide the respective shares thereon. In this case, 'A' Schedule property is a dwelling house. It is true that on the date of filing of the suit, i.e. 24.4.1998 the first defendant was dwelling in the said house. However, it could be seen from the additional documents filed by the cross objector that in the mortgage deeds dated 22.6.1981 and 5.6.1992, a reference is made to the following effect :- "Whereas, the said R. Ramachandran (first defendant) released all his rights over all the properties of the joint Hindu family consisting of himself, his mother Krishnaveniammal and his sister R. Swathantra in favour of his mother Krishnaveniammal (the first Mortgagor herein) and his sister R. Swathantra (the second Mortgagor herein) under release deed dated 15th December, 1979 registered as Document No.185 of 1979 at the Sub-Registrar's Office, Triplicane. Whereas, on account of the said release by the said R. Ramachandran, the Mortgagors herein became absolutely entitled to the Schedule mentioned property as well as the property at No.19, Canal Bank Road, Mandavellipakkam, Madras-600 028 and whereas the Mortgagors have been in absolute possession and enjoyment of the Schedule mentioned property." From the above, it could be seen that the first defendant had already released his right over the 'A' Schedule property in favour of his mother, Krishnaveniammal and his sister R. Swathantra, the second defendant in the suit. Therefore, on the date of the filing of the suit, the first defendant had relinquished his right over the said property and hence, the suit for partition cannot be barred by Section 23 of the Hindu Succession Act. 46. Therefore, on the date of the filing of the suit, the first defendant had relinquished his right over the said property and hence, the suit for partition cannot be barred by Section 23 of the Hindu Succession Act. 46. That apart, it could be seen that pending the suit, the first defendant died on 30.10.2003 and the legal heirs of the first defendant, viz. Defendants 4 to 6, were added as his legal representatives in the suit and therefore, the trial court ought to have taken note of the amended plaint filed and also the subsequent event as to the demise of the first defendant. Notwithstanding this admitted fact of the death of the first defendant, the learned Subordinate Judge has chosen to decline the relief to the plaintiff on the ground of the bar under Section 23 of the Hindu Succession Act. The learned Judge has failed to take note of the position of law that the right of a person to claim partition arises as soon as the male heir dies and since the first defendant died, leaving behind only his female heirs, he having no male issues, the plaintiff's right to claim partition in respect of the said property has opened up immediately after the death of the first defendant on 30.10.2000 during the course of the trial of the suit and on his relinquishing his right in respect of the said property on his own, as per the registered release deed, as admitted by the defendants themselves by Document No.185 of 1979 dated 15.12.1979 at the Sub Registrar's Office, Triplicane. ADMISSIBILITY OF THE DOCUMENTS FILED BY DEFENDANTS 47. The first respondent in the appeal has filed an application, C.M.P. No.10477 of 2003 under Order 41, Rule 27 and Section 151 of the Code of Civil Procedure seeking to permit her to produce the documents as set out in the list which are as follows :- ------------------------------------------------------------ Sl. Dated Parties to the Documents Remarks No. ------------------------------------------------------------ 1. 11.8.1966 Letter by K.Rathinasabapathy to the Commissioner, Corporation of Madras (with plan) Original 2. 1.3.1972 Mortgage Deed executed by K.Rathinasabapathy & Rama- -chandran to T.Vajravelu Original 3. 30.11.1977 General Power of Attorney executed by Smt. Krishnaveni Ammal & another in favour of M.G.L. Doss Original 4. 25.5.1979 Certified copy of Income Tax Certified Appellate Tribunal, Madras Copy 5. 11.8.1966 Letter by K.Rathinasabapathy to the Commissioner, Corporation of Madras (with plan) Original 2. 1.3.1972 Mortgage Deed executed by K.Rathinasabapathy & Rama- -chandran to T.Vajravelu Original 3. 30.11.1977 General Power of Attorney executed by Smt. Krishnaveni Ammal & another in favour of M.G.L. Doss Original 4. 25.5.1979 Certified copy of Income Tax Certified Appellate Tribunal, Madras Copy 5. 31.10.1979 Mortgage Deed executed by Smt. Krishnaveni Ammal & another in favour of M.G.L. Doss Original 6. 15.12.1979 Deed of Assignment of Mortgage executed by Vajravelu in favour of M.G.L. Doss Original 7. 15.12.1979 Receipt by Vajravelu Original 8. 15.12.1979 Receipt by Vajravelu Original 9. 22.6.1981 Mortgage deed executed by Krishnaveni & another to K.Natarajan along with Receipt by K.Natarajan dated 5.6.1992 Original 10. 22.6.1981 Mortgage deed executed by Krishnaveni & another in favour of N. Ravi along with Receipt by N. Ravi dated 5.6.1992 Original 11. 6.1.1984 Cancellation of General Power of Attorney by Krishnaveni & another Original 12. 30.4.1985 Order passed by Deputy Official Certified Assignee in I.P. No.8/84 Copy 13. 5.6.1992 Receipt executed by K. Natarajan Original 14. 5.6.1992 Receipt executed by N. Ravi Original 15. 5.6.1992 Mortgage deed executed by Krishnaveni & another in favour of T. Sundari Original 16. 5.6.1992 Mortgage deed executed by Krishnaveni & another in favour of N. Kumar Original 17. 13.8.1996 Receipt by T. Sundari Original 18. 13.8.1996 Receipt by N. Kumar Original 19. 1.2.2001 Letter executed by the first respondent to Triplicane Permanent Fund Ltd. Copy 20. 2.2.2001 Pro-note executed by the first respondent to M. Jayaram Copy 21. 2.2.2001 Mortgage deed executed by the Certified first respondent to M. Jayaram Copy 22. 22.2.2001 Equitable Mortgage executed by first respondent to M. Jayaram Copy 23. 4.3.2002 Mortgage deed executed by the first respondent & another to Certified Ramabai Copy 24. 