S.Seshachalam vs S.Deenadayalan

This Appeal is filed against the judgment and decree passed by the VI Additional Judge, City Civil Court at Chennai in O.S.No.1444 of 2004 dated 5.10.2007.

2. The plaintiff in O.S.No.1444 of 2004 on the file of the VI Additional City Civil Court is the Appellant before this Court. He is aggrieved by the judgment and decree of the trial Court granting 1/5th share in the suit schedule property to the plaintiff, 1/5th share each to defendants 1 to 3 and 1/5th share in total to defendants 4 to 8.

3. The facts which are leading to the filing of the above Appeal are as follows:

4. For the sake of convenience, the parties are referred to as per their ranking in the suit.

5. The plaintiff and the first defendant are brothers. Defendants 2 and 3 are their sisters. The mother of defendants 4 to 8 was also a sister of the plaintiff and defendants 1 to 3.

6. The plaintiff filed O.S.No.1444 of 2004 for partition of 2/5th share of the plaintiff in the suit schedule property which is land and building admeasuring about 2451 sq.ft. bearing new Door No.129, Old Door No.51, Tana Street, Purasawalkkam, Chennai 600 007. Though the plaintiff claimed 2/5th share initially in the amended plaint filed by him, the plaintiff prayed for a judgment and decree for partition of 1/2 share in the suit schedule property.

7. According to the plaintiff, defendants 1 to 3, himself and the mother of defendants 4 to 8 are the sons and daughters of late Thiru K.Somasundaram Chettiyar. The suit schedule property belonged to the forefathers of their father and the same was acquired by him through inheritence. Their father, Thiru Somasundaram Chettiyar was living in the suit schedule property along with the plaintiff, defendants 1 to 3 and the mother of defendants 4 to 8. The daughters lived there till their marriage. Thiru Somasundaram Chettiyar was acting as the Karta of Hindu undivided family, consisting of himself, the first defendant and the plaintiff. Thiru Somasundaram Chettiyar passed away on 31.8.1965 leaving his wife Tmt.Tirupurasundari Ammal, the defendants 1 to 3, the mother of defendants 4 to 8 and the plaintiff as the legal heirs. Tmt. Tirupurasundari Ammal lived in the suit schedule property till her death and she died on 8.1.1998. After her death, the plaintiff and the first defendant continued to be in possession of the suit schedule property.

8. As it became impossible, for the plaintiff to live jointly, in the suit schedule property, he requested the first defendant on several occasions to effect partition of the property by metes and bounds. But, the first defendant evaded the plaintiff and he was only interested in collecting the rent from the several portions which were let out. He was also not sharing rental income or showing the accounts for the same. Hence, he filed a suit in O.S.No.1410 of 1999 on the file of the 17th Assistant City Civil Court for the partition of the plaint schedule property. The suit was dismissed on the ground that the other legal heirs of late Somasundaram chettiyar were not impleaded as parties in the suit. Therefore, the plaintiff issued legal notice to the other legal heirs calling upon them to come for an amicable settlement, and to partition the suit schedule property. As the defendants could not come forward to do so, the plaintiff filed the above suit for the abovesaid relief.

9. It is the case of the plaintiff that after the death of his father and mother, the plaintiff and the first defendant are entitled to 1/2 share each and hence, he claimed his 1/2 share in the suit schedule property.

10. The first defendant, in his written statement, admitted the relationship of the parties to the suit. He also admitted that the property was acquired by their father by inheritance. He pointed out that challenging the dismissal of the suit filed by the plaintiff in O.S.No.1410 of 1999, the plaintiff filed an appeal in A.S.No.98 of 2004 on the file of the VI Additional City Civil Court and the same is pending. In view of the pendency of A.S.No.98 of 2004, the present suit is barred by resjudicata. However, the first defendant stated that he is entitled to 1/2 share in the suit property. In the additional written statement filed by the first defendant, he contended that he is entitled to half share in the suit property and the defendants 2 to 8 are not entitled to any share at all.

11. In the written statement filed by the second defendant, she stated that she was not aware of the provisions of the suit filed by the plaintiff and she contended that as a legal heir of her father, she is not only entitled to 1/5th share in the suit schedule property, but also for the mesne profits. In such circumstances, the second defendant stated that she has no objection in partitioning the suit property by metes and bounds provided that she gets 1/5th share.

12. In the additional written statement filed by the second defendant, she stated that the Hindu Succession (Amendment) Act came into force on 9.2.2005 and as per the new amendment, she is entitled to equal share in the suit schedule property in all her rights as a Coparcener. Hence, she reiterated her claim that she is entitled to 1/5th share as a matter of right since she is also a Coparcener as per the Hindu Succession (Amendment) Act.

13. A similar written statement has been filed by the third defendant claiming 1/5th share and also mesne profits. She has also no objection for partition of the suit property provided she gets her lawful share together with mesne profits.

14. The defendants 4, and 5 to 8 in their written statement stated that after the demise of Thiru Somasundaram Chettiyar, the property devolves upon his legal heirs namely the plaintiff, defendants 1 to 3 and the mother of defendants 4 to 8. Since the mother of defendants 4 to 8 is no more, the defendants 4 to 8 are jointly entitled to 1/5th share.

15. On the basis of the above pleadings, the following issues were framed by the trial Court:

1. Whether the suit property is the ancestral property of the family of the plaintiff ?

2. Whether the plaintiff is entitled to 2/5th share in the suit property ?

3. Whether the first defendant is liable to pay mesne profits or any such damages ?

4. To what other relief the plaintiff is entitled to ?

16. The following additional issue was also framed by the trial Court:

Whether the plaintiff is entitled to half share ?

