S.Seshachalam v. S.Deenadayalan

9. It is the case of the plaintiff that after the death of hisfather and mother, the plaintiff and the first defendant are entitledto 1/2 share each and hence, he claimed his 1/2 share in the suitschedule property.10. The first defendant, in his written statement, admitted therelationship of the parties to the suit. He also admitted that theproperty was acquired by their father by inheritance. He pointed outthat challenging the dismissal of the suit filed by the plaintiff in*O.S.No.410 of 1999, the plaintiff filed an appeal in A.S.No.98 of2004 on the file of the VI Additional City Civil Court and the sameis pending. In view of the pendency of A.S.No.98 of 2004, thepresent suit is barred by resjudicata. However, the first defendantstated that he is entitled to 1/2 share in the suit property. In theadditional written statement filed by the first defendant, hecontended that he is entitled to half share in the suit property andthe defendants 2 to 8 are not entitled to any share at all.11. In the written statement filed by the second defendant, shestated that she was not aware of the provisions of the suit filed bythe plaintiff and she contended that as a legal heir of her father,she is not only entitled to 1/5th share in the suit scheduleproperty, but also for the mesne profits. In such circumstances, thesecond defendant stated that she has no objection in partitioning thesuit property by metes and bounds provided that, she gets 1/5th share.12. In the additional written statement filed by the seconddefendant, she stated that the Hindu Succession (Amendment) Act cameinto force on 9.2.2005 and as per the new amendment, she is entitledto equal share in the suit schedule property in all her rights as aCoparcener. Hence, she reiterated her claim that she is entitled to1/5th share as a matter of right since she is also a Coparcener asper the Hindu Succession (Amendment) Act.13. A similar written statement has been filed by the thirddefendant claiming 1/5th share and also mesne profits. She has alsono objection for partition of the suit property provided she gets herlawful share together with mesne profits.14. The defendants 4, and 5 to 8 in their written statementstated that after the demise of Thiru Somasundaram Chettiyar, theproperty devolves upon his legal heirs namely the plaintiff,defendants 1 to 3 and the mother of defendants 4 to 8. Since themother of defendants 4 to 8 is no more, the defendants 4 to 8 arejointly entitled to 1/5th share.15. On the basis of the above pleadings, the following issueswere framed by the trial Court: https://hcservices.ecourts.gov.in/hcservices/

1.Whether the suit property is the ancestral property of thefamily of the plaintiff ?2.Whether the plaintiff is entitled to 2/5th share in the suitproperty ?3. Whether the first defendant is liable to pay mesne profits orany such damages ?4.To what other relief the plaintiff is entitled to ?16. The following additional issue was also framed by the trialCourt:Whether the plaintiff is entitled to half share ?17. On the side of the plaintiff, the plaintiff was examined asP.W.1 and Exhibits A1 to A13 were marked. On the side of thedefendants, the first defendant was examined as D.W.1 and exhibits B1to B4 were marked.18. While considering all the issues together, the trial courtfound that the suit property is the ancestral property ofThiru Somasundaram Chettiyar. After adverting to the provisions ofAmendment Act 2005, and in particular, the amendment made to Sec.6 ofthe Hindu Succession (Amendment) Act, the trial court held that thedaughters are also entitled to equal share and the plaintiff is notentitled to half share in the suit schedule property. The trialCourt further rendered a finding that the plaintiff, defendants 1 to3 and the mother of defendants 4 to 8 are equally entitled to get1/5th share. Consequently, the trial court held that the plaintiffand defendants 1 to 3 are entitled to get 1/5th share each anddefendants 4 to 8 are jointly entitled to get 1/5th share. In so faras the mesne profits claimed by the parties are concerned, the samewas 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 grantingonly 1/5th share, the plaintiff filed the above appeal seeking 6/5thshare each to the appellant and to the first respondent and 1/15thshare each to respondents 2 and 3 and deceased Chandrammal whoselegal heirs are respondents 4 to 8.20. Heard the learned counsel for the plaintiff/ appellant, thelearned counsel for the second defendant/ second respondent and thelearned counsel for the defendants 3 to 6/respondents 3 to 6 and 8.The first defendant/first respondent appeared in person and he wasalso heard by this court. https://hcservices.ecourts.gov.in/hcservices/

21. The learned counsel for the plaintiff/appellant submits thatthe suit property is the ancestral property and on the birth of theplaintiff and the first defendant they were entitled to get a shareeach with their father and therefore, all the three male members oftheir family are entitled to 1/3rd share. On the death of ThiruSomasundaram Chettiyar, on 31.8.1965, the Succession opened for his1/3rd share and therefore, the unamended Sec.6 of the HinduSuccession Act 1956 alone would govern the field. Accordingly, the1/3rd share of the deceased Somasundaram Chettiyar would devolve onall the legal heirs namely the plaintiff, defendants 1 to 3 and themother of defendants 4 to 8 equally. Therefore, according to thelearned counsel for the appellant, both the plaintiff and the firstdefendant are entitled to 1/15th share in that 1/3rd share and adding1/15th share to their 1/3rd share, both of them are entitled to6/15th share and the three daughters are entitled to 1/15th share.The learned counsel further urged that the Amendment Act came intoforce with effect from 20.12.2004 and therefore, it would not applyto the present case. He further contended that since the plaintiff'sfather passed away on 31.08.1965, the disposition had taken place byoperation of law and therefore, the daughters are not entitled toequal share as claimed by them. In support of his submissions, thelearned counsel for the plaintiff/appellant relied on the followingdecisions:1.2007(1) M.L.J. 797 (SC) (Sheela Devi and others Vs Lal Chand andanother)(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 Controllerof 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,Madras9.A.I.R. 1977 (SC) 500 (Madras Refineries Ltd. Vs Chief ControllingRevenue Authority, Board of Revenue, Madras) https://hcservices.ecourts.gov.in/hcservices/