16.3.2002 Pro-note executed by the first respondent to Smt.Ramabai Copy 25.7.7.2002 Pro-note executed by the first respondent to Smt.Ramabai Copy 26.16.1.2003 Pro-note executed by the first respondent to Smt.Ramabai Copy 27. - Plan showing the proposed Regularisation of the existing building at Door No.19, Anandam Colony, Mandaveli, Chennai-28. Original 48. Of the above documents, the exhibits under Sl. Nos.20 to 27 are documents which have come into existence during the pendency of the suit, the plaint having been filed on 24.4.1998. - Plan showing the proposed Regularisation of the existing building at Door No.19, Anandam Colony, Mandaveli, Chennai-28. Original 48. Of the above documents, the exhibits under Sl. Nos.20 to 27 are documents which have come into existence during the pendency of the suit, the plaint having been filed on 24.4.1998. In reference to the other documents, reliance was made only on the certified copy of the Income Tax Appellate Tribunal's order dated 25.5.1979 (Document Sl. No.4). It is argued on behalf of the respondent that the order passed by the Income Tax Appellate Tribunal would bar the plaintiff seeking the relief since it would operate as res judicata on the issue raised and hence the plaintiff is estopped from claiming any right. All the documents have come into existence subsequent to the filing of the suit and the defendants have not established that there is any relevance to these documents which have come into existence subsequent to the filing of the suit. Hence, those documents which are under Item Nos.19 to 27 cannot be admitted as additional evidence and the remaining documents are admitted as additional documents and marked as exhibits on the side of the defendants. 49. It has to pointed out that the document in question is an order passed in reference to the Estate Duty of Rathinasabapathy Mudaliar. In that order, it is seen that though the Controller of Estate Duty had held that the properties belonged to the deceased Rathinasabapathy Mudaliar exclusively and hence passed on his death to his heirs and duty payable thereon, an appeal was preferred and the Appellate Tribunal reversed that finding and held that the properties in question belonged to the Hindu Undivided Family, of which the deceased was a Kartha and on the death of the deceased, only half share therein, to which he would have been entitled to if partition had taken place, has passed on under Section 7 of the Estate Duty Act. The plaintiff is not a party to this order and the finding of the Tribunal is not binding on this Court. As seen and discussed earlier, Rathinasabapathy Mudaliar did not acquire the properties by virtue of his being a member of a Hindu Undivided Family. 50. Similarly, the Mortgage Deed executed by Rathinasabapathy Mudaliar on 1.3.1972 (Document Sl. The plaintiff is not a party to this order and the finding of the Tribunal is not binding on this Court. As seen and discussed earlier, Rathinasabapathy Mudaliar did not acquire the properties by virtue of his being a member of a Hindu Undivided Family. 50. Similarly, the Mortgage Deed executed by Rathinasabapathy Mudaliar on 1.3.1972 (Document Sl. No.2), including the first defendant has a party mortgagor and describing him as constituting a member of the Hindu coparcenary would not create a joint family unless there is a pre-existing right in favour of the first defendant. 51. The conduct of the parties in this case is also relevant. The plaintiff is the sister of the first defendant and she had been kept away from her right of a share in her father's properties all these years. The respondents have refused to co-operate even with the Advocate Commissioner appointed by this Court and they have shown NIL return of the earnings from the 40 rooms of the Mansion at Triplicane, the 'B' Schedule property herein. The report of the Advocate Commissioner though objection to the same has been raised, has clearly highlighted as to how the first defendant has deliberately created documents and also made arrangements to deprive every right to the plaintiff in the suit property. 52. For all the above reasons, the judgment and decree of the Subordinate Judge insofar as it negatives the claim of the plaintiff in respect of the 'A' Schedule property is set aside and the appeal filed by the appellate is allowed. The Cross Objection filed by the Cross Objectors is dismissed. No costs. Consequently, C.M.P. No.10477 of 2003 is ordered as indicated in paragraph 48 of this judgment. C.M.P. Nos.1026 and 4906 of 2003 in the appeal and C.M.P.10324 of 2003 in the Cross Objection are closed. Per Mr.K.Govindarajan, J. The above appeal is preferred by the plaintiff having aggrieved by the judgment and decree of the trial court rejecting the relief sought for in the suit with respect to plaint 'A' schedule property, dwelling house. 2. The plaintiff is the sister of defendants 1 to 3. 4th defendant is the wife of 1st defendant, who is the brother of the plaintiff. Defendants 5 and 6 are daughters of 1st defendant. The 2nd defendant is the unmarried daughter of one Rathina Sabapathy and sister of the plaintiff and defendants 1 and 2. 2. The plaintiff is the sister of defendants 1 to 3. 