17. On the side of the plaintiff, the plaintiff was examined as P.W.1 and Exhibits A1 to A13 were marked. On the side of the defendants, the first defendant was examined as D.W.1 and exhibits B1 to B4 were marked.

18. While considering all the issues together, the trial court found that the suit property is the ancestral property of Thiru Somasundaram Chettiyar. After adverting to the provisions of Amendment Act 2005, and in particular, the amendment made to Sec.6 of the Hindu Succession (Amendment) Act, the trial court held that the daughters are also entitled to equal share and the plaintiff is not entitled to half share in the suit schedule property. The trial Court further rendered a finding that the plaintiff, defendants 1 to 3 and the mother of defendants 4 to 8 are equally entitled to get 1/5th share. Consequently, the trial court held that the plaintiff and defendants 1 to 3 are entitled to get 1/5th share each and defendants 4 to 8 are jointly entitled to get 1/5th share. In so far as the mesne profits claimed by the parties are concerned, the same was rejected by the trial court.

19. Aggrieved by the judgment and decree of the trial court, dated 5.10.2007, made in O.S.No.1444 of 2004, in so far as granting only 1/5th share, the plaintiff filed the above appeal seeking 6/5th share each to the appellant and to the first respondent and 1/15th share each to respondents 2 and 3 and deceased Chandrammal whose legal heirs are respondents 4 to 8.

20. Heard the learned counsel for the plaintiff/ appellant, the learned counsel for the second defendant/ second respondent and the learned counsel for the defendants 3 to 6/respondents 3 to 6 and 8. The first defendant/first respondent appeared in person and he was also heard by this court.

21. The learned counsel for the plaintiff/appellant submits that the suit property is the ancestral property and on the birth of the plaintiff and the first defendant they were entitled to get a share each with their father and therefore, all the three male members of their family are entitled to 1/3rd share. On the death of Thiru Somasundaram Chettiyar, on 31.8.1965, the Succession opened for his 1/3rd share and therefore, the unamended Sec.6 of the Hindu Succession Act 1956 alone would govern the field. Accordingly, the 1/3rd share of the deceased Somasundaram Chettiyar would devolve on all the legal heirs namely the plaintiff, defendants 1 to 3 and the mother of defendants 4 to 8 equally. Therefore, according to the learned counsel for the appellant, both the plaintiff and the first defendant are entitled to 1/15th share in that 1/3rd share and adding 1/15th share to their 1/3rd share, both of them are entitled to 6/15th share and the three daughters are entitled to 1/15th share. The learned counsel further urged that the Amendment Act came into force with effect from 20.12.2004 and therefore, it would not apply to the present case. He further contended that since the plaintiff's father passed away on 31.08.1965, the disposition had taken place by operation of law and therefore, the daughters are not entitled to equal share as claimed by them. In support of his submissions, the learned counsel for the plaintiff/appellant relied on the following decisions:

1. 2007(1) M.L.J. 797 (SC) (Sheela Devi and others Vs Lal Chand and another) (2006(8) SCC 581)

2. A.I.R. 2008 MDS 250 (Smt.Bagirathi & others Vs S.Manivanan & another) (2008(3) TLNJ 416 (Civil))

3. 2008(4) C.T.C. 773 (Valliammal Vs Muniyappan and others)

4. (1997)10 SCC 684 (Sathyaprema Manjunatha Gowda (Smt) vs Controller of Estate Duty, Karnataka)

5. 2006 A.I.R. SCW 5063 (anar Devi & others Vs Parmeshwari Devi & others)

6. 2007(4) T.L.N.J. 535 (Angammal & another Vs C.Sellamuthu & another)

7. 2007(4) T.L.N.J. 237 (Civil) (Nachayal Vs Pongiannan & 11 others)

8. Vol.69 1968 ITR 342 (T.S.Rajam Vs Controller of Estate Duty, Madras

9. A.I.R. 1977 (SC) 500 (Madras Refineries Ltd. Vs Chief Controlling Revenue Authority, Board of Revenue, Madras)

22. Per contra, the learned counsel for the second respondent would contend that the Hindu Succession (amended) Act 2005 came into force on 9.9.2005 during the pendency of the suit and even before passing of the preliminary decree. As per the amendment, the daughters of a co-parcener are also given the same status equally to that of the sons. According to the learned counsel for the second respondent, the newly amended Sec.6(1) of the Hindu Succession Act would apply to the present case as no disposition, alienation or partition of the property took place before 20.12.2004. He pointed out that the partition contemplated in that section is actual partition by execution of deed of partition or partition effected by a decree of court. Therefore, the learned counsel submits that there is no question of considering notional or deemed partition. It is his contention that only when actual partition has taken place prior to 20.12.2004, the amended Act would not apply and in this case, as there was no such partition prior to 20.12.2004, the trial court has correctly held that the daughters are also entitled to equal shares. The learned counsel further urged that the Hindu Succession (Amendment) Act is a beneficial legislation and therefore, the same is to be liberally interpreted to confer the benefits on the beneficiary that is women.

23. In support of his submissions, the learned counsel for the second respondent relied on the following decisions:

1. (1991)3 SCC 647 (S.Sai Reddy Vs S.Narayana Reddy and others)

2. 2007(3) M.L.J. 1029 (G.Sekar Vs Geetha and 7 others)

3. 2009(2) C.T.C. 130 (M.Revathi Vs R.Alamelu and 6 others)

4. 1970(2) SCC 390 (Goli Eswariah Vs Commissioner of Gift Tax, Andhra Pradesh)

5. 2009(2) C.T.C. 324 (S.N.Mathur Vs Board of Revenue and others)

6. 2005(6) SCC 622 (Vellikannu Vs R.Singaperumal and another)

7. 2004(3) M.L.J. 620 (Alamelu Ammal and others Vs Tamizh Chelvi and others)

8. 1996(6) SCC 44 (Union of India and others Vs Dhanwanti Devi and others)

24. The learned counsel for the respondents 3 to 6 and 8 while adopting the arguments made by the learned counsel for the second respondent, submitted that the amending provision is a beneficial legislation to remove the ineqaulity between the two sexes. Therefore, he contends that the same is to be interpreted in such a way that it gives benefit to women rather than depriving the property to them. Hence, he prayed for the dismissal of the appeal.

