The Amendment Act 39 of 2005 conferring rights upon female heirs in joint family property does not apply if the succession had opened prior to its enactment.

The unsuccessful first plaintiff has preferred this Second Appeal against the judgment and decree, dated 1. 2008, passed in A.S.No.60 of 2006 on the file of I Additional District Judge, Erode confirming the judgment and decree, dated 24. 2006, made in O.S.No.122 of 2003 on the file of Subordinate Judge, Bhavani.

2. The plaintiffs i.e., the appellant and the eighth respondent herein filed the suit seeking for a decree directing the division of the suit properties into six equal shares and allot two such shares jointly to them and put them in separate possession of their shares. The case of the plaintiffs is that the defendants 2 to 4 are their sisters and the first defendant is their brother and the suit properties belonged to their father by purchase through sale deed dated 3. 1960 and they are his self-acquired properties and he died intestate about 30 years prior to the filing of the suit leaving them as legal heirs and they are in joint possession and enjoyment of the suit properties and each is entitled to 1/7 share.

3. The first defendant filed written statement admitting the relationship, but has stated that the suit properties were purchased by their father in his name out of the funds realised by sale of the jewels belonging to their mother and after his death, their mother executed a Will dated 27. 1992 bequeathing the properties in favour of the son viz., the first defendant and he is in exclusive possession and enjoyment of the suit properties.

4. The Trial Court, on a consideration of oral and documentary evidence, held that the plaintiffs are not entitled for the relief of partition and dismissed the suit. Aggrieved by the same, both the plaintiffs preferred appeal and the Appellate Court dismissed the appeal confirming the judgment and decree of the trial Court. Challenging the same, the first plaintiff has preferred the present second appeal.

5. The learned counsel for the appellant Mr.N.Manokaran submits that the Courts below have failed to note that the plaintiffs married after coming into force of Hindu Succession Act, 1956 and their father died intestate and there was no partition between the parties and during the pendency of the present suit, Act 39 of 2005 came into force and therefore the plaintiffs are entitled to get share equal to that of their brother viz., the first respondent herein.

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. 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 Vs. LAL CHAND AND ANOTHER (2007) 1 MLJ 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