4th defendant is the wife of 1st defendant, who is the brother of the plaintiff. Defendants 5 and 6 are daughters of 1st defendant. The 2nd defendant is the unmarried daughter of one Rathina Sabapathy and sister of the plaintiff and defendants 1 and 2. The appellant/plaintiff filed a suit in O.S.No.3053/1998, on the file of the 7th Addl. City Civil Court, Chennai for partition of the suit properties, mentioned as plaint 'A' and 'B' Schedules, into 4 equal shares and allot one such share to her. She filed the suit stating that the suit properties are the absolute properties of Rathina Sabapathy, her father who died leaving the appellant/plaintiff and defendants 1 to 3 and their mother Krishnaveniammal as his heirs. Krishnaveniammal also died in 1994. Pending suit, 1st defendant also died leaving the 4th defendant, his wife and his daughters 5 and 6. On the basis of the above said pleading, the plaintiff has come forward with the said suit. 3. The 1st defendant filed a written statement stating that the grandfather, Appasami Mudaliar executed a registered will dated 21.10.1918 bequeathing the properties in favour of his sons. It is also stated that the grandmother Mrs.Kamalammal was appointed as executrix of the will. The same was probated in O.P.No.274/1919. Subsequently, Rathinasabapathy Mudaliar and his brother Thirunavukarasu Mudaliar executed a partition deed dated 2.7.1951, marked as Ex.B1. Rathinasapabathy Mudaliar was put into possession of the properties at No.17, Tailors Road, Kilpauk, Madras and No.36, Hunders Road, Vepery, Madras. It is specifically stated by the 1st defendant that the said ancestral property at No.17 Tailors Road, Kilpauk was sold in November 1961 on his behalf and on behalf of the 1st defendant by Rathinasabapathi Mudaliar and subsequently his father purchased the 'B' schedule property by virtue of a sale deed dated 9.3.1962 utilising the sale consideration obtained by selling the property at No.17 Tailors Road, Kilpauk, Madras. It is also stated that the ancestral property at No.36, Hunders Road, Vepery, Madras was sold by his father on 29.3.1973 on his behalf and also on behalf of the 1st defendant, and the 'A' schedule property was purchased on the same day on 29.3.1973 from out of the said sale consideration. The 1st defendant denied that the suit properties got by Rathinasabapathy Mudaliar are self-acquired properties. The 1st defendant denied that the suit properties got by Rathinasabapathy Mudaliar are self-acquired properties. The other averments need not be narrated as they are not relevant for the purpose of disposal of the above appeal. 4. Defendants 2, 4 and 6 adopted the written statement of the 1st defendant. 3rd defendant remained absent and set ex-parte. 5. The trial court framed only two issues, namely, (1) Whether the plaintiff is entitled for partition; and (2) To what relief the plaintiff is entitled? 6.While deciding the 1st issue, the trial court found that the 'B' schedule property is the absolute property of Rathinasabapathy Mudaliar and so the plaintiff is entitled to 1/4th share as she claimed. With respect to 'A' schedule property, applying Sec.23 of the Hindu Succession Act, 1956, hereinafter called 'the Act', the trial court rejected the suit holding that on the date of the suit, the 1st defendant was alive and so the plaintiff cannot sustain the suit. The said finding was given by the trial court though the 1st defendant died pending suit. 7. The plaintiff having aggrieved by the rejection of the suit with respect to 'A' schedule property, preferred an Appeal in A.S.69/2003. Defendants 2 and 5 filed the Cross Objection, questioning the decree granting partition with respect to 'B' schedule property. 8. The above appeal and Cross Objection were posted before the Division Bench consisting P.Shanmugam, J., and R.Banumathi, J. P.Shanmugam, J., in his separate judgment, set aside the judgment and decree of the trial court with respect to 'A' schedule property and thereby allowed the appeal, dismissing the Cross Objection. R.Banumathi, J., in her separate judgment allowed the Cross Objection holding that the plaintiff is entitled to 1/8th share alone in both the properties. Hence, by an order dated 15.3.2004 My Lord, The Hon'ble The Chief Justice posted the above appeal before me for consideration. 9. Learned counsel for the appellant/plaintiff submitted that the right got by Rathinasabapathi from his father Appasami under the will cannot be construed as a coparcenary properties as alleged by the defendants. Hence, by an order dated 15.3.2004 My Lord, The Hon'ble The Chief Justice posted the above appeal before me for consideration. 9. Learned counsel for the appellant/plaintiff submitted that the right got by Rathinasabapathi from his father Appasami under the will cannot be construed as a coparcenary properties as alleged by the defendants. Even assuming that the suit properties are purchased from out of the sale proceeds of the properties got under the will and partition effected between Rathinasabapathi and his brother Thirunavukarasu, the suit properties have to be considered only as absolute properties of Rathinasabapathi Mudaliar and not as coparcenary properties so as to invoke Sec.29A of the Act. According to him, since they are the absolute/self-acquired properties of Rathinasabapathi, the heirs of Rathinasabapathi are entitled to equal shares as claimed by the appellant/plaintiff. According to him, merely because in the documents, the 1st defendant has been shown as also a vendor, it cannot be said that the character of the properties had changed. With respect to the additional documents, as filed by the defendants, pending appeal, learned counsel submitted that the said documents cannot be relied on, as no reason whatsoever is given as to why such documents were not filed, pending suit. 10. In reply to the said argument, learned counsel for the respondents submitted that under the will there was no devolution of estate on the sons and so it cannot be said that the rights were transferred pursuant to the will executed in favour of Rathinasabapathi and his brother Thirunavukarasu. According to him, since the estate is not devolved pursuant to the will, it cannot be said that Rathinasabapathi got the properties absolutely so as to enable the appellant/plaintiff to treat them as self-acquired properties of Rathinasabapathi. Since Rathinasabapathi inherited the properties from his father, they have to be treated as coparcenary properties and Rathinasabapathi also has treated the said properties as joint family properties and so he has treated the 1st defendant also as one of the vendors in the sales. With respect to 'A' schedule property, learned counsel submitted that the relief can be granted only taking into consideration the facts available on the date of the suit and so the suit with respect to 'A' schedule property which is a dwelling house cannot be sustained in view of the fact that on the date of the suit the 1st defendant/Ramachandran was alive. He further submitted that though he died, in view of the fact that the 2nd defendant is also alive, the plaintiff cannot sustain the suit as the 2nd defendant has to be treated as a coparcener equal to son, in view of Sec.29A of the Act. Such submission was made on the basis that during the lifetime of the 2nd defendant, the plaintiff cannot sustain a suit for partition with respect to dwelling house, viz., 'A' schedule property. 