25. The first defendant/first respondent appeared in person and submitted that he is adopting the arguments of his brother, the appellant herein and prays for allowing the appeal in so far as the allotment of shares to him and his brother by the trial court.

26. I have considered carefully the submissions made on behalf of the parties. I have also gone through the entire documents available on record.

27. Now, it is not in dispute that the suit schedule property is an ancestral property of Thiru Somasundaram Chettiyar who died intestate on 31.8.1965. It is also an admitted fact that his wife Tmt.Tirupurasundari Ammal breathed her last on 8.01.1998. It is also an admitted fact that the plaintiff and the defendants are the two sons of their deceased parents and defendants 2 and 3 and the mother of defendants 4 to 8 are the daughters of their parents. If that being so, the only question that arises for consideration is whether the trial court has correctly decided the shares allotted to the plaintiff and the defendants by relying on the provision of the Amended Central Act 39 of 2005.

28. Before proceeding further, it is useful to refer to the Sec.6 of the unamended Hindu Succession Act, 1956 "6. Devolution of interest in coparcenary property-

(1) When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.

Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this act and not by survivorship.

Explanation 1- For the purpose of this section, the interest of a Hindu Mitakhara coparcener shall be deemed to be 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.

Explanation 2- Nothing contained in the provision to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."

29. After amendment, the very same section, now, reads as under:

"On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcerner;

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) 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 testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be 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.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son,grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect-

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation: For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation: For the purposes of this section"partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by the decree of a Court."

30. According to the plaintiff and the first defendant, the daughters i.e. their sisters could not take advantage of the amended Act as their father died on 31.8.1965 and on that day, the succession has opened and the suit property attracted disposition by operation of law. Therefore, it is their case that when their father passed away as early as on 31.08.1965, it is not open to the daughters to rely on the amendment Act to contend that they are entitled to a share in the property as they have become coparceners in their own right in the same manner as the sons. This was sought to be disproved by the daughters by contending that there was no disposition or alienation including any partition or testimony disposition of the property in this case before 20.12.2004 and therefore, the proviso to Sec.6(1) will not get attracted. It is their further case that the partition contemplated in Sec.6(1) as defined in sub clause 5, according to which, partition means any partition made by execution of a Deed or partition effected by a decree of court. Since there was no such partition in the present case, it is their case that the new Act would apply and the trial court has correctly held that they are entitled to equal share in their own rights as coparceners.

31. Before considering the rival contentions, let me consider the decisions relied on by the counsel appearing for the parties.

32. In (2007)1 M.L.J. 797 (SC) (cited supra), the Hon'ble Supreme Court observed as under:

"19. The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. Sub-section (1) of Section 6 of the Act governs the law relating to succession on the death of a coparcener in the event the heirs are only male descendants. But, proviso appended to sub-section (1) of Section 6 of the act creates an exception. First son of Babu Lal viz., Lal Chand, was, thus, a coparcener. Section 6 is exception to the general rules. It was, therefore, obligatory on the part of the plaintiffs-respondents to show that apart from lal Chand, Sohan Lal will also derive the benefit thereof. So far as the second son Sohan Lal is concerned, no evidence has been brought on records to show that he was born prior to coming into force of Hindu Succession Act, 1956."

33. It is no doubt true that the Hon'ble Supreme Court in the above decision has clearly observed that the Amendment Act 2005 would have no application in that case as the Succession having opened in 1989 when the father in that case passed away.

34. This decision was very much relied on by the learned counsel for the plaintiff/appellant as in this case also, the father passed away as early as on 31.08.1965 and therefore, the succession has already opened in 1965 itself.

35. Per contra, the learned counsel for the second respondent submits that this decision is not a binding precedent for the proposition that the Hindu Succession (Amendment) Act, 2005 will have no application in cases where the succession has opened prior to December 2004. According to him, the above observation made by the Hon'ble Supreme Court is not a ratio Decidendi as the issue before the Hon'ble Supreme Court was whether the provisions of Sec.8 of the Hindu Succession Act, 1956 would apply or whether the law applicable prior to 1956 Act would apply to the facts of the case.

36. In A.I.R. 2008 MDS 250 (cited supra), a Division Bench of this Court held as under:

"13. A careful reading of Section 6(1) read with 6(3) of the Hindu Succession (Amendment) Act clearly indicates that a daughter can be considered as a coparcener only if her father was a coparcener at the time of coming into force of the amended provision. It is of course true that for the purpose of considering whether the father is a coparcener or not, the restricted meaning of the expression "partition" as given in the explanation is to be attributed.

14. In the present case, admittedly the father of the present petitioners had expired in 1975. Sec.6(1) of the act is prospective in the sense that a daughter is being treated as coparcener on and from the commencement of the Hindu Succession (Amendment) Act, 2005. If such provision is read along with Sec.6(3), it becomes clear that if a Hindu dies after commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property shall devolve not by survivorship but by intestate succession as contemplated in the act.

