Smt. Binapani Nayak - Appellant @HASH Pruthiraj Parida (dead) his L.Rs. and another

Mr. D. Dash, J. - This appeal has been filed against the judgment and decree passed by the learned District Judge, Dhenkanal in Title Appeal

No. 27 of 1996 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Dhenkanal in Title Suit No. 77 of 1995.

The appellant as the plaintiff had filed the suit for partition of the land described in Schedule -A (comprising of lot 1 and lot 2) as also the Schedule

-B of the plaint. The trial court decreed the suit preliminarily in part for partition allotting ⅓rd share to the plaintiff over Schedule -A lot - 1

property in favour of the plaintiff and ⅓rd share each to respondent no. 2 and 3 (defendant no. 1 and 2), while declining the partition the properties

described in lot - 2 of Schedule-A and Schedule -B holding the plaintiffs-appellant to be having no right to claim partition of land under lot 2 of

Schedule-A and that the Schedule -B land as not liable to be partitioned amongst the parties. The unsuccessful plaintiff (appellant) being aggrieved

by such refusal of the relief as prayed for in respect of the Schedule-A, lot-2 land as also Schedule -B having carried an appeal under section 96 of

the Code of Civil Procedure has failed to get the trial court''s decree enlarged to any extent. So she has now approached this Court with the

second appeal under section 100 of the Code of Civil Procedure.

For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been

arraigned in the trial court.

The case of the plaintiff is that the properties described in Schedule -A under two lots i.e., lot - 1 which are the landed properties of village

Kankadahada and lot - 2 which is homestead land in the town of Dhenkanal belong to her father and the land described under schedule B as the

land belonging to the State adjoining the homestead land described in lot 2 which has remained in possession since the time of her father Kampal

Parida. Accordingly, it is stated that Kampal had acquired right, title and interest over said schedule B land by adverse possession by virtue of his

open, peaceful and continuous possession for much more than the period prescribed. She filed the suit claiming ⅓rd share over the above

properties.

It is stated that defendant no. 1 had earlier filed a suit for partition of the properties in three equal halves amongst himself, his brother-defendant

no.2 and the sister i.e., the present plaintiff. The suit having been dismissed, no further steps are said to have been taken for its restoration. The

plaintiff claims to have made a request for partition of the above properties and allotment of land as she is entitled in law, but as the defendants did

not listen to the same, the present suit has been filed.

Defendant no. 2 has only come forward to the contest the suit. Challenging the maintainability of the suit, he states that since all the properties

belonging to their father have not been brought to the hotchpot, the suit is not maintainable as it is one for partition. It is stated that in course of

enjoyment of the joint family properties situated in other villages which formed the joint family nucleus and during such management, these

properties described in lot-1 of the Schedule -A was purchased in the name of their father. So, it is asserted to be the ancestral property. As

regards the property described in lot - 2 of the plaint is stated to have been purchased by the Kampal out of his own income. It is also stated that

Schedule -B land has been in encroachment during the lifetime of Kampal and it has been kept under fencing having been amalgamated with the

recorded land. It is further informed by the defendant no. 2 as regards pendency of the encroachment case and that land has not yet been settled

either in the name of Kampal or anybody else claiming through Kampal. This defendants no. 2 now claims to be in possession of the said land. The

land is thus said to be unsettled property and the plaintiffs right to claim partition over the same is accordingly resisted.

It is further stated that the plaintiff is not entitled to any share over the Schedule -A lot -2 land which is the undivided dwelling house of the family.

The quantum of share which the plaintiff has claimed as ⅓rd share is also disputed, in further pleading that she is entitled to get 1/9th share only

over the Schedule -A lot -1 land.

Faced with the above rival pleadings, the trial court framed in as much as five issues. First taking up issue no. 1, the maintainability of the suit, the

answer has been rendered that it is well maintainable as the plaintiff is not at all making any claim of her share in respect of those properties in

respect of other mouzas except those as stated in Schedule -A and B.

Next going to answer issue no. 2 and 3 together as regards the claim of the plaintiff for partition of the Schedule -A lot -1 properties as also lot-

2 in view of the challenge that Schedule -A lot -1 properties is not the self-acquired property of Kampal, whereas Schedule -A lot -2 is not liable

to be partitioned, on examination of evidence, the ultimate findings have been recorded that the defendant no. 1 has not been able to prove by

leading acceptable evidence that Schedule -A land under both the lots had been purchased in the name of Kampal, their father with the aid of the

income of the joint family and thus, said properties have been held to be the self-acquired property of Kampal. Then going to the portability of land

Schedule -A lot-2, it has been found to be the undivided dwelling house occupied by the members of the family. So, in view of the bar under

section 23 of the Hindu Succession Act, the plaintiff being the daughter of Kampal and as such a Class - 1 female heir as per the schedule given

under the Act along with defendant no. 1 and 2, the prayer on that score has been refused.