11. On the basis of the above said pleadings and submissions, the following points arise for consideration in the above appeal:- (1)Whether the properties in the hands of Rathinasabapathi are the ancestral properties as claimed by the defendants or the self-acquired properties as claimed by the plaintiff? (2) Whether the 2nd defendant is entitled to claim right under Sec.29A of the Act? (3)Whether the plaintiff can sustain the suit for partition of 'A' schedule property, dwelling house during the lifetime of 1st and 2nd defendants? 12. The relationship between the parties are not in dispute. The fact that the 2nd defendant is a spinster is also not in dispute. The 1st defendant was alive on the date of the suit and died subsequently on 30.10.2000 pending Trial is also not in dispute. Even before filing the suit, the plaintiff's mother Krishnaveniammal died in 1994 and Rathinasabapathi also died on 18.7.1974. 13. Even according to the respondents, Appasami Mudaliar, the grandfather of the plaintiff and 1st defendant executed a registered will dated 21.10.1918 (which was not marked), devolving the properties, as stated above. Though in the written statement it is admitted to state as to whom the properties were bequeathed, it is specifically mentioned that under the will dated 21.10.1918 as probated in O.P.No.274/1919, the properties were bequeathed in favaour of Rathinasabapathi and Thirunavukarasu Mudaliar. Though no reference to the particular property under the said will was made, according to written statement, the properties bearing No.17, Tailors Road, Kilpauk and No.36, Hunders Road, Veperi, Chennai were bequeathed under the said will. Though no reference to the particular property under the said will was made, according to written statement, the properties bearing No.17, Tailors Road, Kilpauk and No.36, Hunders Road, Veperi, Chennai were bequeathed under the said will. The translated copy of the will which was available before the learned Judges, by calling for the records, reads as follows:- "As I am ill owing to an abscess which has appeared on my back and as I have two sons, i.e., an elder son named Tirunavukarasu Mudaliar aged 7 years and a daughter named Radhabai, my wife Kamalammal shall, until my aforesaid sons attain majority, that is, until the younger son attains the age of 21 years, exercise all powers as guardian, collect rent etc., and my aforesaid wife herself as plaintiff shall collect through court debts etc., to be recovered, conduct family affairs properly and deliver the 21st year of my aforesaid younger son Rathnasabapathi Mudaliar, all my properties to the possession of both of my sons. She shall get my aforesaid daughter married to any suitable boy at her (marriagebale) age and pay her Rupees 2500-0-0. After my wife may deliver the property to the sons - if she be willing to reside with them, alright - if she be unwilling to reside she shall receive from the sons Rupees 50-0-0 per mensem. To this effect is the will written and left with my consent." No material is placed before me, either oral or documentary, to show the character of the properties in the hands of Appasami Mudaliar. From the will, we are able to see that the said Appasami Mudaliar was having two sons, one daughter and his wife as his heirs. To exclude his daughter and his wife from inheriting the properties, the said Appasami Mudaliar executed a will appointing his wife kamalammal as executrix. In the absence of any evidence contra, we have to proceed that the properties of Appasami Mudaliar are his absolute properties. Though learned counsel for the respondents submitted that pursuant to the will, no right was transferred in favour of Rathinasabapathi and Thirunavukarasu with respect to the properties of Appasami Mudaliar, such a submission is contrary to the statements made in the written statement of the 1st defendant, which was adopted by the 2nd defendant also. In the written statement it is specifically stated that the properties were devolved under the said will. In the written statement it is specifically stated that the properties were devolved under the said will. Apart from the same, we can test whether Rathinasabapathi and Thirunavukarasu had got any right in the properties under the will by referring Ex.B1 partition deed entered into between Rathinasabapathi and Thirunavukarasu. In the said document, while tracing out their title they referred only to the will stating that Appasami Mudaliar, the father bequeathed his properties and they have been enjoying the properties absolutely in common and so the learned counsel for the respondents cannot be allowed to say that no property was bequeathed or no right passed on to Rathinasabapathi and Thirunavukarasu under the said will dated 21.10.1918. Their joint possession after the death of Appasami till partition has to be construed in the capacity as tenants-in-common. So the said properties cannot be construed as ancestral properties in the hands of Rathinasabapathi as claimed by the defendants. 