15. In the present case, the death of the father having taken place in 1975, succession itself opened in the year 1975 in accordance with the existing provisions contained in Sec.6. If the contention of the petitioners is accepted, it would amount to giving retrospective effect to the provisions of Section 6 as amended in 2005. On the death of the father in 1975, the property had already vested with Class-I heirs including the daughters as contemplated in the unamended Sec.6 of the Act. Even though the intention of the amended provision is to confer better rights on the daughters, it cannot be stressed to the extent of holding that the succession which had opened prior to coming into force of the amended Act are also required to be re-opened. In this connection, we are also inclined to refer to the decision of M.Srinivasan, J. as His Lordship then was, reported in 1991(2) M.L.J.199 (Sundarambal and others V. Deivanaayagam and others). While interpreting almost a similar provision, as contained in Section 29-A of the Hindu Succession Act, as introduced by the Tamil Nadu Amendment Act 1 of 1990, the learned Single Judge had made the following observations:-

"14.... Under sub-clause (1), the daughter of a coparcener shall become a coparcener in her own right by birth, thus enabling all daughters of a coparcener who were born even prior to 25th March, 1989 to become coparceners. In other words, if a male Hindu has a daughter born on any date prior to 25th March, 1989, she would also be a coparcener with him in the joint family when the Amendment came into force. But the necessary requisite is, the male Hindu should have been alive on the date of the coming into force of the Amended Act. The section only makes a daughter a coparcener and not a sister. If a male Hindu had died before 25th March, 1989 leaving coparcenary property, then his daughter cannot claim to be a coparcener in the same manner as a son, as , on the date on which the Act came into force, her father was not alive. She had the status only as a sister-a-vis her brother and not a daughter on the date of the coming into force of the Amendment Act....."

37. In the above decision, the very same question arises for consideration before this Court as to the applicability of the Hindu Succession Act to the facts of that case. After considering Sec.6(1) read with Sec.6(3) of the Hindu Succession Act, the Division Bench held that as the father of the petitioners expired in 1975, it became very clear that the succession itself opened in the year 1975 in accordance with the existing provisions contained in Sec.6. Therefore, the property had already vested with clause (1) heirs including daughters as contemplated in the unamended Sec.6 of the Act. Hence, the Division Bench held that the amended Sec.6 is prospective in nature and as the father died in 1975 itself, the succession would not be reopened to confer better rights on daughters as per the amended Sec.6.

38. This judgment by the Division Bench decided an identical question which is binding on me and I have to necessarily follow the same while deciding the issue involved in this appeal on the facts and circumstances of the present case.

39. In 2008(4) C.T.C. 773 (cited supra), this Court observed as under:

"6. In the plaint, it is stated that the father of the plaintiffs died about thirty years prior to the filing of the suit. The second plaintiff as P.W.1 has deposed that their father died in the year 1968. The Amendment Act 39 of 2005 amending Section 6 of the Hindu Succession Act, 1956 came into force on 9.9.2005 and it conferred right upon female heirs in relation to the joint family property. The contention put forth by the learned counsel for the appellant is that the said Amendment came into force pending disposal of the Suit and hence the plaintiffs are entitled to the benefits conferred by the Amending Act. The Amending Act declared that the daughter of the coparcener shall have the same rights in the coparcenery property as she would have had if she had been a son. In other words, the daughter of a coparcener in her own right has become a coparcener in the same manner as the son insofar as the rights in the coparcenery property are concerned. The question is as to when succession opened insofar as the present suit properties are concerned. As already seen, the father of the plaintiffs died in the year 1968 and on the date of his death, the succession had opened to the properties in question. In fact, the Supreme Court in a recent decision in Sheela Devi and others V. Lal Chand and another, 2007(1) M.L.J. 797 (SC) considered the above question and has laid down the law as follows:

"19. The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradhesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application."

In view of the above statement of law by the Apex Court, the contention of the appellant is devoid of merit. The succession having opened in the year 1968, the Amendment Act 39 of 2005 would have no application to the facts of the present case. No other contention was advanced by the counsel for the appellant."

40. In the above judgment also, a learned Single Judge of this Court held that as the father of the plaintiffs in that case died in the year 1968, on the date of his death, the succession has opened to the properties in question. Therefore, it was reiterated that the succession having opened in the year 1968, the Amendment Act 39 of 2005 would have no application to the facts of that case.

41. In 1997(10) SCC 684 (cited supra), the Hon'ble Supreme Court held as under:

"12. The word survivor usually applies to the longest lives of two or more partners or trustees, and has been applied in some cases to the longest liver or joint tenants and legatees, and to others having a joint interest in any property.

13. Here, we are concerned with Manjunatha Gowda who had obtained property at a partition with coparceners. Survivorship, therefore, is the living of one of two or more persons after the death of the others having interest to succeed in the property by succession. The shares in the coparcenary property changes with death or birth of other coparceners. However, in the case of survivorship it is not of the same incidence. He received the property at the partition without there being any other coparcener. It is an individual property and, therefore, he did not receive it by survivorship but by virtue of his status being a coparcener of the Hindu Joint Family along with his father and brothers.

14. Under these circumstances, the conclusion reached by the High Court that since it is by partition, not by survivorship, clause (d) of sub-section (1) of Section 8 does not get attracted, is not (sic) correct. No doubt, the learned counsel relied upon the judgment of this Court in Nagendra Prasad v. Kempananjamma1 which was also considered by the High Court in the impugned judgment. This Court therein has explained that the object of Section 8(1)(d) is to give a right to claim a share in the joint family property to all females referred to in clauses (a) to (c) thereof. Merely because partition by one of the coparceners under clauses (a) to (c) is a condition for a class of family members entitled to a share in the property, it does not apply to a case where class of family members entitled under clause 8(1)(d) since it stands altogether on a different footing and, therefore, partition is not a condition precedent for claiming a share by a class of family members enumerated in Section 8(1)(a) of the Act. But that principle has no bearing to the facts in this case for the reason that the property held was not received by survivorship."