22. Per contra, the learned counsel for the second respondentwould contend that the Hindu Succession (amended) Act 2005 came intoforce on 9.9.2005 during the pendency of the suit and even beforepassing of the preliminary decree. As per the amendment, thedaughters of a co-parcener are also given the same status equally tothat of the sons. According to the learned counsel for the secondrespondent, the newly amended Sec.6(1) of the Hindu Succession Actwould apply to the present case as no disposition, alienation orpartition of the property took place before 20.12.2004. He pointedout that the partition contemplated in that section is actualpartition by execution of deed of partition or partition effected bya decree of court. Therefore, the learned counsel submits that thereis no question of considering notional or deemed partition. It ishis contention that only when actual partition has taken place priorto 20.12.2004, the amended Act would not apply and in this case, asthere was no such partition prior to 20.12.2004, the trial court hascorrectly 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 sameis to be liberally interpreted to confer the benefits on thebeneficiary that is women.23. In support of his submissions, the learned counsel for thesecond 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, AndhraPradesh)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 andothers)8.1996(6) SCC 44 (Union of India and others Vs Dhanwanti Devi andothers)24. The learned counsel for the respondents 3 to 6 and 8 whileadopting the arguments made by the learned counsel for the secondrespondent, submitted that the amending provision is a beneficiallegislation to remove the ineqaulity between the two sexes.Therefore, he contends that the same is to be interpreted in such a https://hcservices.ecourts.gov.in/hcservices/ way that it gives benefit to women rather than depriving the propertyto them. Hence, he prayed for the dismissal of the appeal.25. The first defendant/first respondent appeared in person andsubmitted that he is adopting the arguments of his brother, theappellant herein and prays for allowing the appeal in so far as theallotment of shares to him and his brother by the trial court.26. I have considered carefully the submissions made on behalf ofthe parties. I have also gone through the entire documents availableon record.27. Now, it is not in dispute that the suit schedule property isan ancestral property of Thiru Somasundaram Chettiyar who diedintestate on 31.8.1965. It is also an admitted fact that his wifeTmt.Tirupurasundari Ammal breathed her last on 8.01.1998. It is alsoan admitted fact that the plaintiff and the defendants are the twosons of their deceased parents and defendants 2 and 3 and the motherof defendants 4 to 8 are the daughters of their parents. If thatbeing so, the only question that arises for consideration is whetherthe trial court has correctly decided the shares allotted to theplaintiff and the defendants by relying on the provision of theAmended Central Act 39 of 2005.28. Before proceeding further, it is useful to refer to the Sec.6of the unamended Hindu Succession Act, 1956"6. Devolution of interest in coparcenaryproperty- (1) When a male Hindu dies after the commencementof this Act, having at the time of his death aninterest in a Mitakshara coparcenary property, hisinterest in the property shall devolve bysurvivorship upon the surviving members of thecoparcenary and not in accordance with this Act.Provided that, if the deceased had left himsurviving a female relative specified in class I ofthe Schedule or a male relative specified in thatclass who claims through such female relative, theinterest of the deceased in the Mitaksharacoparcenary property shall devolve by testamentary orintestate succession, as the case may be, under thisact and not by survivorship.Explanation 1- For the purpose of this section, theinterest of a Hindu Mitakhara coparcener shall bedeemed to be the share in the property that wouldhave been allotted to him if a partition of the https://hcservices.ecourts.gov.in/hcservices/ property had taken place immediately before hisdeath, irrespective of whether he was entitled toclaim partition or not.Explanation 2- Nothing contained in the provision tothis section shall be construed as enabling a personwho has separated himself from the coparcenary beforethe death of the deceased or any of his heirs toclaim on intestacy a share in the interest referredto therein."29. After amendment, the very same section, now, reads as under:"On and from the commencement of the HinduSuccession (Amendment) Act, 2005, in a Joint Hindu familygoverned by the Mitakshara law, the daughter of acoparcener shall,-(a) by birth become a coparcener in her own right inthe same manner as the son;(b) have the same rights in the coparcenary propertyas she would have had if she had been a son;(c) be subject to the same liabilities in respect ofthe said coparcenary property as that of a son,and any reference to a Hindu Mitakshara coparcener shallbe deemed to include a reference to a daughter of acoparcerner;Provided that nothing contained in this sub-sectionshall affect or invalidate any disposition or alienationincluding any partition or testamentary disposition ofproperty which had taken place before the 20th day ofDecember, 2004.(2)Any property to which a female Hindu becomesentitled by virtue of sub-section (1) shall be held byher with the incidents of coparcenary ownership and shallbe regarded, notwithstanding anything contained in thisAct, or any other law for the time being in force, asproperty capable of being disposed of by her bytestamentary disposition.(3)Where a Hindu dies after the commencement ofthe Hindu Succession (Amendment) Act, 2005, his interestin the property of Joint Hindu family governed by theMitakshara law, shall devolve by testamentary orintestate succession, as the case may be, under this Actand not by survivorship, and the coparcenary property https://hcservices.ecourts.gov.in/hcservices/ shall be deemed to have been divided as if a partitionhad taken place and, (a) the daughter is allotted the same share as isallotted to a son;(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they beenalive at the time of partition, shall be allotted to thesurviving 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 childwould have got had he or she been alive at the time ofthe partition, shall be allotted to the child of suchpre-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, theinterest of a Hindu Mitakshara coparcener shall be deemedto be the share in the property that would have beenallotted to him if a partition of the property had takenplace immediately before his death, irrespective ofwhether he was entitled to claim partition or not.(4) After the commencement of the Hindu Succession(Amendment) Act, 2005, no Court shall recognise any rightto proceed against a son, grandson or great-grandson forthe recovery of any debt due from his father, grandfatheror great-grandfather solely on the ground of the piousobligation under the Hindu law, of such son,grandson orgreat-grandson to discharge any such debt:Provided that in the case of any debt contractedbefore 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 againstthe son, grandson or great-grandson, as the case may be;or (b) any alienation made in respect of or insatisfaction of, any such debt, and any such right oralienation shall be enforceable under the rule of piousobligation in the same manner and to the same extent asit would have been enforceable as if the Hindu Succession(Amendment) Act, 2005 had not been enacted. https://hcservices.ecourts.gov.in/hcservices/ Explanation: For the purposes of clause (a), theexpression "son", "grandson" or "great-grandson" shall bedeemed to refer to the son, grandson or great-grandson,as the case may be, who was born or adopted prior to thecommencement of the Hindu Succession (Amendment) Act,2005.