Heard learned counsel for the parties and perused the record.
The short question involved in this second appeal is as to whether the provisions of Hindu Succession (Amendment) Act, 2005 can be given effect to in the pending proceedings ?
The brief facts giving rise to this second appeal are that the plaintiff-appellants have filed a suit for partition on the ground that the appellant no.1 being the daughter of late Sri Dargahi Lal and the appellants no.2 and 3 being the daughter's daughter (grand daughter) of late Sri Dargahi Lal had inherited the undivided share in the immovable property left by Sri Dargahi Lal. The suit was contested by the respondents, who are none other than widow and son of late Sri Dargahi Lal. The main ground of challenge was that the appellants being the daughter and grand-daughter of late Sri Dargahi Lal could not claim partition of their share as provided under Section 23 of the Hindu Succession Act, 1956. Section 23 as it stood prior to the Amendment Act, 2005 is reproduced as under:-
"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."
A bare perusal of provisions of Section 23 reflects that the right of any female 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. Thus, the female heir although having share in the house, could not claim partition unless a male hair chooses to seek partition of his respective share. Meaning thereby that if a male heir files a suit for partition of his share, the female heir will also be entitled to seek relief of division of her share in the same suit. The learned trial court dismissed the suit filed by the appellants by the judgment and decree dated 18.08.1999. Feeling aggrieved by the aforesaid judgment and decree, the appellants filed first appeal being Regular Civil Appeal No.161 of 1999, which was also dismissed by Second Additional District Judge, Faizabad vide judgment and order dated 24.01.2002. Being dissatisfied with both the aforesaid judgments, the appellants have preferred this second appeal which has also admitted for hearing by the order dated 15.02.2002.
Learned counsel for the appellants has submitted that during the pendency of the second appeal, the Hindu Succession (Amendment) Act, 2005 came into force and the provisions of Section 23 of the Hindu Succession Act were omitted. The effect of omission of Section 23 would be that now female heir will also be entitled to claim division of her share irrespective of the fact whether the male heir files a suit for partition or not ? The submission on behalf of the appellants is that since the second appeal is a continuation of the suit filed by the appellants, therefore, the Amendment Act, 2005 referred to above will be fully applicable in the present case and the matter should be remitted back to the trial court concerned for decision afresh in view of the bar created by Section 23 having being removed by the Amendment Act, 2005.
Learned counsel for the respondent has on the other hand submitted that the Hindu Succession (Amendment) Act, 2005 came into force w.e.f. September 9, 2005 when the original suit as well as first appeal had already been decided. Since the appellants had filed suit for partition much earlier to the year 2005, the benefit of the Amendment Act cannot be given to the appellants because the Amendment Act nowhere provides that it would have retrospective effect.
Thus, the only controversy which is to be decided by this Court is as to whether the benefit of Hindu Succession (Amendment) Act, 2005 can be given to the appellants or not ?
Learned counsel for the appellants has placed reliance upon a judgment of Hon'ble Bombay High Court, where it has been held that by the Amending Act enforced from 09.09.2005, the provisions of Section 23 of the Hindu Succession Act has been deleted. Thus, the embargo contained in Section 23 stood removed. The Hon'ble Bombay High Court also relied upon a case of the Hon'ble Apex Court reported in AIR 1959 SC 577 and (2000) 7 SCC 357 in which the Hon'ble Apex Court has held that it is well settled principle that the appellate Court is entitled to take into consideration any change in law. It is well settled that it is the duty of a Court, whether it is trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. The Hon'ble Bombay High Court has further gone to hold that the deletion of Section 23 from the Hindu Succession Act, though has taken place during the pendency of the appeal, its effect will have to be taken into consideration while deciding the appeal. Similar view has been expressed by Hon'ble Kerala High Court in the case of Santhosh Kumar vs. Baby alias Chandravalli (R.S.A. No.671 of 2006) in which Hon'ble Kerala High Court has held that after the omission of Section 23 of the Hindu Succession Act by Amendment Act, 2005, the Courts can take notice of the changed law and decide the case in accordance with law.
It is not disputed between the parties that by the Hindu Succession (Amendment) Act, 2005, the bar created by Section 23 of the Hindu Succession Act has been removed and now a female heir can also seek partition irrespective of the fact as to whether a male heir claims partition or not ? Although the bar of Section 23 was very much there when the appellants filed the suit for partition and thereafter filed the first appeal but during the pendency of second appeal, which was filed in the year 2002, the Amending Act No.39 of 2003 came into effect and Section 23 was omitted. Thus, in view of above law laid down by the Hon'ble Apex Court as well as Hon'ble Bombay and Kerala High Courts, I am of the view that the benefit of the Amending Act should also be given to the appellants. The proceedings of partition are still pending in the form of second appeal and it is a settled law that second appeal is also considered as continuation of the suit and as such in view of the Amending Act, 2005 the matter deserves to be remitted back to the trial court for decision afresh in the light of Hindu Succession (Amendment) Act, 2005 and the observations made hereinabove in this judgment.
In the result, the appeal is allowed and the impugned judgment and order dated 18.08.1999 passed by the Civil Judge (Junior Division) Sadar, Faizabad and the judgment and order dated 24.01.2002 passed by the Second Additional District Judge in Regular Civil Appeal No.161 of 1999 are hereby set aside. The matter is remitted back to the trial court for a decision afresh in the light of directions and observations made in this judgment. Office is directed to send back the record of lower court, if received. It is further provided that since the matter relates to the year 1993, the trial court is expected to expedite the final disposal and decide the case at the earliest.
No order as to cost.
Order Date :- 8.10.2014 Rakesh/-