42. In 2006 A.I.R. SCW 5063 (cited supra), the Hon'ble Supreme Court held as under:

"11. Thus we hold that according to Section 6 of the Act when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative specified in that class claiming through such female relative, his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his heirs by intestate succession. Explanation 1 to Section 6 of the Act provides a mechanism under which undivided interest of a deceased coparcener can be ascertained and, i.e., that the interest of a Hindu Mitakshara coparcener shall be deemed to be 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. It means for the purposes of finding out undivided interest of a deceased co-parcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenary property which he could have got in notional partition.

12. In the case on hand, notional partition of the suit properties between Nagarmal and his adopted son Nemi Chand has to be assumed immediately before the death of Nagar Mal and that being so Nagar Mal's undivided interest in the suit property, which was half, devolved on his death upon his three children, i.e., the adopted son Nemi Chand and the two daughters who are plaintiffs in equal proportion. Nemi Chand, the adopted son, would get half of the entire property which right he acquired on the date of adoption and one third of the remaining half which devolved upon him by succession as stated above. This being the position, each of the two plaintiffs was not entitled to one-third share in the suit property, but one-sixth and the remaining properties would go to the adopted son, Nemi Chand.

13. Undisputedly, the suit properties in the hands of Nagar Mal were ancestral one in which his son Nemi Chand got interest equal to Nagar Mal after his adoption and from the date of adoption, a coparcenary was constituted between the father and the adopted son. Upon the death of Nagar Mal, the property being ancestral; the half undivided interest of Nagar Mal therein devolved by rule of succession upon his three heirs, including Nemi Chand. This being the position each of the daughters would be entitled to one-sixth share in the suit properties and the remaining would go to the heirs of Nemi Chand, since deceased."

43. In the above decision also, the Hon'ble Supreme Court held that notional partition of the suit properties has to be assumed before death and accordingly the shares are to be allotted to the sons and daughters.

44. In 2007(4) TLNJ 535 (civil), cited supra, this Court held as under:

"14. On the facts of this case, Chennimalai Gounder died on 23.6.2004, the date on which notional partition has taken place which is before 20.12.2004, which is contemplated under the proviso to section 6(1) of the Hindu Succession Act after amendment. On the pleadings, it is clear that the final decree has been passed as early as on 11.8.1989. Admittedly, the plaintiffs have got married in the years 1965 and 1970 respectively. In these circumstances, as per law which is relied upon by the plaintiffs, the plaintiffs are not entitled to larger share since the Amendment Act is prospective in nature and there is no question of enlargement of devolution of share to the plaintiffs. When that is so, the amendment has to be necessarily rejected. In such circumstances, the reliance placed by the learned counsel for the petitioners on the judgement of this Court in Jothi v. Kumaravel (2007 (3)MLJ 64) that amendment under Order VI, Rule 17 can be effected at any time even after commencement of trial, has no application.

15. As correctly pointed out by the learned counsel for the respondents, the Supreme Court has held in Sheela Devi v. Lal Chand [(2007) 1 MLJ 797 (SC)], if succession has opened prior to Hindu Succession (Amendment) Act, 2005, the provisions of Amendment Act would have no application. It is based on the ratio decidendi given by the Supreme Court in the said judgement, the learned trial Judge has rejected the application for amendment on the ground that Chennimalai Gounder died on 23.6.2004. But a careful reading of the said jugement shows that in that case the High Court was required to determine as to whether the provisions of Section 8 of the Act would apply to the facts of the said case or the law prior to the enforcement of 1956 Act would apply. The High Court having held that the nature of the prayer must be regarded as a Hindu coparcenery and as such the law applicable before the Act came into effect would govern the rights of the parties and no the provisions of the Act. It was in those circumstances, the Supreme Court held that if the succession is opened before the Amendment Act came into existence, the Amendment Act, 2005 would have no application. The Supreme Court further held as follows:

"19. The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. Sub-section (1) of Section 6 of the Act governs the law relating to the succession on the death of a coparcener in the event the heirs are only male descendants. But, proviso appended to Sub-section (1) of Section 6 of the Act creates an exception. First son of Babulal, viz., Lalchand, was thus, a coparcener. Section 6 is exception to the general rules. It was, therefore, obligatory on the part of the plaintiffs/respondents to show that apart from Lalchand, Sohan Lal will also derive the benefit thereof. So far as the second son Sohan Lal is concerned, no evidence has been brought on record to show that he was born prior to coming into force of Hindu Succession Act, 1956".

16. In any event, in as much as under the amended provision, especially the provisos to section 6(1) and 6(5) of the Act, any partition effected before 20th December, 2004 has been saved and on the facts of the case as it is narrated in the written statement that in the partition suit there has been a final decree passed on 11.8.1999 itself and on the basis of memo of compromise filed in which Chennimalai Gounder, who was a coparcener, ultimately died on 23.6.2004. Even as per the explanation, notional partition has taken effect from the date of his death, viz., 23.6.2004 before which time the partition has already been effected by way of final decree and therefore, as rightly pointed out by the learned trial Judge, there is no substance in the contention of the petitioners that by advent of law, viz., by way of amendment, the division of shares gets enlarged. In view of the same, there is no illegality or irregularity in the order of the learned trial Judge and the revision fails and the same is dismissed. No costs. Connected miscellaneous petition is closed."

45. In the above case, the plaintiff's father passed away on 23.6.2004 and therefore, this court held that a notional partition has taken place before 20.12.2004. Hence, this court held that the plaintiffs are not entitled to larger share since the Amendment Act is prospective in nature and there is no question of enlargement of devolution of shares to the plaintiffs.