(5) Nothing contained in this section shall apply toa partition, which has been effected before the 20th dayof December, 2004. Explanation: For the purposes of this section"partition"means any partition made by execution of a deed ofpartition duly registered under the Registration Act,1908 (16 of 1908) or partition effected by the decree ofa Court."30. According to the plaintiff and the first defendant, thedaughters i.e. their sisters could not take advantage of the amendedAct as their father died on 31.8.1965 and on that day, the successionhas opened and the suit property attracted disposition by operationof law. Therefore, it is their case that when their father passedaway as early as on 31.08.1965, it is not open to the daughters torely on the amendment Act to contend that they are entitled to ashare in the property as they have become coparceners in their ownright in the same manner as the sons. This was sought to bedisproved by the daughters by contending that there was nodisposition or alienation including any partition or testimonydisposition of the property in this case before 20.12.2004 andtherefore, the proviso to Sec.6(1) will not get attracted. It istheir further case that the partition contemplated in Sec.6(1) asdefined in sub clause 5, according to which, partition means anypartition made by execution of a Deed or partition effected by adecree of court. Since there was no such partition in the presentcase, it is their case that the new Act would apply and the trialcourt has correctly held that they are entitled to equal share intheir own rights as coparceners.31. Before considering the rival contentions, let me consider thedecisions relied on by the counsel appearing for the parties.32. In (2007)1 M.L.J. 797 (SC) (cited supra), the Hon'ble SupremeCourt observed as under:"19. The Act indisputably would prevail overthe old Hindu Law. We may notice that theParliament, with a view to confer right upon thefemale heirs, even in relation to the joint familyproperty, enacted Hindu Succession Act, 2005. Sucha provision was enacted as far back in 1987 by the https://hcservices.ecourts.gov.in/hcservices/ State of Andhra Pradesh. The succession havingopened in 1989, evidently, the provisions ofAmendment Act, 2005 would have no application. Sub-section (1) of Section 6 of the Act governs the lawrelating to succession on the death of a coparcenerin the event the heirs are only male descendants.But, proviso appended to sub-section (1) of Section6 of the act creates an exception. First son ofBabu Lal viz., Lal Chand, was, thus, a coparcener.Section 6 is exception to the general rules. Itwas, therefore, obligatory on the part of theplaintiffs-respondents to show that apart from lalChand, Sohan Lal will also derive the benefitthereof. So far as the second son Sohan Lal isconcerned, no evidence has been brought on recordsto show that he was born prior to coming into forceof Hindu Succession Act, 1956."33. It is no doubt true that the Hon'ble Supreme Court in theabove decision has clearly observed that the Amendment Act 2005 wouldhave no application in that case as the Succession having opened in1989 when the father in that case passed away.34. This decision was very much relied on by the learned counselfor the plaintiff/appellant as in this case also, the father passedaway as early as on 31.08.1965 and therefore, the succession hasalready opened in 1965 itself.35. Per contra, the learned counsel for the second respondentsubmits that this decision is not a binding precedent for theproposition that the Hindu Succession (Amendment) Act, 2005 will haveno application in cases where the succession has opened prior toDecember 2004. According to him, the above observation made by theHon'ble Supreme Court is not a ratio Decidendi as the issue beforethe Hon'ble Supreme Court was whether the provisions of Sec.8 of theHindu Succession Act, 1956 would apply or whether the law applicableprior to 1956 Act would apply to the facts of the case.36. In A.I.R. 2008 MDS 250 (cited supra), a Division Bench ofthis Court held as under:"13. A careful reading of Section 6(1) read with6(3) of the Hindu Succession (Amendment) Act clearlyindicates that a daughter can be considered as acoparcener only if her father was a coparcener at thetime of coming into force of the amended provision.It is of course true that for the purpose ofconsidering whether the father is a coparcener ornot, the restricted meaning of the expression"partition" as given in the explanation is to beattributed. https://hcservices.ecourts.gov.in/hcservices/

14. In the present case, admittedly the fatherof the present petitioners had expired in 1975.Sec.6(1) of the act is prospective in the sense thata daughter is being treated as coparcener on and fromthe commencement of the Hindu Succession (Amendment)Act, 2005. If such provision is read along withSec.6(3), it becomes clear that if a Hindu dies aftercommencement of the Hindu Succession (Amendment) Act,2005, his interest in the property shall devolve notby survivorship but by intestate succession ascontemplated in the act.15. In the present case, the death of the fatherhaving taken place in 1975, succession itself openedin the year 1975 in accordance with the existingprovisions contained in Sec.6. If the contention ofthe petitioners is accepted, it would amount togiving retrospective effect to the provisions ofSection 6 as amended in 2005. On the death of thefather in 1975, the property had already vested withClass-I heirs including the daughters as contemplatedin the unamended Sec.6 of the Act. Even though theintention of the amended provision is to conferbetter rights on the daughters, it cannot be stressedto the extent of holding that the succession whichhad opened prior to coming into force of the amendedAct are also required to be re-opened. In thisconnection, we are also inclined to refer to thedecision of M.Srinivasan, J. as His Lordship thenwas, reported in 1991(2) M.L.J.199 (Sundarambal andothers V. Deivanaayagam and others). Whileinterpreting almost a similar provision, as containedin Section 29-A of the Hindu Succession Act, asintroduced by the Tamil Nadu Amendment Act 1 of 1990,the learned Single Judge had made the followingobservations:-"14.... Under sub-clause (1), the daughter of acoparcener shall become a coparcener in her own rightby birth, thus enabling all daughters of a coparcenerwho were born even prior to 25th March, 1989 tobecome coparceners. In other words, if a male Hinduhas a daughter born on any date prior to 25th March,1989, she would also be a coparcener with him in thejoint family when the Amendment came into force. Butthe necessary requisite is, the male Hindu shouldhave been alive on the date of the coming into forceof the Amended Act. The section only makes adaughter a coparcener and not a sister. If a maleHindu had died before 25th March, 1989 leaving https://hcservices.ecourts.gov.in/hcservices/ coparcenary property, then his daughter cannot claimto be a coparcener in the same manner as a son, as ,on the date on which the Act came into force, herfather was not alive. She had the status only as asister-a-vis her brother and not a daughter on thedate of the coming into force of the AmendmentAct....."37. In the above decision, the very same question arises forconsideration before this Court as to the applicability of the HinduSuccession Act to the facts of that case. After considering Sec.6(1)read with Sec.6(3) of the Hindu Succession Act, the Division Benchheld that as the father of the petitioners expired in 1975, it becamevery clear that the succession itself opened in the year 1975 inaccordance with the existing provisions contained in Sec.6.Therefore, the property had already vested with clause (1) heirsincluding daughters as contemplated in the unamended Sec.6 of theAct. Hence, the Division Bench held that the amended Sec.6 isprospective in nature and as the father died in 1975 itself, thesuccession would not be reopened to confer better rights on daughtersas per the amended Sec.6.38. This judgment by the Division Bench decided an identicalquestion which is binding on me and I have to necessarily follow thesame while deciding the issue involved in this appeal on the factsand circumstances of the present case.39. In 2008(4) C.T.C. 773 (cited supra), this Court observed asunder:"6. In the plaint, it is stated that the fatherof the plaintiffs died about thirty years prior tothe filing of the suit. The second plaintiff