Answering issue no. 4 as regards the portability of Schedule -B land, the land having been found to be standing in the name of the Government

and possession of the parties having been found to be illegal, the trial court has refused to subscribe its hand to the prayer of the plaintiff for

partition of said land and allotment of share over the same. Thus, the suit having been preliminarily decreed entitling the plaintiff with ⅓rd share only

in respect of the land described in Schedule -A, lot -1, she filed the appeal under section 96 of the Code of Civil Procedure.

The lower appellate court on analysis of evidence and upon going through the discussion as made by the trial court has affirmed all the findings

and thus has confirmed the result rendered in the suit. Therefore, now the present move is before this Court by filing the second appeal under

section 100 of the Code.

The appeal has been admitted on the following substantial question of law:-

Whether in the given facts and circumstances and the material evidence on record, the provision enumerated under section 23 of the Hindu

Succession Act, 1956 is attracted to the instant case?

The above substantial question of law only concerns with the property described in schedule -A, lot -2, which the courts below have declined to

partition the same holding it to be the undivided dwelling house occupied by the members of the family by applying the provision of section 23 of

the Hindu Succession Act. The lower appellate court has accepted the same in denying the plaintiff to be granted with the relief for partition of the

suit property and allotment of ⅓rd share to her.

I have heard the learned counsel for the parties at length who have contended in the light of providing support to the respective case of the

parties.

In short, Mr.J.K.Ghosh, learned counsel for the appellant when urges for grant of decree for partition also in respect of the property as at

Schedule-A, lot 2; Mr. S.P.Mshra, learned senior counsel contends that in this suit that question cannot arise as the provision of section 23 of the

Act has continued to remain the statute although even when this appeal was admitted and even thereafter.

During the passage of time, there has been a very important development in the field of law covering the subject impacting the above

substantial question of law which touches the root. The suit had been instituted in the year 1995. The first appeal being filed in the year 1996, has

been disposed of by judgment dated 9.2.2004 followed by decree dated 19.2.2004. The present second appeal has been filed on 6.5.2004

during the period when the provision of section 23 of the Hindu Succession Act (for short as ''the Act'') was very much there in the statute and it

was so even on the date when the second appeal has been admitted formulating the substantial question of law i.e. on 13.7.2004.

However, by reason of Hindu Succession (Amendment) Act 2005 (for short as ""the 2005 Act'') in so far as therein, section 23 of the Act has been

omitted. The date of commencement of the 2005 Act is 9th September, 2005 which has became applicable as expressly provided therein on and

from the said date. So the question now falls for consideration before this Court is the impact of amendment in the Act in view of the coming into

force of the 2005 Act in so far as the omission of the provision of section 23 in the Act is concerned. The omission has been without any other

provision either having any sort of nexus with the earlier existing provision as contained in section 23 of the Act or corresponding to it as also not

remaining with any changes being introduced. The provision as its stood was that when a Hindu intestate leaves by surviving male and female heirs

as indicated in Class-1 of the Schedule of the Act and the property includes a dwelling house wholly occupied by the members of the family, the

right of female heirs to seek partition of the same would not arise until the male heirs choose to divide their respective share therein and till then, the

female heirs as classified under the proviso will only be having the right of residence. The avowed object and importance of the provision is clearly

discernible.

The Act brought about the revolutionary changes in the old Hindu Law. It was enacted to amend and codify the law relating to intestate succession

amongst Hindus. By reason of the Act, all female heirs were conferred with equal right in the matter of succession and inheritance with that of male

heirs as provided in section 8 of the Act read with the schedule contained therein. By reason of section 14 of the Act, a woman who had limited

interest in the property but was possessed of the same was to become absolute owner. Section 6 of the Act, however made an exception to the

aforementioned rule by providing the manner in which the interest of the coparcenery property shall devolve upon the heirs stating that the rule of

survivor-ship would operate in respect thereof. The right, title and interest of an heir whether male or female thus are governed by the provision of

the Act.

Section 23 of the Act however carves out an exception in regard to obtaining a decree for partition in respect of dwelling house wholly occupied

by members of the family till happening of the contingency as provided in the said section at the behest of the female heirs. Although it expressly

recognised the female heirs, their right to reside therein and in respect of daughters if she comes under the proviso. This is an exception in order to

obtain a decree for possession inter alia in a case where dwelling house was possessed by male heirs till they chose to partition or till the male

heir/heirs go to use and occupy the dwelling house in a manner running counter to the objective behind enactment of said provision such as by

letting it out voluntarily not by compulsion or otherwise which frustrate the purpose of preserving the sanctity of the family dwelling house,

respecting tradition of preserving family dwelling house to effectuate family unity and prevent its fragmentation or disintegration by dividing it by

metes and bounds. Nonetheless the very right of the female heirs in the property of the father who died intestate equal to her brother over the

dwelling house stood recognised. But the right of the female heir is merely restricted to the above extent so far as its exercise is concerned and the

time ripe for it although, it recognises the right of residence in respect of the female heirs and daughters as female heirs who fall within the proviso

thereof. Such a right of residence is not dependent upon the date on which the suit has been instituted but can also be subsequently enforced by a

female, coming within the proviso appended to section 23 of the Act.

