Thottathil B.Radhakrishnan, J.

"CR"

1. Defendant appeals against a preliminary decree for partition.

2. Chami, a Hindu male who ran a teashop, died intestate following a motor accident on 19.05.2000. First plaintiff is his widow. Plaintiffs 2 and 3 are their daughters and the defendant their son. In 2004, the mother and daughters sued for partition claiming one-fourth right each in the suit properties, which according to them is the estate left behind by late Chami. Defendant contested and claimed that the first item in plaint A schedule, a dwelling house, is not liable to be partitioned in view of Section 23 of the Hindu Succession Act, 1956, for short, "the Act". He also pleaded that some of the movables in the tea shop were his acquisitions and that there are certain items of monies left out of from the claim for partition.

3. The court below held that Chami's widow had shown that no amount other than that included in the schedule to the plaint was available for partition and that the defendant having taken over the tea shop of Chami immediately following his unexpected demise following the motor accident, has not shown that any of the movables in the tea shop belonged exclusively to him, contrary to the available presumption that all movables therein belonged to Chami who owned the shop till his death. On the defendant's plea regarding the dwelling house, the court below held that though the suit was instituted before the coming into force of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), hereinafter, the "Amending Act", the female heirs are no more barred from seeking partition of the dwelling house in view of the repeal of Section 23 of the Act by the Amending Act.

4. The findings regarding the monies and the movables in the tea shop being unassailable on the basis of the evidence on record and in law, including the precedent relied on by the court below, the learned counsel for the appellant, quite rightly, confined himself to attacking the impugned preliminary decree and judgment in so far as it relates to the dwelling house. He argued that the Amending Act that came into force in 2005 is prospective and therefore, the suit instituted in 2004 is barred. He further argued that succession having opened with the death of Chami on 19.05.2000, the rights of parties had crystallized before the repeal of Section 23 of the Act and that therefore, the female heirs of Chami had no right to partition without the consent of the defendant, the male heir.

5. Prior to its omission as per the Amending Act, Section 23 of the Act read as:

23. Special provision respecting dwelling-houses.--Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein :

Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.

6. A survey of the decisions of the different high courts may tend to show that there is divergence of opinion as to whether Section 23 would operate as a bar to a female heir claiming partition in the event of there being only one male heir. The fact being that there is only one male heir for Chami, such an issue would have been relevant in the case in hand. But, we do not propose to go into that for two reasons. Firstly, no such plea is raised by the female heirs opposing the insulation from partition, claimed by the defendant, the sole male heir. Secondly, the fundamental question arising for decision in this appeal i