asP.W.1 has deposed that their father died in the year1968. The Amendment Act 39 of 2005 amending Section6 of the Hindu Succession Act, 1956 came into forceon 9.9.2005 and it conferred right upon female heirsin relation to the joint family property. Thecontention put forth by the learned counsel for theappellant is that the said Amendment came into forcepending disposal of the Suit and hence theplaintiffs are entitled to the benefits conferred bythe Amending Act. The Amending Act declared thatthe daughter of the coparcener shall have the samerights in the coparcenery property as she would havehad if she had been a son. In other words, thedaughter of a coparcener in her own right has becomea coparcener in the same manner as the son insofaras the rights in the coparcenery property areconcerned. The question is as to when succession https://hcservices.ecourts.gov.in/hcservices/ opened insofar as the present suit properties areconcerned. As already seen, the father of theplaintiffs died in the year 1968 and on the date ofhis death, the succession had opened to theproperties in question. In fact, the Supreme Courtin 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 thelaw as follows:"19. The Act indisputably would prevail overthe old Hindu Law. We may notice that theParliament, with a view to confer right upon thefemale heirs, even in relation to the joint familyproperty, enacted Hindu Succession Act, 2005. Sucha provision was enacted as far back in 1987 by theState of Andhra Pradhesh. The succession havingopened in 1989, evidently, the provisions ofAmendment Act, 2005 would have no application."In view of the above statement of law by the ApexCourt, the contention of the appellant is devoid ofmerit. The succession having opened in the year1968, the Amendment Act 39 of 2005 would have noapplication to the facts of the present case. Noother contention was advanced by the counsel for theappellant."40. In the above judgment also, a learned Single Judge of thisCourt held that as the father of the plaintiffs in that case died inthe year 1968, on the date of his death, the succession has opened tothe properties in question. Therefore, it was reiterated that thesuccession having opened in the year 1968, the Amendment Act 39 of2005 would have no application to the facts of that case.41. In 1997(10) SCC 684 (cited supra), the Hon'ble Supreme Courtheld as under:"12. The word “survivor” usually applies to thelongest lives of two or more partners or trustees,and has been applied in some cases to the longestliver or joint tenants and legatees, and to othershaving a joint interest in any property. 13. Here, we are concerned with ManjunathaGowda who had obtained property at a partition withcoparceners. Survivorship, therefore, is the livingof one of two or more persons after the death of theothers having interest to succeed in the property bysuccession. The shares in the coparcenary property https://hcservices.ecourts.gov.in/hcservices/ changes with death or birth of other coparceners.However, in the case of survivorship it is not ofthe same incidence. He received the property at thepartition without there being any other coparcener.It is an individual property and, therefore, he didnot receive it by survivorship but by virtue of hisstatus being a coparcener of the Hindu Joint Familyalong with his father and brothers.14. Under these circumstances, the conclusionreached by the High Court that since it is bypartition, not by survivorship, clause (d) of sub-section (1) of Section 8 does not get attracted, isnot (sic) correct. No doubt, the learned counselrelied upon the judgment of this Court in NagendraPrasad v. Kempananjamma1 which was also consideredby the High Court in the impugned judgment. ThisCourt therein has explained that the object ofSection 8(1)(d) is to give a right to claim a sharein the joint family property to all females referredto in clauses (a) to (c) thereof. Merely becausepartition by one of the coparceners under clauses(a) to (c) is a condition for a class of familymembers entitled to a share in the property, it doesnot apply to a case where class of family membersentitled under clause 8(1)(d) since it standsaltogether on a different footing and, therefore,partition is not a condition precedent for claiminga share by a class of family members enumerated inSection 8(1)(a) of the Act. But that principle hasno bearing to the facts in this case for the reasonthat the property held was not received bysurvivorship."42. In 2006 A.I.R. SCW 5063 (cited supra), the Hon'ble SupremeCourt held as under:"11. Thus we hold that according to Section 6of the Act when a coparcener dies leaving behind anyfemale relative specified in Class I of the Scheduleto the Act or male relative specified in that classclaiming through such female relative, his undividedinterest in the Mitakshara coparcenary propertywould not devolve upon the surviving coparcener, bysurvivorship but upon his heirs by intestatesuccession. Explanation 1 to Section 6 of the Actprovides a mechanism under which undivided interestof a deceased coparcener can be ascertained and,i.e., that the interest of a Hindu Mitaksharacoparcener shall be deemed to be the share in the https://hcservices.ecourts.gov.in/hcservices/ property that would have been allotted to him if apartition of the property had taken placeimmediately before his death, irrespective ofwhether he was entitled to claim partition or not.It means for the purposes of finding out undividedinterest of a deceased co-parcener, a notionalpartition has to be assumed immediately before hisdeath and the same shall devolve upon his heirs bysuccession which would obviously include thesurviving coparcener who, apart from the devolutionof the undivided interest of the deceased upon himby succession, would also be entitled to claim hisundivided interest in the coparcenary property whichhe could have got in notional partition.12. In the case on hand, notional partition ofthe suit properties between Nagarmal and his adoptedson Nemi Chand has to be assumed immediately beforethe death of Nagar Mal and that being so Nagar Mal'sundivided interest in the suit property, which washalf, devolved on his death upon his three children,i.e., the adopted son Nemi Chand and the twodaughters who are plaintiffs in equal proportion.Nemi Chand, the adopted son, would get half of theentire property which right he acquired on the dateof adoption and one third of the remaining halfwhich devolved upon him by succession as statedabove. This being the position, each of the twoplaintiffs was not entitled to one-third share inthe suit property, but one-sixth and the remainingproperties would go to the adopted son, Nemi Chand.13. Undisputedly, the suit properties in thehands of Nagar Mal were ancestral one in which hisson Nemi Chand got interest equal to Nagar Mal afterhis adoption and from the date of adoption, acoparcenary was constituted between the father andthe adopted son. Upon the death of Nagar Mal, theproperty being ancestral; the half undividedinterest of Nagar Mal therein devolved by rule ofsuccession upon his three heirs, including NemiChand. This being the position each of thedaughters would be entitled to one-sixth share inthe suit properties and the remaining would go tothe heirs of Nemi Chand, since deceased."43. In the above decision also, the Hon'ble Supreme Court heldthat notional partition of the suit properties has to be assumedbefore death and accordingly the shares are to be allotted to thesons and daughters. https://hcservices.ecourts.gov.in/hcservices/