46. In 2007(4) TLNJ 237 (Civil) (cited supra), this court while considering the Tamilnadu Amendment Act 1989, observed as under:

"11. The law is settled that if the partition had been effected before the Amendment Act came into force, the daughter even though unmarried, is not entitled for a share in the family property. It is seen that in the cases decided by the Apex Court and by the Division Bench of this Court, the daughter of a coparcener became a coparcener in her own right, since the coparcener was alive on the date of coming into force of the Amendment Act and in those circumstances, when a partition was not effected, it is held that unmarried daughter shall become coparcener in the same manner as a son. In the present case, Palani Gounder died on 27.3.1975, well before the coming into force of the Tamil Nadu Amendment Act 1/1990, namely, 25.3.1989 and hence the plaintiff, viz., his unmarried daughter, cannot claim to be a coparcener in the same manner as a son as on the date of coming into force of the Amendment Act. The finding of the Trial Court that the plaintiff is not entitled to the benefit conferred in Tamil Nadu Amendment Act 1/1990, is correct and proper. Hence, the plaintiff is not entitled for a decree for partition as prayed for. The points are answered against the appellant."

47. In (1968) Vol.69 ITR 342 (cited supra), the Division Bench of this court, while considering the Estate Duty Act, 1953, observed as under:

"The word "disposition" is not defined in the Act but there is no positive indicia in the Act to shackle the popular meaning of the word. It has a wide connotation and is used only as expressive of any transfer inter vivos or by operation of law. A settlement is illustrative of the species of disposition known to law but cannot be an equation thereof and is certainly not exhaustive. Though disposition includes a settlement, settlement is not the only way to dispose. A sale is comprehended in the expression "disposition" in section 27 of the Estate Duty Act, 1953."

48. In AIR 1977 SC 500 (cited supra), the Hon'ble Supreme Court while considering the Stamp Act, 1899, observed as under:

"The term "disposition" has been defined in Stroud's Judicial Dictionary as a devise "intended to comprehend a mode by which property can pass whether by act of parties or by an act of the law" and "includes transfer and charge of property." As the Guarantee Agreement did not have any such effect. It did not constitute a "settlement" also. That document was not therefore an instrument of sale, mortgage or settlement and did not fall within the purview of sub-section (1) Section 4 of the Act."

49. The above judgments were cited on behalf of the appellant to submit that as per Sec.6(1) of the Amendment Act 2005, nothing contained in the sub-section shall affect or invalidate the disposition that had taken place prior to 20.12.2004 and in this case, the disposition took place on 31.8.1965 when Thiru Somansundaram passed away. It is the case of the appellant that the term "disposition" is an inclusive term and it cannot be given a restricted meaning.

50. In 1991(3) SCC 647 (cited supra), the Hon'ble Supreme Court while considering Sec.29-A(iv) and (ii), of the Hindu Succession Act 1956 (as amended by the Hindu Succession AP Amendment Act 1986) held as under:

"7. The question that falls for our consideration is whether the preliminary decree has the effect of depriving respondents 2 to 5 of the benefits of the amendment. The learned counsel placed reliance on clause (iv) of Section 29-A to support his contention that it does. Clause (ii) of the section provides that a daughter shall be allotted share like a son in the same manner treating her to be a son at the partition of the joint family property. However, the legislature was conscious that prior to the enforcement of the amending Act, partitions will already have taken place in some families and arrangements with regard to the disposition of the properties would have been made and marriage expenses would have been incurred etc. The legislature, therefore, did not want to unsettle the settled positions. Hence, it enacted clause (iv) providing that clause (ii) would not apply to a daughter married prior to the partition or to a partition which had already been effected before the commencement of the amending Act. Thus if prior to the partition of family property a daughter had been married, she was dis-entitled to any share in the property. Similarly, if the partition had been effected before September 5, 1985 the date on which the amending Act came into force, the daughter even though unmarried was not given a share in the family property. The crucial question, however, is as to when a partition can be said to have been effected for the purposes of the amended provision. A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the court. 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. 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. Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits."

51. The above judgment was very much relied on by the learned counsel for the second respondent to drive home the point that when the Amendment Act came into force during the pendency of the proceedings before the trial Court and prior to passing of the final decree, the act would be made applicable and daughters are entitled to their shares in the family property. But, this was sought to be differentiated by the learned counsel for the appellant by submitting that the decision would not apply to the facts of the present case as in the above decision rendered by the Hon'ble Supreme Court, the father of the family continued to live in co-parcenery when the AP Amendment Act came into force.

52. In 2007(3) MLJ 1029 (cited supra), a Division Bench of this Court while considering Sec.23 of the Hindu Succession Act, in the light of the Amendment Act 39 of 2005 observed as under:

"11. As per our finding already rendered, Ramesh cannot be considered as a heir because there is nothing on record to prove that in fact his mother had married the deceased. Once it is found that Ramesh is not a heir and the property is required to be divided among five children, namely, one son and four daughters, the question of applicability of Section 23 of the Act would in normal course arise for consideration. Since Sekar is the only male heir, the question of partition of the property among the male heirs obviously cannot arise as has been observed by the Supreme Court in Narashimaha Murthy v. Smt. Susheelabai and Others AIR 1996 SC 1826: (1996) 3 SCC 644: JT 1996 (4) SC 300 and therefore if Section 23 would be applicable, daughters cannot claim partition of the dwelling house, which was admittedly in the occupation of Sekar. However, it is to be noticed that Section 23 has been omitted by the Hindu Succession (Amendment)Act, 2005 (Act 39 of 2005) with effect from 9.9.2005. It is no doubt true that such amendment has come into force during pendency of the appeal. However, even assuming that there was any embargo at the time of filing the suit or passing the judgment by the learned single Judge as contemplated under Section 23 of the Act as it stood,in view of the amendment and deletion of such provision, it is obvious that there is no such embargo after 9.9.2005. In other words, after 9.9.2005, any female heir can seek for partition even in respect of a dwelling house. This subsequent event arising out of change in law is obviously to be applied and therefore, the question of applying bar under Section 23 of the Act no longer arises for consideration."

