ORDER :- This suit has been filed by the plaintiff, husband of deceased Mrs. Mithlesh Aggarwal, after coming into force of the Hindu Succession Act (Amendment Act 2005) whereby Section 6 of the Hindu Succession Act, 1956 was amended.

2. The defendant has filed an application under O. VII, Rule 11, CPC submitting that the suit was not maintainable and no right accrued upon the plaintiff after amendment of the Act and the partition of the disputed property had already taken place. The amended Act was not applicable. A prayer is made for rejection of the suit.

3. In order to appreciate the contention of both the parties, the brief narration of the relevant facts is necessary.

4. A civil suit bearing No. 1717/1984 was filed by the defendant No. 1 and 2 for partition of the properties left behind by Mr. Pran Nath Goyal. In the suit, wife of Mr. Pran Nath Goyal and other sons and daughters including the wife of the plaintiff were the parties. During the pendency of the suit, on a joint application filed by the parties, under Section 21 of the Arbitration Act, 1940, the entire matter was referred to arbitrator for deciding the question of division of property. The Arbitrator gave an award on 11-2-1989 and the award was published on 11-12-1989. The award was made rule of the Court on 8-4-1991 and a decree was passed in suit No. 1717/1984 in terms of the award. In terms of the award wife of the plaintiff Mrs. Mithlesh Aggarwal was granted 1/36th share in the two immovable properties of the deceased. An appeal was preferred against the decree being FAO No. 99/1991. The appeal was dismissed in default. Thereafter, an Execution Petition No. 14/93 was preferred before this Court which was subsequently transferred to the District Court. Mrs. Mithlesh Aggarwal, through whom plaintiff claims right for partition of the property, died on 25-11-1998. The plaintiff filed this suit, as earlier stated, after passing of the amendment in Hindu Succession Act claiming that Mrs. Mithlesh Aggarwal was entitled to 1/6th share in view of the amendment and this Court should declare her to be entitled to 1/6th share.

5. The contention of the plaintiff is that since execution petition was pending and the partition decree passed by the Court in 1991 has not been given effect to by effecting partition by metes and bounds, the partition is not complete as the decree has not been implemented. Plaintiff relied upon Section 6(5) of Hindu Succession Act as amended and stated that amended section shall apply in this case since no partition has been effected before 20-12-2004.

6. On the other hand, the contention of the learned counsel for the defendant is that since Mrs. Mithlesh Aggarwal died in the year 1998 and her share had already been determined by a competent Court and a decree has been passed which became final, no right survived in plaintiff to file a fresh suit even after amendment of Hindu Succession Act.

7. In order to decide the maintainability of the suit, a careful perusal of the amended Act of the Hindu Succession Act is needed. Section 6 reads as under :-

6. Devolution of interest in coparcenary property- (1) On and from the commencement of the Hindu Succession (Amendment) Act 2005, in a Joint Hindu family 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 coparcener;

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-

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