44. In 2007(4) TLNJ 535 (civil), cited supra, this Court heldas under:"14. On the facts of this case, ChennimalaiGounder died on 23.6.2004, the date on which notionalpartition 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. Onthe pleadings, it is clear that the final decree hasbeen passed as early as on 11.8.1989. Admittedly,the plaintiffs have got married in the years 1965 and1970 respectively. In these circumstances, as perlaw which is relied upon by the plaintiffs, theplaintiffs are not entitled to larger share since theAmendment Act is prospective in nature and there isno question of enlargement of devolution of share tothe plaintiffs. When that is so, the amendment hasto be necessarily rejected. In such circumstances,the reliance placed by the learned counsel for thepetitioners on the judgement of this Court in Jothiv. Kumaravel (2007 (3)MLJ 64) that amendment underOrder VI, Rule 17 can be effected at any time evenafter commencement of trial, has no application.15. As correctly pointed out by the learnedcounsel for the respondents, the Supreme Court hasheld in Sheela Devi v. Lal Chand [(2007) 1 MLJ 797(SC)], if succession has opened prior to HinduSuccession (Amendment) Act, 2005, the provisions ofAmendment Act would have no application. It is basedon the ratio decidendi given by the Supreme Court inthe said judgement, the learned trial Judge hasrejected the application for amendment on the groundthat Chennimalai Gounder died on 23.6.2004. But acareful reading of the said jugement shows that inthat case the High Court was required to determine asto whether the provisions of Section 8 of the Actwould apply to the facts of the said case or the lawprior to the enforcement of 1956 Act would apply.The High Court having held that the nature of theprayer must be regarded as a Hindu coparcenery and assuch the law applicable before the Act came intoeffect would govern the rights of the parties and nothe provisions of the Act. It was in thosecircumstances, the Supreme Court held that if thesuccession is opened before the Amendment Act cameinto existence, the Amendment Act, 2005 would have noapplication. The Supreme Court further held asfollows: https://hcservices.ecourts.gov.in/hcservices/ "19. The Act indisputably would prevailover the old Hindu Law. We may notice that theParliament, with a view to confer right upon thefemale heirs, even in relation to the joint familyproperty, enacted Hindu Succession Act, 2005. Such aprovision was enacted as far back in 1987 by theState of Andhra Pradesh. The succession havingopened in 1989, evidently, the provisions ofAmendment Act, 2005 would have no application. Sub-section (1) of Section 6 of the Act governs the lawrelating to the succession on the death of acoparcener in the event the heirs are only maledescendants. But, proviso appended to Sub-section(1) of section 6 of the Act creates an exception.First son of Babulal, viz., Lalchand, was thus, acoparcener. Section 6 is exception to the generalrules. It was, therefore, obligatory on the part ofthe plaintiffs/respondents to show that apart fromLalchand, Sohan Lal will also derive the benefitthereof. So far as the second son Sohan Lal isconcerned, no evidence has been brought on record toshow that he was born prior to coming into force ofHindu Succession Act, 1956".16. In any event, in as much as under theamended provision, especially the provisos to section6(1) and 6(5) of the Act, any partition effectedbefore 20th December, 2004 has been saved and on thefacts of the case as it is narrated in the writtenstatement that in the partition suit there has been afinal decree passed on 11.8.1999 itself and on thebasis of memo of compromise filed in whichChennimalai Gounder, who was a coparcener, ultimatelydied on 23.6.2004. Even as per the explanation,notional partition has taken effect from the date ofhis death, viz., 23.6.2004 before which time thepartition has already been effected by way of finaldecree and therefore, as rightly pointed out by thelearned trial Judge, there is no substance in thecontention of the petitioners that by advent of law,viz., by way of amendment, the division of sharesgets enlarged. In view of the same, there is noillegality or irregularity in the order of thelearned trial Judge and the revision fails and thesame is dismissed. No costs. Connectedmiscellaneous petition is closed."45. In the above case, the plaintiff's father passed away on23.6.2004 and therefore, this court held that a notional partitionhas taken place before 20.12.2004. Hence, this court held that the https://hcservices.ecourts.gov.in/hcservices/ plaintiffs are not entitled to larger share since the Amendment Actis prospective in nature and there is no question of enlargement ofdevolution of shares to the plaintiffs.46. In 2007(4) TLNJ 237 (Civil) (cited supra), this court whileconsidering the Tamilnadu Amendment Act 1989, observed as under:"11. The law is settled that if the partitionhad been effected before the Amendment Act came intoforce, the daughter even though unmarried, is notentitled for a share in the family property. It isseen that in the cases decided by the Apex Court andby the Division Bench of this Court, the daughter ofa coparcener became a coparcener in her own right,since the coparcener was alive on the date of cominginto force of the Amendment Act and in thosecircumstances, when a partition was not effected, itis held that unmarried daughter shall becomecoparcener in the same manner as a son. In thepresent case, Palani Gounder died on 27.3.1975, wellbefore the coming into force of the Tamil NaduAmendment Act 1/1990, namely, 25.3.1989 and hence theplaintiff, viz., his unmarried daughter, cannot claimto be a coparcener in the same manner as a son as onthe date of coming into force of the Amendment Act.The finding of the Trial Court that the plaintiff isnot entitled to the benefit conferred in Tamil NaduAmendment Act 1/1990, is correct and proper. Hence,the plaintiff is not entitled for a decree forpartition as prayed for. The points are answeredagainst the appellant."47.In (1968) Vol.69 ITR 342 (cited supra), the Division Benchof this court, while considering the Estate Duty Act, 1953, observedas under:"The word "disposition" is not defined in theAct but there is no positive indicia in the Act toshackle the popular meaning of the word. It has awide connotation and is used only as expressive ofany transfer inter vivos or by operation of law. Asettlement is illustrative of the species ofdisposition known to law but cannot be an equationthereof and is certainly not exhaustive. Thoughdisposition includes a settlement, settlement is notthe only way to dispose. A sale is comprehended inthe expression "disposition" in section 27 of theEstate Duty Act, 1953." https://hcservices.ecourts.gov.in/hcservices/