So far as the amendment to section 6 of the Act which has been brought by the 2005 Act, the divergent views of different High Courts by now

have been set at rest by the Hon''ble Apex Court in case of Prakash and others v. Phulabati and others, AIR 2016 SC 769 that the rights

under the amendment are available to the living daughters of living coparcener as on 9th September, 2005 irrespective of when such daughters are

born and that the disposition or alienation including partitions which have taken place before the appointed date i.e. 20th December, 2004 as per

law applicable prior to the said date will remain unaffected and any transaction or partition effected thereafter will be governed by the Explanation.

The Law Commission in its 174th Report recommended for omission of Section 23 of the Act in view of amendment in Section-6 of the Act.

In the said report the relevant Clause 3.2.9 reads as under:-

3.2.9 It is further felt that once a daughter is made a coparcener on the same footing as a son then her right as a coparcener should be real in spirit

and content. In that event section 23 of the HAS should be deleted. Section 23 provides that on the death of a Hindu intestate, in case of a

dwelling house wholly occupied by members of the joint family, a female heir is not entitled to demand partition unless the male heirs choose to do

so; it further curtails the right of residence of a daughter unless she is unmarried or has been deserted by or has separated from her husband or is a

widow. Section 23 of the Act needs to be deleted altogether and there is great support from various sections of society while replying to the

questionnaire.

The statement of Objects and Reasons of the 2005 Act reads as under:

It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in

the Hindu Mitakshara Coparcenary property as the sons have. Section 23 of the Act dis-entitles a female heir to ask for partition in respect of a

dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the

same section so as to remove the disability on female heirs contained in that section.

It is proposed to remove the discrimination as contained in section.6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the

Hindu Mitakshara coparcenary property as the sons have.

The intention of legislature become thus is evident that by the said amendment the goal set is for removal of the gender discrimination not only

as contained in section 6 of the Act but also conferring an absolute right in a female heirs to ask for partition and thus participation in a dwelling

house wholly occupied by the members of a joint family as provided for in terms of section 23 of the Act. Thus this omission is in the direction of

removal of the disability of the female heir as contained in that section. At this juncture, it is apposite to straightway refer to the decision of the

Hon''ble Apex Court in case of G. Sekar v. Geetha and others, AIR 2009 SC 2649.

It is profitable to quote the relevant paras:

Section 23 of the Act has been omitted so as to remove the disability on female heirs contained in that Section. It sought to achieve a larger

public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparacenary

property is concerned has been sought to be removed, we fail to understand as to how such a disability could be allowed to be retained in the

statute book in respect of the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule

appended thereto. Restrictions imposed on a right must be construed strictly. In the context of the restrictive right as contained in Section 23 of the

Act, it must be held that such restriction was to be put in operation only at the time of partition of the property by metes and bounds, as grant of a

preliminary decree would be dependant on the right of a co-sharer in the joint property. Concededly a preliminary decree could be passed

declaring each co-sharer to be entitled to ⅕th share therein in terms of the provisions contained in Section 8 of the Act. ⅕th share in each co-

sharer upon death of the predecessor-in-interest of the parties is absolute. They cannot be divested of the said right as the restriction in enjoyment

of right by seeking partition by metes and bounds is removed by reason of Section 3 of the 2005 Act. We may notice Sub-section (5) of the 2005

Act, which reads as under:

(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 or partition effected by a decree of a court.

Thus, where a partition has not taken place, the said provision shall apply.

Reliance has also been placed by Mr. Viswanathan on Eramma v. Verrupanna & ors. [(1966) 2 SCR 626], wherein it was held:

It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the

commencement of the Act. It is manifest that the language of section 8 must be construed in the context of section 6 of the Act. We accordingly

hold that the provisions of section 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act

came into force i.e., where succession opened before the Act, section 8 of the Act will have no application.

In the factual matrix obtaining in Eramma (supra), Section 8 was construed in the light of Section 6 of the Act, as one of the questions raised

therein was as to whether the property was a coparcenery property or not.

Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place.

The operation of the said statute is no doubt prospective in nature. The High Court might have committed a mistake in opining that the

operation of Section 3 of the 2005 Act is retrospective in character, but, for the reasons aforementioned, it does not make any difference. What

should have been held was that although it is not retrospective in nature, its application is prospective.

It is now a well settled principle of law that the question as to whether a statute having prospective operation will affect the pending proceeding

would depend upon the nature as also text and context of the statute. Whether a litigant has obtained a vested right as on the date of institution of

the suit which is sought to be taken away by operation of a subsequent statute will be a question which must be posed and answered.

It is trite that although omission of a provision operates as an amendment to the statute but then Section 6 of the General Clauses Act,

whereupon reliance has been placed by Mr. Viswanathan, could have been applied provided it takes away somebody''s vested right. Restrictive

right contained in Section 23 of the Act, in view of our aforementioned discussions, cannot be held to remain continuing despite the 2005 Act.