14. The above said view of mine is supported by the recitals in Ex.B1, partition deed, executed by Rathinasabapathi and Tirunavukarasu. It is relevant to mention here that all the parties are tracing out the title mainly through this document with respect to the properties mentioned therein. In the said document, it is specifically stated as follows:- "Whereas Appaswami Mudaliar father of the parties hereto died on the 4th day of December 1918 bequeathing his properties ...... Whereas since the death of their mother the parties hereto have been enjoying the properties absolutely till now in common." "The properties described in the schedule 'A' hereto of the value of Rs.45,000/- (Rupees forty five thousand only) have been allotted to as and for the share of Thirunavukarasu Mudaliar the party of the first part and he shall enjoy the same absolutely and for ever in his own right with full powers of ... ...." The same recital is also mentioned with respect to the right of Rathinasabapathi Mudaliar. Rathinasabapathi Mudaliar was allotted 'B' schedule properties as mentioned under the said document. 15. The said 'B' schedule properties were sold by Rathinasabapathi Mudaliar, and purchased the suit properties. ...." The same recital is also mentioned with respect to the right of Rathinasabapathi Mudaliar. Rathinasabapathi Mudaliar was allotted 'B' schedule properties as mentioned under the said document. 15. The said 'B' schedule properties were sold by Rathinasabapathi Mudaliar, and purchased the suit properties. I am not going into the question whether the suit properties were purchased from out of the sale consideration got by selling the 'B' schedule properties under Ex.B1, as the learned counsel on both sides proceeded with the issue only as if the suit properties were purchased from the said sale consideration. 16. Learned counsel for the respondents submitted that the suit properties are ancestral properties and so the documents, namely, the sale deeds under Exs.B3 and B5 were executed by both Rathinasabapathi Mudaliar and Ramachandran. He also submitted that the partition deed Ex.B1 also mentions that they have executed the documents not only on behalf of Tirunavukarasu and Rathinasabapathi, but as a guardian of the respective son. First of all, the said submission cannot be accepted for want of pleadings. The defendants have come forward with the only plea that the properties in the hands of Rathinasabapathi, are his ancestral properties. It is not the case of the defendants that they are the joint family properties. No where it is pleaded that Rathinasabapathi had treated the properties as joint family properties by throwing the same into the hatchpot of joint family. For want of such pleading, the said submission of the learned counsel for the respondents has to be rejected. Moreover, even though in the partition deed Exs.B1, B3 and B5, the 1st defendant also has been included as one of the vendors, it is specifically stated in the partition deed that Appasami Mudaliar bequeathed the properties under the will and so they shall enjoy the properties in their own right with full power of ownership. Even under Exs.B3 and B5 it is specifically stated that Appasami Mudaliar left behind him a will and testament by which he bequeathed all his properties to his two sons absolutely. It is also stated that Tirunavukarasu Mudaliar, after the partition, was in undisturbed, undisputed and unobstructed continuance and independent enjoyment and possession of the property. Even under Exs.B3 and B5 it is specifically stated that Appasami Mudaliar left behind him a will and testament by which he bequeathed all his properties to his two sons absolutely. It is also stated that Tirunavukarasu Mudaliar, after the partition, was in undisturbed, undisputed and unobstructed continuance and independent enjoyment and possession of the property. Though learned counsel for the respondents relied on certain recitals mentioned in the document to the effect that the said sale was effected as a Manager of the joint family and also for the benefit of the joint family, in the absence of any pleading to the effect that Rathninasabapathi had thrown his absolute right in the properties into the hatchpot of Hindu joint family, the recitals in the documents cannot be relied on as evidence to establish the same. Since it is not the case of the defendants that though they are the self-acquired properties of Rathninasabapathi, they have been put into the hotchpot of the joint family and thereby they are entitled to the share on that basis, the recitals in the document cannot have any use or help to establish their case. As rightly submitted by the learned counsel for the appellant/plaintiff, on the basis of evidence of the plaintiff, the 1st defendant was included in the document as one of the vendors only to satisfy the vendees and it cannot be construed as if certain rights had been given to the 1st defendant in the properties mentioned therein. When this court is able to come to the conclusion that the properties are the self-acquired properties or absolute properties of Rathinasabapathi Mudaliar, in the absence of pleading and evidence, the 1st defendant cannot claim that he was given right in the properties as a son of Rathinasabapathi and member of a joint family as he was not having any pre-existing right . It is also relevant to mention here that under Exs.B4 and B6, Rathinasabapathi Mdualiar purchased suit 'A' and 'B' schedule properties only in his name and the 1st defendant has not been included in the document as one of the purchasers. 17. It is also relevant to mention here that under Exs.B4 and B6, Rathinasabapathi Mdualiar purchased suit 'A' and 'B' schedule properties only in his name and the 1st defendant has not been included in the document as one of the purchasers. 