48.In AIR 1977 SC 500 (cited supra), the Hon'ble Supreme Courtwhile considering the Stamp Act, 1899, observed as under:"The term "disposition" has been defined inStroud's Judicial Dictionary as a devise "intended tocomprehend a mode by which property can pass whetherby act of parties or by an act of the law" and"includes transfer and charge of property." As theGuarantee Agreement did not have any such effect. Itdid not constitute a "settlement" also. Thatdocument was not therefore an instrument of sale,mortgage or settlement and did not fall within thepurview of sub-section (1) Section 4 of the Act."49. The above judgments were cited on behalf of the appellant tosubmit that as per Sec.6(1) of the Amendment Act 2005, nothingcontained in the sub-section shall affect or invalidate thedisposition that had taken place prior to 20.12.2004 and in thiscase, the disposition took place on 31.8.1965 when ThiruSomansundaram passed away. It is the case of the appellant that theterm "disposition" is an inclusive term and it cannot be given arestricted meaning.50.In 1991(3) SCC 647 (cited supra), the Hon'ble Supreme Courtwhile considering Sec.29-A(iv) and (ii), of the Hindu Succession Act1956 (as amended by the Hindu Succession AP Amendment Act 1986) heldas under:"7. The question that falls for ourconsideration is whether the preliminary decree hasthe effect of depriving respondents 2 to 5 of the benefits of the amendment. The learned counsel placedreliance on clause (iv) of Section 29-A to supporthis contention that it does. Clause (ii) of thesection provides that a daughter shall be allottedshare like a son in the same manner treating her tobe a son at the partition of the joint familyproperty. However, the legislature was conscious thatprior to the enforcement of the amending Act,partitions will already have taken place in somefamilies and arrangements with regard to thedisposition of the properties would have been madeand marriage expenses would have been incurred etc.The legislature, therefore, did not want to unsettlethe settled positions. Hence, it enacted clause (iv)providing that clause (ii) would not apply to adaughter married prior to the partition or to apartition which had already been effected before thecommencement of the amending Act. Thus if prior tothe partition of family property a daughter had been https://hcservices.ecourts.gov.in/hcservices/ married, she was dis-entitled to any share in theproperty. Similarly, if the partition had beeneffected before September 5, 1985 the date on whichthe amending Act came into force, the daughter eventhough unmarried was not given a share in the familyproperty. The crucial question, however, is as towhen a partition can be said to have been effectedfor the purposes of the amended provision. Apartition of the joint Hindu family can be effectedby various modes, viz., by a family settlement, by aregistered instrument of partition, by oralarrangement by the parties, or by a decree of thecourt. When a suit for partition is filed in a court,a preliminary decree is passed determining shares ofthe members of the family. The final decree follows,thereafter, allotting specific properties anddirecting the partition of the immovable propertiesby metes and bounds. Unless and until the finaldecree is passed and the allottees of the shares areput in possession of the respective property, thepartition is not complete. The preliminary decreewhich determines shares does not bring about thefinal partition. For, pending the final decree theshares themselves are liable to be varied on accountof the intervening events. In the instant case, thereis no dispute that only a preliminary decree had beenpassed and before the final decree could be passedthe amending Act came into force as a result of whichclause (ii) of Section 29-A of the Act becameapplicable. This intervening event which gave sharesto respondents 2 to 5 had the effect of varyingshares of the parties like any superveningdevelopment. Since the legislation is beneficial andplaced on the statute book with the avowed object ofbenefitting women which is a vulnerable section ofthe society in all its stratas, it is necessary togive a liberal effect to it. For this reason also, wecannot equate the concept of partition that thelegislature has in mind in the present case with amere severance of the status of the joint familywhich can be effected by an expression of a mere desire by a family member to do so. The partitionthat the legislature has in mind in the present caseis undoubtedly a partition completed in all respectsand which has brought about an irreversiblesituation. A preliminary decree which merely declaresshares which are themselves liable to change does notbring about any irreversible situation. Hence, we areof the view that unless a partition of the propertyis effected by metes and bounds, the daughters cannot https://hcservices.ecourts.gov.in/hcservices/ be deprived of the benefits conferred by the Act. Anyother view is likely to deprive a vast section of thefair sex of the benefits conferred by the amendment.Spurious family settlements, instruments ofpartitions not to speak of oral partitions willspring up and nullify the beneficial effect of thelegislation depriving a vast section of women of itsbenefits."51. The above judgment was very much relied on by the learnedcounsel for the second respondent to drive home the point that whenthe Amendment Act came into force during the pendency of theproceedings before the trial Court and prior to passing of the finaldecree, the act would be made applicable and daughters are entitledto their shares in the family property. But, this was sought to bedifferentiated by the learned counsel for the appellant by submittingthat the decision would not apply to the facts of the present case asin the above decision rendered by the Hon'ble Supreme Court, thefather of the family continued to live in co-parcenery when the APAmendment Act came into force.52.In 2007(3) MLJ 1029 (cited supra), a Division Bench of thisCourt while considering Sec.23 of the Hindu Succession Act, in thelight 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 thereis nothing on record to prove that in fact his motherhad married the deceased. Once it is found thatRamesh is not a heir and the property is required tobe divided among five children, namely, one son andfour daughters, the question of applicability ofSection 23 of the Act would in normal course arisefor consideration. Since Sekar is the only maleheir, the question of partition of the property amongthe male heirs obviously cannot arise as has beenobserved by the Supreme Court in Narashimaha Murthyv. Smt. Susheelabai and Others AIR 1996 SC 1826:(1996) 3 SCC 644: JT 1996 (4) SC 300 and therefore ifSection 23 would be applicable, daughters cannotclaim partition of the dwelling house, which wasadmittedly in the occupation of Sekar. However, itis to be noticed that Section 23 has been omitted bythe Hindu Succession (Amendment)Act, 2005 (Act 39 of2005) with effect from 9.9.2005. It is no doubt truethat such amendment has come into force duringpendency of the appeal. However, even assuming thatthere was any embargo at the time of filing the suitor passing the judgment by the learned single Judgeas contemplated under Section 23 of the Act as it https://hcservices.ecourts.gov.in/hcservices/ stood,in view of the amendment and deletion of suchprovision, it is obvious that there is no suchembargo after 9.9.2005. In other words, after9.9.2005, any female heir can seek for partition evenin respect of a dwelling house. This subsequentevent arising out of change in law is obviously to beapplied and therefore, the question of applying barunder Section 23 of the Act no longer arises forconsideration."53. In the above decision, the Division Bench after noticingthat Sec.23 has been omitted by the Hindu Succession Amendment Act2005 with effect from 9.9.2005 and such amendment has come into forceduring the pendency of the appeal, held that after 9.9.2005, anyfemale heir can seek for partition event in respect of a dwellinghouse and this subsequent event arising out change in law isobviously to be applied and therefore, the question of applying barunder Sec.23 of the Act no longer arises for consideration.54. In 2009(2) CTC 130 (cited supra), this Court observed asunder:"6. At the hearing, the learned counsel for theappellant appropriately and appositely, correctlyand convincingly drew the attention of this Court tothe recent amendment to the Hindu Succession(Amendment) Act, 2005 (39 of 2005) deleting Section23 of the Act. No doubt the amendment Act shallhave prospective effect, but practically if thematter is viewed, it is clear that as per the HinduSuccession (Amendment) Act, 2005 the plaintiff isentitled to partition of the dwelling house propertyalso and such an amendment has come into vogueduring the pendency of the Appeal. The Appeal isdeemed to be in continuation of the Suitproceedings. It would be a mere hyper-technicalityif the appellant/plaintiff is driven to the extentof filing a fresh Suit invoking the said recentHindu Succession (Amendment) Act 2005 (39 of 2005)and in such a case, I am having no hesitation inconstruing that in this case the erstwhile Section23 is having no application and accordinglypartition could be ordered in respect of the 1/8thshare of the plaintiff."55. Relying on the above judgments, the learned counsel for thesecond respondent vehemently contended that similarly the subsequentevent arising in Sec.6(1) of the Hindu Succession Act in view of theAmendment Act 2005 is to be applied in the present case also. https://hcservices.ecourts.gov.in/hcservices/