Reliance has been placed by Mr. Viswanathan on The State of Orissa v. Bhupendra Kumar Bose & ors. [AIR 1962 SC 945] wherein the

effect of a lapsing of the ordinance vis-a-vis non applicability of Section 6 of the General Clauses Act to such a situation was examined by this

Court to hold that even in the case of right created by a temporary statute if the right is of an enduring character and has vested in the person that

right cannot be taken away because the statute by which it was created has expired. We are not faced with such a situation.

We may notice that a Constitution Bench of this Court in Kolhapur Canesugar Works Ltd. & Anr. v. Union of India & Ors. [(2000) 2 SCC

536] considered the effect of omission of the Rules in a subordinate legislation, holding:

34... It is not correct to say that in considering the question of maintainability of pending proceedings initiated under a particular provision of the

rule after the said provision was omitted the Court is not to look for a provision in the newly added rule for continuing the pending proceedings. It

is also not correct to say that the test is whether there is any provision in the rules to the effect that pending proceedings will lapse on omission of

the rule under which the notice was issued. It is our considered view that in such a case the Court is to look to the provisions in the rule which has

been introduced after omission of the previous rule to determine whether a pending proceeding will continue or lapse. If there is a provision therein

that pending proceeding shall continue and be disposed of under the old rule as if the rule has not been deleted or omitted then such a proceeding

will continue. If the case is covered by Section 6 of the General Clauses Act or there is a pari materia provision in the statute under which the rule

has been framed in that case also the pending proceeding will not be affected by omission of the rule. In the absence of any such provision in the

statute or in the rule the pending proceedings would lapse on the rule under which the notice was issued or proceeding was initiated being

deleted/omitted. It is relevant to note here that in the present case the question of divesting the Revenue of a vested right does not arise since no

order directing refund of the amount had been passed on the date when Rule 10 was omitted.

The observations made therein instead of advancing the cause of the appellant goes against his contentions.

We are not oblivious of the fact that correctness of the said decision was doubted in S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of

India & Anr. [(2006) 2 SCC 740] wherein omission of Section 16(1)(d) of the Employees'' Provident Fund & Miscellaneous Provisions Act,

1952, which gave infancy protection, was held not to take away the right of parties existing on that date, opining that the right to infancy protection

accrued prior to that date held continue to survive for the balance infancy period.

The said decision has no application in the fact of the present case. We may, however, notice that in Brihan Maharashtra Sugar Syndicate

Ltd. v. Janardan Ramchandra Kulkarni & ors. [AIR 1960 SC 794], while dealing with the scope of Section 6 of the General Clauses Act,

this Court held:

Now it has been held by this Court in State of Punjab v. Mohar Singh (AIR 1955 SC 84), that Section 6 applies even where the repealing

Act contains fresh legislation on the same subject but in such a case one would have to look to the provisions of the new Act for the purposes of

determining whether they indicate a different intention. The Act of 1956 not only repeals the Act of 1913 but contains other fresh legislation on the

matters enacted by the Act of 1913. It was further observed in State of Punjab v. Mohar Singh (AIR 1955 SC 84), that in trying to ascertain

whether there is a contrary intention in the new legislation, ""the line of enquiry would be not whether the new Act expressly keeps alive old rights

and liabilities but whether it manifests an intention to destroy them.

It was furthermore observed:

We are unable to accept these contentions. Section 10 of the Act of 1956 deals only with the jurisdiction of courts. It shows that the District

Courts can no longer be empowered to deal with applications under the Act of 1956 in respect of matters contemplated by section 153-C of the

Act of 1913. This does not indicate that the rights created by section 153-C of the Act of 1913 were intended to be destroyed. As we have earlier

pointed out from State of Punjab v. Mohar Singh (AIR 1955 SC 84), the contrary intention in the repealing Act must show that the rights under

the old Act were intended to be destroyed in order to prevent the application of section 6 of the General Clauses Act. But it is said that section 24

of the General Clauses Act puts an end to the notification giving power to the District Judge, Poona to hear the application under section 153-C of

the Act of 1913 as that notification is inconsistent with section 10 of the Act of 1956 and the District Judge cannot, therefore, continue to deal with

the application. Section 24 does not however purport to put an end to any notification. It is not intended to terminate any notification; all it does is

to continue a notification in force in the stated circumstances after the Act under which it was issued, is repealed. Section 24 therefore does not

cancel the notification empowering the District Judge of Poona to exercise jurisdiction under the Act of 1913. It seems to us that since under

section 6 of the General Clauses Act the proceeding in respect of the application under section 153-C of the Act of 1913 may be continued after

the repeal of that Act, it follows that the District Judge of Poona continues to have jurisdiction to entertain it. If it were not so, then section 6 would

become in fructuous.