17. As held by the learned Judge of this Court in the decision in Jayagandhi Nadar v. Arunachalam Pillai, (1996)1 M.L.J. 251 , when there is no pre-existing right in favour of his son with respect to the property, merely because son joined in the subsequent deed, it is not sufficient to show father intended to waive his right over his self-acquisition. In the said decision, it is further held as follows:- "What is the effect of the statements in Exs.B1 and B2 will have to be considered. Those documents are mortgage deeds executed by the first respondent in which the second respondent is also made a party. P.W.1 has spoken about the circumstances under which his son also was made a party. According to him, the creditor insisted that his son also should be made a party to the document. In fact, there is a statement in both the documents that the property was purchased by the first respondent in his own name. It is thereafter there is a statement that both the executants are entitled to the property. According to him, the creditor insisted that his son also should be made a party to the document. In fact, there is a statement in both the documents that the property was purchased by the first respondent in his own name. It is thereafter there is a statement that both the executants are entitled to the property. In Neelakantan Damodaran Namboodri and another v. Velayudham Pillai Narayanan Pillai and another, (1958) 1 M.L.J. (S.C.) 1 : A.I.R. 1958 S.C. 832 : 1958 S.C.A. 962 : 1958 S.C.J. 1 : 1958 S.C.R. 1 : (1958) 1 An W.R. (S.C.) 1 : (1957)32 I.T.R. 615, it was held thus: "Where it is stated in deed of release that, by reason of sarvaswadana marriage, the appellants were entitled to all movable and immovable properties belonging to Illom and therefore the executant was executing the release deed conferring all the rights and claims they had obtained over the Illom pro-properties by the sarvaswadanam form of marriage, the document, in terms confirms the pre-existing rights of the appellants and where hey had no pre-existing rights, the document did not convey any interest to them." The same was followed by the Kerala High Court in the decision reported in Sarojini v. Santha Trading Company and others, 1969 K.L.T. 412 and it was held thus: "A recital in confirmation of pre-existing rights in a person, who had no such right in fact, would not convey any right in the property to him. A mere recital that the property belongs to both the husband and the wife will not, therefore, convey any interest in the property of the wife to the husband." In view of the said proposition of law, unless the second respondent shows that he had also pre-existing right in the property purchased under Ex.A1, the mere recital in Exs.B1 and B2 that he is also a co-owner of the property along with his father will not convey any right on him. 11. The only other method by which the second respondent can claim any right over the property is by proving that the property was thrown into the common hotchpot by the first respondent. The decree-holder has no such case. His only case is that the property is joint family property. Ex.A1 disproves the same. 12. 11. The only other method by which the second respondent can claim any right over the property is by proving that the property was thrown into the common hotchpot by the first respondent. The decree-holder has no such case. His only case is that the property is joint family property. Ex.A1 disproves the same. 12. In N.R.Raghavachariar's Hindu Law – Eighth Edition, 1987, at page 213, the learned Author has summarised the law regarding the circumstances under which a separate property can be treated as a family property, after taking into consideration the various decisions on that point. The relevant portions read thus: "It is an essential postulate in regard to blending that what is blended is a beneficial asset. ... No registered document is necessary for blending. ..No formalities whatsoever are required for impressing the character of joint family property on the self-acquisition. A clear expression of intention to impress that character in whatever way it is expressed, such as, for instance, a statement in a deposition or an affidavit or by conduct would be sufficient. ...Such blending is always in favour of all the coparceners and joint family property and is not restricted to some of them. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights. ..Such intention cannot be inferred from the physical mixing of the self-acquisition with joint family property or from the other members being allowed to use the property jointly with the acquirer or from their utilising the income therefrom out of generosity or kindness of the holder, he not being bound to support them or from failure to maintain separate accounts. An act of generosity or kindness cannot be regarded as an admission of a legal obligation . The mere fact that the acquisitions were not separately entered by the coparcener in his account books or that no separate account of the earnings from those properties was maintained by him cannot rob the properties of their character of self-acquired property. So also the mere fact that some amount of joint family funds was used for discharge of the debts of the acquirer is also of no consequence. So also the mere fact that some amount of joint family funds was used for discharge of the debts of the acquirer is also of no consequence. ...From the mere fact that a father having self-acquired property allows his adult son to live with him or used its income for the son's support (The mere fact that the sons are allowed by the father to give him some help in his own business does not make it joint family business), an inference of intention on the part of the father to treat his self-acquired family property cannot be drawn. ...An intention to throw the separate property into the common stock and the waive all separate rights in respect thereof, must be clearly established and will not be inferred from the owner allowing joint use of the property to the other co-parceners merely from kindness or affection .... starting that mere fact that a member included his own property with joint family