53. In the above decision, the Division Bench after noticing that Sec.23 has been omitted by the Hindu Succession Amendment Act 2005 with effect from 9.9.2005 and such amendment has come into force during the pendency of the appeal, held that after 9.9.2005, any female heir can seek for partition event in respect of a dwelling house and this subsequent even arising out change in law is obviously to be applied and therefore, the question of applying bar under Sec.23 of the Act no long arises for consideration.

54. In 2009(2) CTC 130 (cited supra), this Court observed as under:

"6. At the hearing, the learned counsel for the appellant appropriately and appositely, correctly and convincingly drew the attention of this Court to the recent amendment to the Hindu Succession (Amendment) Act, 2005 (39 of 2005) deleting Section 23 of the Act. No doubt the amendment Act shall have prospective effect, but practically if the matter is viewed, it is clear that as per the Hindu Succession (Amendment) Act, 2005 the plaintiff is entitled to partition of the dwelling house property also and such an amendment has come into vogue during the pendency of the Appeal. The Appeal is deemed to be in continuation of the Suit proceedings. It would be a mere hyper-technicality if the appellant/plaintiff is driven to the extent of filing a fresh Suit invoking the said recent Hindu Succession (Amendment) Act 2005 (39 of 2005) and in such a case, I am having no hesitation in construing that in this case the erstwhile Section 23 is having no application and accordingly partition could be ordered in respect of the 1/8th share of the plaintiff."

55. Relying on the above judgments, the learned counsel for the second respondent vehemently contended that similarly the subsequent event arising in Sec.6(1) of the Hindu Succession Act in view of the Amendment Act 2005 is to be applied in the present case also.

56. In 1970(2) SCC 390 (cited supra), the Hon'ble Supreme Court while considering the provisions of Gift Tax Act 1958, observed as under:

"10. Mr B. Sen, learned counsel for the department contended that the said act should be considered as a disposition under the main part of Section 2 (xxiv). The word disposition is not a term of law. Further it has no precise meaning. Its meaning has to be gathered from the context in which it is used. In the context in which that term is used in Section 2 (xxiv), it cannot mean to dispose of. Otherwise even if a man abandons or destroys his property, it would become a gift under the Act. That could not have been the intention of the legislature. In Section 2 (xxiv), the word disposition is used along with words conveyance, assignment, settlement, delivery, payment or other alienation of property. Hence it is clear from the context that the word disposition therein refers to a bilateral or a multi-lateral act. It does not refer to a unilateral act."

57. In 2009(2) CTC 324 (cited supra), the Hon'ble Supreme Court while considering the provisions of Stamp Act 1899, held as under:

"It is thus evident that not only instruments which are non-testamentary dispositions of property for any religious or charitable purpose, but also declarations of trust which record the terms of such disposition, are settlements. 'Disposition' is a term of wide import which encompasses any devise or mode by which property can pass and includes giving away or giving up by a person of something which was his own (see: The Commissioner of Gift Tax Madras v. N.S. Getty Chettiar, AIR 1971 SC 240, and The Collector of Estate Duty Andhra Pradesh v. Kancharla Kesava Rao, AIR 1973 SC 2485). This Court has also held that the word "disposition" refers to a bilateral or multilateral act of transfer and will not apply to a unilateral act as, for example, when a person treats his individual property as a joint family property. (See: Goli Eswariah v. Commissioner of Gift Tax, AIR 1970 SC 1722). Black's Law Dictionary defines "disposition" as the act of transferring something to the care or possession of another; or relinquishment or giving up of property".

58. In 2005(6) SCC 622 (cited supra), the Hon'ble Supreme Court observed as under:

"10. As per Section 6 of the Hindu Succession Act, if a male Hindu dies after commencement of this Act, an interest in a Mitakshara coparcenary property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. So far as the present case is concerned, the concurrent finding of the fact is that the deceased Ramasami Konar was governed by Mitakshara law and the property was the coparcenary property. But he died intestate. Therefore, as per Section 6, the property shall devolve by survivorship upon the surviving members of the coparcenary and not by Section 6 of the Act and at the same time there is proviso to the section which qualifies the main section that if the deceased left a surviving female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female, the interest of the deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be and not by survivorship."

59. Relying on the above judgments, it was argued that the term "disposition" contemplated in the Amendment Act, has no precise meaning and it means vesting the property by physical transfer or by operation of law by bi-lateral act of parties and it does not refer to a notional or deemed partition which is not a bilateral act.

60. In 2004(3) MLJ 620 (cited supra), a Division Bench of this court while considering Sec.29(A) of the Hindu Succession Act 1956, in the light of the Tamilnadu Amendment Act 1 of 1990, observed as under:

"17. We find force in the submission of Mr. Parthasarathy, learned counsel for the respondents. Sec.29-A of the Hindu Succession Act gives a special statutory right to daughters in a Hindu undivided family and a daughter of a Hindu, if not married before the commencement of the Hindu Succession (Tamil Nadu Amendment) Act 1989, is treated as a coparcener subject to certain conditions contained in Sec.29-A of the Hindu Succession Act, but her rights are equal to that of a son in the Hindu family and she is regarded as a coparcener with a right by birth in the family properties. Sec.29-A begins with the non obstante Clause, 'notwithstanding anything contained in Sec.6 of this Act' which clearly indicates that the provisions of Sec.29-A would override the provisions of Sec.6 of the Hindu Succession Act.