Yet again in Raja Narayanlal Bansilal v. Maneck Phiroz Mistry [AIR 1961 SC 29] this Court, while interpreting the provisions of Section

645 of the Companies Act, opined:

The effect of this section is clear. If an inspector has been appointed under the relevant section of the old Act, on repeal of the old Act and on

coming into force of the new Act, his appointment shall have effect as if it was made under or in pursuance of the new Act. Indeed it is common

ground that if section 645 had stood alone and had not been followed by section 646 there would have been no difficulty in holding that the

inspector appointed under the old Act could exercise his powers and authority under the relevant provisions of the new Act, and the impugned

notices would then be perfectly valid. Incidentally we may refer to the provisions of section 652 in this connection. Under this section any person

appointed to that office under or by virtue of any previous company law shall be deemed to have been appointed to that office under this Act.

In State of Punjab & Ors. v. Bhajan Kaur & Ors. [2008 (8) SCALE 475], while dealing with the question as to whether the quantum of no

fault liability enhanced from Rs.15,000/- to Rs.50,000/- could be awarded, it was held:

No reason has been assigned as to why the 1988 Act should be held to be retrospective in character. The rights and liabilities of the parties

are determined when cause of action for filing the claim petition arises. As indicated hereinbefore, the liability under the Act is a statutory liability.

The liability could, thus, be made retrospective only by reason of a statute or statutory rules. It was required to be so stated expressly by the

Parliament.

Applying the principles of interpretation of statute, the 1988 Act cannot be given retrospective effect, more particularly, when it came into force on

or about 1.07.1989.

Reference to Section 6 of the General Clauses Act, in our opinion, is misplaced.Section 217 of the 1988 Act contains the repeal and saving

clause. Section 140 of the 1988 Act does not find place in various clauses contained in Sub-section (2) of Section 217 of the 1988 Act. Sub-

section (4) of Section 217 of the 1988 Act reads, thus:

(4) The mention of particular matters in this section shall not be held to prejudice or affect the general application of Section 6 of the General

Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals.

Indisputably, the question as to whether an amendment is prospective or retrospective in nature, will depend upon its construction.

It is merely a disabling provision. Such a right could be enforced if a cause of action therefor arose subsequently. A right of the son to keep the

right of the daughters of the last male owner to seek for partition of a dwelling house being a right of the male owner to keep the same in abeyance

till the division takes place is not a right of enduring in nature. It cannot be said to be an accrued right or a vested right. Such a right indisputably

can be taken away by operation of the statute and/or by removing the disablement clause.

In Bhajan Kaur (supra), it was held:

Section 6 of the General Clauses Act, therefore, inter alia saves a right accrued and/or a liability incurred. It does not create a right. When

Section 6 applies only an existing right is saved thereby. The existing right of a party has to be determined on the basis of the statute which was

applicable and not under the new one. If a new Act confers a right, it does so with prospective effect when it comes into force, unless expressly

stated otherwise.

In Vishwant Kumar v. Madan Lal Sharma & Anr. [(2004) 4 SCC 1], a three judge Bench of this Court repelled a similar contention that

Section 9 of the Delhi Rent Control Act providing for the exclusion of operation thereof in the following words:

...There is a difference between a mere right and what is right acquired or accrued. We have to examine the question herein with reference to

Sections 4, 6 and 9 of the Act. It is correct that under Section 4 of the Rent Act, the tenant is not bound to pay rent in excess of the standard rent,

whereas under Section 9 he has a right to get the standard rent fixed. Such a right is the right to take advantage of an enactment and it is not an

accrued right.

It was furthermore opined:

What is unaffected by repeal is a right acquired or accrued under the Act. That till the decree is passed, there is no accrued right. The mere right

existing on date of repeal to take advantage of the repealed provisions is not a right accrued within Section 6(c) of the General Clauses Act.

Further, there is a vast difference between rights of a tenant under the Rent Act and the rights of the landlord. The right of a statutory tenant to pay

rent not exceeding standard rent or the right to get standard rent fixed are protective rights and not vested rights. On the other hand, the landlord

has rights recognised under the law of Contract and Transfer of Property Act which are vested rights and which are suspended by the provisions

of the Rent Act but the day the Rent Act is withdrawn, the suspended rights of the land lord revive.

A similar question came up for consideration recently in Subodh S. Salaskar v. Jayprakash M. Shah & Anr. [2008 (11) SCALE 42], wherein

it was noticed:

In Madishetti Bala Ramul (Dead) By LRs. v. Land Acquisition Officer [(2007) 9 SCC 650], this Court held as under:

It is not the case of the appellants that the total amount of compensation stands reduced. If it had not been, we fail to understand as to how

Section 25 will have any application in the instant case.

Furthermore, Section 25 being a substantive provision will have no retrospective effect. The original award was passed on 8-2- 1981: Section 25,

as it stands now, may, therefore, not have any application in the instant case.

The question is now covered by a judgment of this Court in Anil Kumar Goel v. Kishan Chand Kaura[2008 AIR SCW 295] holding:

All laws that affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested

rights and obligations, unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words

giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. Hence the question whether

a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and

unambiguous, effect will have to be given to the provision is question in accordance with its tenor. If the language is not clear then the court has to

decide whether, in the light of the surrounding circumstances, retrospective effect should be given to it or not. (See: Punjab Tin Supply Co.,

Chandigarh etc. etc. v. Central Government and Ors., AIR 1984 SC 87).