property in a mortgage document executed by him for raising funds for the family does not establish that he treated his own property as joint family property holding that mere mixing of separate property with joint family property without the intention to treat the separate property as joint family property is not sufficient. Such intention cannot be inferred merely dealing with the property as joint family property is not sufficient. ...In order to convert separate property into joint family property the intention of the acquirer to abandon the separate claim must be established but such abandonment cannot be inferred from the mere fact that other members of the family were allowed to use the property jointly with himself or that the income of the separate property was utilised out of generosity to support or the mere failure to maintain separate accounts. Nor will such an intention be inferred where the coparcener allows joint possession and enjoyment of his separate property, not knowing, owing to the uncertainty of judicial opinion on the matter, that the property in question is one, in which the other members cannot claim any interest. Nor will such an intention be inferred where the coparcener allows joint possession and enjoyment of his separate property, not knowing, owing to the uncertainty of judicial opinion on the matter, that the property in question is one, in which the other members cannot claim any interest. ...According to Ramaswami Iyer v. Subramania Pillai, 1962 Ker.L.J. 929, the character of self-acquired property cannot be held to have been altered into that of joint family property either by the other coparceners being allowed to use it jointly or there being some declarations not uniform or consistent regarding the property being joint family property. Venkatasami v. Radhakrishnan, A.I.R. 1963 A.P. 476 : held that neither the fact that the father made a statement that the property is joint family property of himself and his sons nor the fact that the sons were permitted to enjoy the income of the properties would impress the same with the joint family character if from the circumstances of the case it could be inferred that there was no intention on the part of the father to covert the self-acquired property into joint family property ..." 18. So the defendants cannot take advantage of the fact that the 1st defendant was included in the above said sale deeds as one of the vendors in support of his submission that the properties in question are the ancestral properties. Even assuming that the the 1st defendant and Rathinasabapathi Mudaliar has been constituting a joint family property, it does not mean that the absolute properties of Rathinasabapathi Mudaliar also have to be treated as joint family properties unless it is pleaded and proved, as stated above. 19. While dealing with the character of the property which devolved with Hindu under Sec.8 of Act, the Apex Court in the decision in Yudhishter v.Ashok Kumar, A.I.R. 1987 S.C. 558, held as follows:- "10. This question has been considered by this Court in Commr. Of Wealth Tax, Kanpur v. Chander Sen, (1986) 3 SCC 567 : ( AIR 1986 SC 1753 ), where one of us (Sabyasachi Mukharji, J.) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore, whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separate property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Kar of his own undivided family but takes it in his individual capacity. At pages 577 to 578 (of SCC) (at p.1760 of AIR) of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn. Pages 924-926 as well as Mayne's on Hindu Law 12th Edition pages 918-919. Shri Banerji relied on the said observation of Mayne on 'Hindu Law',12th Edn., at pages 919-919. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn., page 919. In that view of the matter, it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a-vis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house." 20. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house." 20. In view of the above, the claim of the defendants that they are the ancestral properties and thereby the appellant/plaintiff is entitled to only in the share of Rathinasabapathi Mudaliar alone, namely, 1/6th share, cannot be sustained and in view of the finding given already to the effect that the properties are the absolute properties of Rathinasabapathi Mudaliar and also not thrown into the hotchpat of joint Hindu family, the plaintiff is entitled to 1/4th share as she claimed in the suit. 21. In view of the above conclusion, the 2nd defendant is not entitled to claim any right on the basis of Sec.29A of the Act. 21. In view of the above conclusion, the 2nd defendant is not entitled to claim any right on the basis of Sec.29A of the Act. Such a claim can be made only if it is a coparcenary property which deals with equal rights to unmarried daughter in coparcenary property, which reads as follows:- "29-A. Equal rights to daughter in co-parcenary property:- Notwithstanding anything contained in Section 6 of this Act - (i) in a Joint Hindu Family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son; (ii) at a partition in such a joint Hindu Family the coparcenary property shall be so divided as to allot a daughter the same share as is allottable to a son; Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such a pre-deceased son or of such pre-deceased daughter; Provided further that the share allotable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of such pre-deceased daughter as the case may be; (iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition; (iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989. (v) nothing in clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989". (v) nothing in clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989". According to the above said provision, unmarried daughter, by birth, becoming a coparcenary and she is having every right in the coparcenary property as if she had been a son as it relates to unmarried daughter in view of Sec.29-A(iv) which excludes the married daughter, before the date of commencement of Hindu Succession (Tamil Nadu Amendment) Act, 1989. The said provision will apply to the facts of the present case. But as found earlier, the properties in question cannot be treated as coparcenary properties. The said provision cannot be relied on by the 2nd defendant, who is an unmarried daughter to sustain her claim under the above said provision. 