18. It is true that in considering the point as to her share in the coparcenary properties, if an unmarried daughter born before the date of commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 is regarded as a coparcener from the date of her birth, any alienation or gift of the family properties by another coparcener during the interregnum period from the date of her birth till the date of commencement of the Tamil Nadu Amendment Act, 1989 may be exposed to challenge by the daughter, but that is not a ground to deny the right by birth granted under Sec.29-A of the Hindu Succession act to an unmarried daughter. We are of the view that Sec.29-A is a special provision giving a statutory right to a daughter treating her as a coparcener in the family and if such right by birth is given to the daughter, it must mean that she gets the right by birth in the family properties from the date of her birth and it is not a right that would accrue only on the commencement of the Tamil Nadu Amendment Act, 1989. As already held by us, though Sec.29-A of the Hindu Succession Act is prospective in operation, it takes note of the events that happened prior to the insertion of Sec.29-A of the Hindu Succession Act in its operation. Therefore, we are of the view that if any alienation or gift of immovable property was made by the sole surviving coparcener or the Kartha of the family during the interregnum period from the date of birth of a daughter till the date of commencement of the Tamil Nadu Amendment Act, 1989, such an alienation or gift of the family property is liable to be questioned by an unmarried daughter as if she is a coparcener, but we are of the view that the ground of challenge would be limited and the Court would be considering the question of validity of any alienation or transfer made by the said coparcener in the light of the provisions of Sec.29-A of the Act that the daughter became a coparcener only by virtue of that Section which was inserted subsequent to such alienation or transfer."

61. Relying on the above decision, the learned counsel for the second respondent submits that by the Amendment Act, a special provision has been added giving statutory rights to daughters and she gets the right by birth in the family properties from the date of her birth and not on the date of the commencement of the Amendment Act.

62. In 1996(6) SCC 44 (cited supra), the Hon'ble Supreme Court observed as under:

"9. Before adverting to and considering whether solatium and interest would be payable under the Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that Hari Krishan Khosla case2 is not a binding precedent nor does it operate as ratio decidendi to be followed as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi."

63. The above observations of the Hon'ble Supreme Court were very much relied on by the learned counsel for the second respondent to submit that the decision of the Hon'ble Supreme Court reported in 2006(8) SCC 581, (cited supra), is not a binding precedent for the proposition that the Hindu Succession Amendment Act 2005 will have no application in cases where the succession has opened prior to December 2004.

64. Now, in the light of the decisions relied on by both the parties, let me consider the facts of the present case to find out whether the Trial Court has correctly held that the Amendment Act 39 of 2005 would be applicable and the daughters are entitled to equal shares.

65. In Sheeladevi's case (cited supra), the Hon'ble Supreme Court while going through the Hindu Succession Amendment Act 2005, observed that the provisions of the Amendment Act 2005 would have no application in that case as the succession opened in 1989 itself when the father passed away.

66. It is true that this question does not arise for consideration before the Hon'ble Supreme Court and even assuming without admitting that the above observations of the Hon'ble Supreme Court are mere observations and not a ratio decidendi, as contended by the learned counsel for the second respondent, still I am bound by the judgment of the Division Bench of this Court reported in 2008(3) TLNJ 416 (Civil), (cited supra), wherein a similar issue came up for consideration before the Division Bench and the Division Bench after going through the amended as well as the unamended Hindu Succession Act came to the irresistible conclusion that as the father in that case expired in 1975, succession itself opened in that year in accordance with existing provisions contained in Sec.6. Therefore, the Division Bench held that the benefits under the amended provisions of Sec.6 of the Act would not be made available to the daughters.

67. In the present case also, the father passed away as early as on 31.8.1965 and therefore, the succession was already opened in that year in accordance withthe existing provisions contained in Sec.6. Therefore, in this case also, it is to be held that the benefits conferred on the daughters under the amended provisions of the Sec.6 of the Act would not be made applicable.

68. Though an attempt was made by the learned counsel for the second respondent by relying on a Division Bench of this court reported in 2007(3) MLJ 1029 (cited supra), where the Division Bench held that the Amended Act 39 of 2005 would be made applicable in a pending case, it is not useful to the case of the second respondent, as the very same Bench which decided the case in 2007(3) MLJ 1029 (cited supra), delivered the judgment in 2008(3) TLNJ 416 (Civil) (cited supra), by holding that when the father passed away in the year 1975, it is not possible for the daughters to re-open the succession again claiming equal shares on the basis of the Amendment Act 2005.

69. That apart, this Court in 2007(4) TLNJ 535 (civil) (cited supra), and in 2008(4) CTC 773 (cited supra), consistently held that when the succession opened before coming into force of Amendment Act 39 of 2005, its benefits could not be conferred upon the daughters after the Act came into force.

70. Therefore, I have no hesitation in holding that the Trial court has committed an error in holding that the Hindu Succession Amendment Act 2005 would be made applicable in O.S.NO.1444 of 2004.

71. Once it is held that the benefits of the Hindu Succession Amendment Act 2005 could not be conferred on the daughters in the present case, as their father passed away on 31.8.1965, then it is very clear that the plaintiff and the first defendant are entitled to 1/3rd share each before the death of the father and thereafter they are entitled to equal share along with their sisters in their father's 1/3rd share.

72. If that being so, the plaintiff is entitled to 6/15th share (1/3rd plus 1/15th), the first defendant is entitled to 6/15th share (1/3rd plus 1/15th), the second and third respondents are entitled to 1/15th share each and respondents 4 to 8 are jointly entitled to 1/15th share in the suit schedule properties.

73. Thus, the judgment and decree of the trial Court is modified as indicated above.

74. In the result, the appeal is allowed in the above terms. No cost.

vaan