There is nothing in the amendment made to Section 142(b) by the Act 55 of 2002 that the same was intended to operate retrospectively. In fact

that was not even the stand of the respondent. Obviously, when the complaint was filed on 28.11.1998, the respondent could not have foreseen

that in future any amendment providing for extending the period of limitation on sufficient cause being shown would be enacted.

In Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & Etio & ors. [(2007) 5 SCC 447], it was held:

...The expression ""privilege"" has a wider meaning than right. A right may be a vested right or an accrued right or an acquired right. Nature of such

a right would depend upon and also vary from statute to statute.

Strong reliance has been placed by Mr. Viswanathan on Atma Ram Mittal v. Ishwar Singh Punia[[(1988) 4 SCC 284], wherein it was held:

It is well-settled that no man should suffer because of the fault of the Court or delay in the procedure. Broom has stated the maxim ""actus

curiam neminem gravabit""-an act of Court shall prejudice no man. Therefore, having regard to the time normally consumed for adjudication, the 10

years exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed

of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within 10 years and

even then within that time it may not be disposed of. That will make the 10 years holidays from the Rent Act illusory and provide no incentive to

the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive

interpretation in a social amelioration legislation is an imperative irrespective of anything else.

Yet again, reliance has been placed on M/s Kesho Ram & Co. & ors. etc. v. Union of India & Ors. [(1989) 3 SCC 151], wherein it was

held:

Learned Counsel urged that the impugned Notification enlarged the period of exemption for an indefinite period and it tends to amend Section

13 of the Act and it is contrary to the object and purpose of the Act. Developing the argument it was submitted that the Notification granted

exemption to newly constructed buildings in the urban area of Chandigarh for a period of five years only from the operation of Section 13 of the

Act, therefore, no exemption could be available to newly constructed buildings after the expiry of five years. A suit if instituted during the period of

exemption could not be decreed, nor such decree could be executed after the expiry of five years period but the last portion of the Notification

which states that Section 13 of the Act shall not apply to decree of civil courts whether such decree was passed during the period of exemption or

at any time thereafter"" enlarged the period of exemption for an indefinite period of time, and it seeks to amend Section 13 of the Act. We do not

find merit in the submission. As noticed earlier Section 13(1) imposes a complete ban against the eviction of a tenant in execution of a decree

passed by a civil court before or after the commencement of the Act and it further lays down that a tenant in possession of a building or rented land

shall not be evicted except in accordance with the provisions of Section 13 or an order made in pursuance of the provisions of the Act. Sub-

Section (2) of Section 13 sets out statutory grounds on which the Controller, an authority constituted under the Act has power to pass order of

eviction against a tenant. Section 13 takes away the jurisdiction of civil court to pass a decree of eviction or execution thereof against a tenant in

respect of a building which is subject to the provisions of the Act The impugned Notification grants immunity to newly constructed buildings from

the shackles of Section 13 of the Act for a period of five years.

While doing so, the Notification has taken care to make the exemption effective by providing that the exemption shall be available to the building

even if the decree is passed after the expiry of the period of five years provided the suit is instituted during the period of exemption. The emphasis

is on the institution of the suit within the period of exemption of five years. Once the landlord institutes a suit before the expiry of the period of

exemption, the decree even if passed after the period of five years will not be subject to the provisions of Section 13 of the Act. This is the true

meaning of the Notification The Notification does not enlarge the period of exemption instead it safeguards the rights of the parties which crystallise

on the date of institution of the suit. The aforementioned decisions for the reasons stated supra are not applicable in the instant case.

As indicated hereinbefore, the institution of a suit is not barred. What is barred is actual partition by metes and bounds.

Reliance has also been placed on Sheela Devi & ors. v. Lal Chand & Anr. [(2006) 8 SCC 581]. The question which arose therein was vesting

of right of a coparcener of a mitakshra family under the old Hindu Law vis-a-vis Hindu Succession Act, 1956. The contention raised therein that

the provisions of the Amendment Act, 2005 will have no application as the succession had opened in 1989 was negatived, holding:

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. Thus, it was the half share in the property

of Babu Ram, which would devolve upon all his heirs and legal representatives as at least one of his sons was born prior to coming into force of the

Act.

The said decision, thus, cannot be said to have any application whatsoever in this case.

Reliance has also been placed by Mr. Viswanathan in Shyam Sunder & Ors. v. Ram Kumar & Anr. [(2001) 8 SCC 24], wherein it was held

that ordinarily a statute should be construed to have prospective operation. In that case, a right of pre-emption was sought to be taken away by

Section 15 of the Punjab Preemption Act, 1913 as substituted by Haryana Act 10 of 1995 and it was on that premise, held:

From the aforesaid decisions the legal position that emerges is that when a repeal of an enactment is followed by a fresh legislation such

legislation does not effect the substantive rights of the parties on the date of suit or adjudication of suit unless such a legislation is retrospective and

a court of appeal cannot take into consideration a new law brought into existence after the judgment appealed from has been rendered because the

rights of the parties in an appeal are determined under the law in force on the date of suit. However, the position in law would be different in the

matters which relate to procedural law but so far as substantive rights of parties are concerned they remain unaffected by the amendment in the

enactment. We are, therefore, of the view that where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act

such legislation is prospective in operation and does not effect substantive or vested rights of the parties unless made retrospective either expressly

or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statue and further a

statute is not to be construed t have a greater retrospective operation than its language renders necessary, but an amending act which affects the

procedure is presumed to be retrospective, unless amending act provides otherwise.