22. Learned counsel for the appellant also submitted that though on the date of the suit the 1st defendant was alive and restriction under Sec.23 of the Act cannot be relied on due to the death of the 1st defendant pending trial to deal with the claim of the plaintiff to 'A' schedule property. Learned counsel for the respondents, in turn, submitted that the suit has to be decided on the basis of the facts available on the date of the suit and the subsequent death of the 1st defendant cannot validate the claim made which is prohibited under Sec.23 of the Act. 23. While dealing with the scope of partition suit in the light of intervening events, the apex Court in the decision in S.Sai Reddy v. S.Narayana Reddy, (1991)3 SCC 647 , has held as follows:- " .... When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of varying shares of the parties like any supervening development. ..." In view of the above said decision of the Apex Court the submission of the learned counsel for the respondents that the intervening events should not be taken into consideration while passing decree cannot be countenanced. Because of the intervening event, namely, the death of the 1st defendant, the prohibition under Sec.23 of the Act has been lifted and so the trial court should have taken into consideration the said event also while passing the decree for partition and the dismissal of the suit with respect to 'A' schedule property cannot be sustained. 24. Learned counsel for the respondents submitted that since difference between son and daughter of the Hindu family is removed under Sec.29-A of the Act, the daughter is conferred coparcenary right in the joint family property by birth in the same manner and to the same extent in the coparcenary property. On that basis, learned counsel submitted that since the 2nd defendant is alive, who has to be treated equal to son, the suit for partition of dwelling house cannot be sustained during her life time also. First of all, the said provision cannot be relied on by the 2nd defendant as the property is not the coparcenary property. A legal fiction should not be extended beyond its avowed purpose. Moreover an unmarried daughter can under Sec.29-A of the Act claim right equal to a son in spite of specific devolution of interest in coparcenary properties as contained in Section 6 of the Act. But It does not exclude the operation of Sec.23 of the Act also. A legal fiction should not be extended beyond its avowed purpose. Moreover an unmarried daughter can under Sec.29-A of the Act claim right equal to a son in spite of specific devolution of interest in coparcenary properties as contained in Section 6 of the Act. But It does not exclude the operation of Sec.23 of the Act also. Sec.29-A of the Act is a deviation from Sec.6 of the Act. But it cannot be said that special right given to son also is taken away in view of Sec.29-A of the Act. Under Sec.23 of the Act also a daughter who is unmarried or has been deserted or has been separated from her husband or is a widow is entitled to a right of residence in the dwelling house. So, Sec.29-A of the Act cannot be relied on in this case to rely on the restriction made under Sec.23 of the Act on the female members to file a suit for partition with respect to the dwelling house as submitted by the learned counsel for the respondents. In view of the above, the trial court is not correct in rejecting the suit with respect to plaint 'A' schedule property holding that on the date of suit the 1st defendant was alive and he died only subsequently. 25. In view of the above discussion, the judgment and decree dated 24.4.2002 made in O.S.No.3053/1998 insofar as they relate to plaint 'A' schedule property cannot be sustained and they are set aside, and, equally, the Cross Objection filed by defendants 2 and 5 cannot also be sustained. Hence the above appeal is allowed and the Cross Objection is dismissed. No costs. C.M.P.No.10477/2003 The above C.M.P., is filed to receive the additional documents. P.Shanmugam,J., rejected the application as indicated in para 48 of the judgment, but R.Banumathi, J., ordered the application insofar as it relates to document Nos.2 and 4, which have been directed to be marked as Exs.B10 and B11. It is not the case of the petitioner that the said documents were not available during the course of trial. No valid reason also has not been given as to why such documents were not filed before the trial court. In the absence of any such reasons, this application cannot be entertained. Hence it has to be rejected and accordingly, it is rejected. No valid reason also has not been given as to why such documents were not filed before the trial court. In the absence of any such reasons, this application cannot be entertained. Hence it has to be rejected and accordingly, it is rejected. 02/04/2004 Per K.Govindarajan, J. In view of separate judgments delivered in A.S.No.69/ 2003 and Cross Objection No.40/2003 by P.Shanmugam, J., and R.Banumathi, J., the same was referred to the learned single Judge, K.Govindarajan, J.,(one of us) by the order of My Lord, The Hon'ble, The Chief Justice, dated 15.3.2004. 2. K.Govindarajan, J., in his judgment dated 25.3.2004, concurred with the judgment of P.Shanmugam, J. 3. Hence, the appeal in A.S.No.69/2003 is allowed. Cross Objection.40/2003 is dismissed. C.M.P.Nos.1026,4906 and 10324 of 2003 are closed. C.M.P.No.10477/2003 is rejected. No costs.