56.In 1970(2) SCC 390 (cited supra), the Hon'ble Supreme Courtwhile considering the provisions of Gift Tax Act 1958, observedas under:"10. Mr B. Sen, learned counsel for thedepartment contended that the said act should beconsidered as a “disposition” under the main part ofSection 2 (xxiv). The word “disposition” is not aterm of law. Further it has no precise meaning. Itsmeaning has to be gathered from the context in whichit is used. In the context in which that term isused in Section 2 (xxiv), it cannot mean to “disposeof”. Otherwise even if a man abandons or destroyshis property, it would become a “gift” under theAct. That could not have been the intention of thelegislature. In Section 2 (xxiv), the word“disposition” is used along with words “conveyance,assignment, settlement, delivery, payment or otheralienation of property”. Hence it is clear from thecontext that the word “disposition” therein refersto a bilateral or a multi-lateral act. It does notrefer to a unilateral act."57.In 2009(2) CTC 324 (cited supra), the Hon'ble Supreme Courtwhile considering the provisions of Stamp Act 1899, held as under:"It is thus evident that not only instrumentswhich are non-testamentary dispositions of propertyfor any religious or charitable purpose, but alsodeclarations of trust which record the terms of suchdisposition, are settlements. 'Disposition' is aterm of wide import which encompasses any devise ormode by which property can pass and includes givingaway or giving up by a person of something which washis own (see: The Commissioner of Gift Tax Madras v.N.S. Getty Chettiar, AIR 1971 SC 240, and TheCollector of Estate Duty Andhra Pradesh v. KancharlaKesava Rao, AIR 1973 SC 2485). This Court has alsoheld that the word "disposition" refers to abilateral or multilateral act of transfer and willnot apply to a unilateral act as, for example, whena person treats his individual property as a jointfamily property. (See: Goli Eswariah v. Commissionerof Gift Tax, AIR 1970 SC 1722). Black's LawDictionary defines "disposition" as the act oftransferring something to the care or possession ofanother; or relinquishment or giving up ofproperty". https://hcservices.ecourts.gov.in/hcservices/

58. In 2005(6) SCC 622 (cited supra), the Hon'ble Supreme Courtobserved as under:"10. As per Section 6 of the Hindu SuccessionAct, if a male Hindu dies after commencement of thisAct, an interest in a Mitakshara coparcenaryproperty shall devolve by survivorship upon thesurviving members of the coparcenary and not inaccordance with the Act. So far as the present caseis concerned, the concurrent finding of the fact isthat the deceased Ramasami Konar was governed byMitakshara law and the property was the coparcenaryproperty. But he died intestate. Therefore, as perSection 6, the property shall devolve bysurvivorship upon the surviving members of thecoparcenary and not by Section 6 of the Act and atthe same time there is proviso to the section whichqualifies the main section that if the deceased lefta surviving female relative specified in Class I ofthe Schedule or a male relative specified in thatclass who claims through such female, the interestof the deceased in Mitakshara coparcenary propertyshall devolve by testamentary or intestatesuccession, as the case may be and not bysurvivorship."59. Relying on the above judgments, it was argued that the term"disposition" contemplated in the Amendment Act, has no precisemeaning and it means vesting the property by physical transfer or byoperation of law by bi-lateral act of parties and it does not referto a notional or deemed partition which is not a bilateral act.60.In 2004(3) MLJ 620 (cited supra), a Division Bench of thiscourt while considering Sec.29(A) of the Hindu Succession Act 1956,in the light of the Tamilnadu Amendment Act 1 of 1990, observed asunder:"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 specialstatutory right to daughters in a Hindu undividedfamily and a daughter of a Hindu, if not marriedbefore the commencement of the Hindu Succession(Tamil Nadu Amendment) Act 1989, is treated as acoparcener subject to certain conditions containedin Sec.29-A of the Hindu Succession Act, but herrights are equal to that of a son in the Hindufamily and she is regarded as a coparcener with aright by birth in the family properties. Sec.29-Abegins with the non obstante Clause, https://hcservices.ecourts.gov.in/hcservices/ 'notwithstanding anything contained in Sec.6 of thisAct' which clearly indicates that the provisions ofSec.29-A would override the provisions of Sec.6 ofthe Hindu Succession Act.18. It is true that in considering the pointas to her share in the coparcenary properties, ifan unmarried daughter born before the date ofcommencement of the Hindu Succession (Tamil NaduAmendment) Act, 1989 is regarded as a coparcenerfrom the date of her birth, any alienation or giftof the family properties by another coparcenerduring the interregnum period from the date of herbirth till the date of commencement of the TamilNadu Amendment Act, 1989 may be exposed to challengeby the daughter, but that is not a ground to denythe right by birth granted under Sec.29-A of theHindu Succession act to an unmarried daughter. Weare of the view that Sec.29-A is a special provisiongiving a statutory right to a daughter treating heras a coparcener in the family and if such right bybirth is given to the daughter, it must mean thatshe gets the right by birth in the family propertiesfrom the date of her birth and it is not a rightthat would accrue only on the commencement of theTamil Nadu Amendment Act, 1989. As already held byus, though Sec.29-A of the Hindu Succession Act isprospective in operation, it takes note of theevents that happened prior to the insertion ofSec.29-A of the Hindu Succession Act in itsoperation. Therefore, we are of the view that ifany alienation or gift of immovable property wasmade by the sole surviving coparcener or the Karthaof the family during the interregnum period from thedate of birth of a daughter till the date ofcommencement of the Tamil Nadu Amendment Act, 1989,such an alienation or gift of the family property isliable to be questioned by an unmarried daughter asif she is a coparcener, but we are of the view thatthe ground of challenge would be limited and theCourt would be considering the question of validityof any alienation or transfer made by the saidcoparcener in the light of the provisions of Sec.29-A of the Act that the daughter became a coparceneronly by virtue of that Section which was insertedsubsequent to such alienation or transfer."61. Relying on the above