Mr. Viswanathan also placed strong reliance upon a decision of this Court in Narashimaha Murthy v. Susheelabai (Smt) and Others

[(1996) 3 SCC 644]. The principal question which arose for consideration therein was as to whether the premises which are tenanted ones would

come within the definition of `dwelling house'' so as to attract the rigours of Section 23 of the Act. This Court clearly held that the succession

cannot be postponed and Section 23 has been engrafted ""respecting tradition of preserving family dwelling house to effectuate family unity and

prevent its fragmentation or disintegration by dividing it by metes and bounds"". It was furthermore held that ""the prohibition gets lifted when male

heirs have chosen to partition it"".

Thus, a right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition

by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. Indisputably, when

there are two male heirs, at the option of one, partition of a dwelling house is also permissible.

At this juncture, the question arises as to whether the plaintiff being the daughter coming as class-I heir under the schedule of the Act, is entitled

to claim partition and get the share as per her entitlement allotted in her favour in so far as the dwelling house of the parties are concerned. The suit

was instituted in the year 1992 and the first appeal came to be filed in the year 2001, where after this Court has been moved with the present

second appeal in the year 2004 which has been admitted on framing the substantial questions of law as stated in aforesaid para-6. During the suit

and first appeal, the provision of section 23 of the Act containing the temporary bar of claiming partition of dwelling house by daughter till

happening of certain events was there in the statute and the same then stood as under:-

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.

The proviso as above confers right on unmarried daughter, the daughter who has been deserted or is separate from her husband and a widowed

daughter giving the right of residence notwithstanding the fact that her husband has left a dwelling house. The right of a female heir to claim partition

of the family dwelling house although restricted so long as the male heirs do not choose to effect partition of the same yet it expressly recognises

that those category of female heirs have the right to reside therein.

The above provision came to be totally omitted by the 2005 Act, which came into force on 09.09.2005 without any other provision either

having any sort of nexus with the earlier existing provision as contained in Section 23 of the Act or corresponding to it as also not remaining with

any changes being introduced. The provision as it stood was that when a Hindu intestate leaves by surviving both male and female heirs as

indicated in class-I of the schedule of the Act and the property includes a dwelling house wholly occupied by the members of the family, the right of

the female heirs to claim partition of the same is thereby not wholly denied or taken away nor barred forever. So that cannot at all be taken to have

created a vested right in favour of those male heirs. But the provision was creating a mere temporary logjam that the right to claim partition shall

remain under suspension being not press-able to get the final outcome for that period until the male heirs choose to divide their respective shares

therein and till then, the schedule-I female heirs as sub-classified under the proviso will be simply having the right of residence. The object and

importance of the provision is clearly discernible. The divergent views in the decisions of various High Courts as regards the provision of the said

section having its play has been finally set at rest by the Supreme Court in case of Narasimha Murthy v. Susila Bai; AIR 1996 SC 1826. It has

been held that the right of the female heirs to claim partition of a dwelling house remains in abeyance during the lifetime of the male heirs and till

such time that the male heirs choose to partition the property, as also until such time that the male heirs cease to occupy it as such and their

occupation stands otherwise such as by letting it out or otherwise running counter to the very objective, and purpose behind such enactment as well

as the goal sought to be achieved that is to maintain the sanctity of the family dwelling house respecting tradition of preventing its fragmentation and

disintegration to effectuate family unity. The right of the female heir was remaining under suspension until the above enumerated events occur and

the claim was fructifying only in case of happening of those eventualities. The Full Bench decision of this Court in case of Mahanti Matyalu v.

Oluru Appanama And Ors., AIR 1993 Orissa 36 has also been over ruled.

But now in view of the total omission of the said section from the statue, the temporary bar and abeyance of right for the female heirs to the claim

of partition of the dwelling house during the lifetime of the male heirs and till such time that such male heirs choose to partition the property until

such time that the male heirs go to occupy it otherwise does no more stand. The provision by which the right to claim partition of dwelling house

was only springing up on the happening of the above enumerated incidents and fructifying in case of all the eventualities happening has been swept

away and thrown to the dustbin to serve the objective of removal of gender bias and remove the discrimination. It may be kept in mind that though

the right over the property was remaining all along when prior to the 2005 Act, its exercise was restrictive and contingent; it is now after omission

of the provision of section 23 of the Act by virtue of the 2005 Act become exercisable even without the fulfilment of the conditions as those

enumerated and notwithstanding such occasion since the provision restricting the exercise of right has stood omitted altogether and there stands the

removal of the bar thereby.

The provision as it was there before omission by the 2005 Act, in my considered view was purely standing as a temporary bar for exercising

the right to partition by the female heirs over the dwelling house wholly occupied by the members of the family. The female had the right over the

property to the extent of her share as a class -I heir, but it was remaining under suspension or abeyance so as to be exercised and worked out in

reality so as to prevent disintegration and preserve sanctity of the family dwelling house as long as the male heirs so desire. Thus the right over the

dwelling house of the family wholly occupied by the members of the family standing recognised as such was put under restriction only for being

exercised. It was therefore a restrictive right with restrictions put therein to get the same wholly worked out. This in no way was thus creating or

clothing any vested right in favour of male heirs although standing as a weapon in their arms to put the right of class-I female heirs on hold from

being exercised till such time the male heirs either choose to divide or put the said dwelling house into use in a manner running counter or offending

the very objective sought to be achieved by that provision as then existing for the purpose of maintaining the sanctity of the family dwelling house

respecting tradition of preserving family dwelling house to effectuate family unity and prevent its fragmentation or disintegration. Even if in a suit for

non-fulfilment of those conditions, she was not being allowed with a share over the dwelling house but a suit or suits at a later date on happening of

all those events was not legally barred. The provision was in relation to the exercise of the right at appropriate time but not concerning total de-

recognition or negation of the right to claim for all times to come. The right over the property by virtue of that provision had not been given a total

burial but it was as if being larva inside the volcano in readiness for eruption, at the moment of environmental disorder suiting the purpose when the

conditions getting fulfilled. Thus, no finality was attached to such judgment of the courts denying the right to the female heirs to claim partition over

the dwelling house. The exercise of the right was remaining in a dormant stage and springing up to life so as to be put into action on the happening

of the enumerated eventualities. This omission of the said provision of section 23 of the Act by the 2005 Act having been made, the intention of the

legislature is clearly culled out that the objective of preservation of the sanctity of family dwelling house and prevention of its disintegration unless

the desire comes from male heirs has to give way and no longer survive for consideration on the face of gender bias and gender discrimination for

their removal which has been the cry of the present time.

Therefore, even in the instant suit, assuming for the sake of argument if we say that the plaintiff being the female heir is not entitled to exercise the

right of partition over the dwelling house; however, in view of the omission of the said provision in the statute, she can very well file a suit again for

the very same relief on the very day of disposal of the suit or on the next day onwards. So, when the present lis is continuing in the second appeal

which has already been admitted and this Court finds that the provision creating the temporary bar to exercise the right has already been omitted,

there arises no legal objection or impediment in answering it in favour of the plaintiff that she can well seek for partition of the said dwelling house in

accordance with her share as the class-I heir of the Satyabadi against the defendant no. 2, the other class-I heir of Satyabadi. The provision of

section 23 of the Act as was existing within all its four was thus a procedural one prescribing the appropriate time so as to the institution of the lis to

enforce the right and it was merely a restriction for such time that its exercisable at such point of time when the events would so happen.

Although omission of the said section is not expressly stated to be retrospective yet now regard being had to the object behind such omission,

it has to be said to be having its impact upon the pending lis at any stage in the court since the omission is not reopening a decision which had been

rendered in that very lis that has so reached its finality. But as it has earlier been said that there was no finality to the decision and the right under the

earlier provision in the Act was exercisable on the happening of eventualities, the female heirs having been denied with the right to claim partition in

the lis can very well file it again in view of the omission of the provision from the statute and can get a decree if it is otherwise permissible in law

even without establishing the eventualities which were required to be shown as existing as per earlier provision (since omitted) as the preconditions

for grant of decree for partition of the dwelling house at the instance of the female heirs and notwithstanding all those.

For the reasons aforementioned the judgments and decrees passed by the courts below in so far as dismissing the suit in respect of schedule-

A, lot 2 property by declining to pass a preliminary decree entitling the plaintiff to ⅓rd share over the same by virtue of the then existing provision

of Section 23 of the Act now cannot be sustained in view of the omission of the provision of section 23 of the Act from the statute which is the

subsequent event arising out of the change of law that cannot be lost sight of but has to be certainly taken note of as discussed above.

The appeal is accordingly allowed in part. The suit of the plaintiff is hereby preliminarily decreed declaring her ⅓rd share as also ⅓rd share of

defendant no. 2 and ⅓rd share of the defendant no.3 over schedule A; lot 1 and lot 2 property. The parties are directed to make amicable

partition by metes and bounds within a period of three months hence among themselves failing which any party/parties would be at liberty to apply

for final decree for the partition in respect of schedule A; lot 1 and 2 property in the light of the preliminary decree with the stipulation that for the

purpose, the possession of the parties, their convenience so far as possible and practicable would stand respected taking into consideration the

equitable factors as deemed just and proper.

In the facts and circumstances, the parties are to bear their respective cost of litigation throughout.