decision, the learned counsel for thesecond respondent submits that by the Amendment Act, a specialprovision has been added giving statutory rights to daughters and she https://hcservices.ecourts.gov.in/hcservices/ gets the right by birth in the family properties from the date of herbirth 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 whethersolatium and interest would be payable under theAct, at the outset, we will dispose of the objectionraised by Shri Vaidyanathan that Hari Krishan Khoslacase2 is not a binding precedent nor does it operateas ratio decidendi to be followed as a precedent andis per se per incuriam. It is not everything said bya Judge while giving judgment that constitutes aprecedent. The only thing in a Judge’s decisionbinding a party is the principle upon which the caseis decided and for this reason it is important toanalyse a decision and isolate from it the ratiodecidendi. According to the well-settled theory ofprecedents, every decision contains three basicpostulates—(i) findings of material facts, directand inferential. An inferential finding of facts isthe inference which the Judge draws from the direct,or perceptible facts; (ii) statements of theprinciples of law applicable to the legal problemsdisclosed by the facts; and (iii) judgment based onthe combined effect of the above. A decision is onlyan authority for what it actually decides. What isof the essence in a decision is its ratio and notevery observation found therein nor what logicallyfollows from the various observations made in thejudgment. Every judgment must be read as applicableto the particular facts proved, or assumed to beproved, since the generality of the expressionswhich may be found there is not intended to beexposition of the whole law, but governed andqualified by the particular facts of the case inwhich such expressions are to be found. It would,therefore, be not profitable to extract a sentencehere and there from the judgment and to build uponit because the essence of the decision is its ratioand not every observation found therein. Theenunciation of the reason or principle on which aquestion before a court has been decided is alonebinding as a precedent. The concrete decision aloneis binding between the parties to it, but it is theabstract ratio decidendi, ascertained on aconsideration of the judgment in relation to thesubject-matter of the decision, which alone has theforce of law and which, when it is clear what it https://hcservices.ecourts.gov.in/hcservices/ was, is binding. It is only the principle laid downin the judgment that is binding law under Article141 of the Constitution. A deliberate judicialdecision arrived at after hearing an argument on aquestion which arises in the case or is put in issuemay constitute a precedent, no matter for whatreason, and the precedent by long recognition maymature into rule of stare decisis. It is the ruledeductible from the application of law to the factsand circumstances of the case which constitutes itsratio decidendi."63. The above observations of the Hon'ble Supreme Court werevery much relied on by the learned counsel for the second respondentto submit that the decision of the Hon'ble Supreme Court reported in2006(8) SCC 581, (cited supra), is not a binding precedent for theproposition that the Hindu Succession Amendment Act 2005 will have noapplication in cases where the succession has opened prior toDecember 2004.64. Now, in the light of the decisions relied on by both theparties, let me consider the facts of the present case to find outwhether the Trial Court has correctly held that the Amendment Act 39of 2005 would be applicable and the daughters are entitled to equalshares.65.In Sheeladevi's case (cited supra), the Hon'ble SupremeCourt while going through the Hindu Succession Amendment Act 2005,observed that the provisions of the Amendment Act 2005 would have noapplication in that case as the succession opened in 1989 itself whenthe father passed away.66. It is true that this question does not arise forconsideration before the Hon'ble Supreme Court and even assumingwithout admitting that the above observations of the Hon'ble SupremeCourt are mere observations and not a ratio decidendi, as contendedby the learned counsel for the second respondent, still I am bound bythe judgment of the Division Bench of this Court reported in 2008(3)TLNJ 416 (Civil), (cited supra), wherein a similar issue came up forconsideration before the Division Bench and the Division Bench aftergoing through the amended as well as the unamended Hindu SuccessionAct came to the irresistible conclusion that as the father in thatcase expired in 1975, succession itself opened in thatyear inaccordance with existing provisions contained in Sec.6. Therefore,the Division Bench held that the benefits under the amendedprovisions of Sec.6 of the Act would not be made available to thedaughters.67. In the present case also, the father passed away as early ason 31.8.1965 and therefore, the succession was already opened in that https://hcservices.ecourts.gov.in/hcservices/ year in accordance withthe existing provisions contained in Sec.6.Therefore, in this case also, it is to be held that the benefitsconferred on the daughters under the amended provisions of the Sec.6of the Act would not be made applicable.68. Though an attempt was made by the learned counsel for thesecond respondent by relying on a Division Bench of this courtreported in 2007(3) MLJ 1029 (cited supra), where the Division Benchheld that the Amended Act 39 of 2005 would be made applicable in apending case, it is not useful to the case of thesecond 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 theyear 1975, it is not possible for the daughters to re-open thesuccession again claiming equal shares on the basis of the AmendmentAct 2005.69. That apart, this Court in 2007(4) TLNJ 535 (civil) (citedsupra), and in 2008(4) CTC 773 (cited supra), consistently held thatwhen the succession opened before coming into force of Amendment Act39 of 2005, its benefits could not be conferred upon the daughtersafter the Act came into force.70.Therefore, I have no hesitation in holding that the Trialcourt has committed an error in holding that the Hindu SuccessionAmendment Act 2005 would be made applicable in O.S.NO.1444 of 2004.71.Once it is held that the benefits of the Hindu SuccessionAmendment Act 2005 could not be conferred on the daughters in thepresent case, as their father passed away on 31.8.1965, then it isvery clear that the plaintiff and the first defendant are entitled to1/3rd share each before the death of the father and thereafter theyare entitled to equal share along with their sisters in theirfather'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 to1/15th share each and respondents 4 to 8 are jointly entitled to1/15th share in the suit schedule properties.73. Thus, the judgment and decree of the trial Court is modifiedas indicated above. https://hcservices.ecourts.gov.in/hcservices/

74. In the result, the appeal is allowed in the above terms. Nocost.sd/-Asst.Registrar 11.8.2009* Amend the Judgment as per the order dated 26.11.2009 in M.P.No.1/09 in A.S.No.272/08.sd/-Asst.Registrar 30.11.2009/true copy/Sub Asst.Registrarvaan To1. THE REGISTRAR |Amended Judgment to be Substituted CITY CIVIL COURT, CHENNAI. |to the Judgment already despatched |on 11.8.09.2. THE VI ADDITIONAL JUDGE, | CITY CIVIL COURT, CHENNAI. |+ 1 c.c. to Mr. J. Krishnamachary, Advocate. S.R.No.35601.+ 1 c.c. to Mr. J. Sethuraman, Advocate. S.R.No.*64414.+ 1 c.c. to Mr. Satish Parasaran, Advocate. S.R.No.64353. Judgment in A.S.No.272 of 2008NG (CO)GSK 11.08.2009.jrg(co)pmk.30.11.2009.