HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU SECOND APPEAL No.141 o”
11. 03.2013 Prathipati Jogayyamma 1.
Vobhilineni Veera Venkata Satyanarayana And others Counsel for the appellant: Sri M.S.R.Subrahmanyam Counsel for the Respondents: Sri Venkateswara Rao Gudapati : : Cases referred: AIR 200.Supreme Court 2649 JUDGMENT
: The then learned Judge admitted this second appeal in view of substantial questions of law raised in ground Nos.9(a) and (b) of the memorandum.
Those substantial questions of law are as follows: a) whether on the facts and in the circumstances of the case, the appellant has a right to claim partition of B schedule items in view of the facts that a division could be inferred between the male members-defendants 1 and 2 by reasons of the facts (a) that they were living in separate door numbers, (b) that they were enrolled as votors in two different door numbers and (c) that they have separate ration cards and such admitted facts are inconsistent with their non-division of B schedule properties.
b) Whether in any view of the matter, the plaintiff is entitled to claim partition of items 2 and 3 of B schedule which cannot be considered as a dwelling house wholly occupied by members of the family within the meaning of that term under Section 23 of the Hindu Succession Act as item 2 is a cattle shed and item No.3 is a vacant site purchased by plaintiff father and not build upon.
The appellant's counsel filed a memo taking an additional ground in the second appeal as follows: "Whether, on the facts and in the circumstances of the case, in view of Amendment Act 39 of 2005 to Section 6 of the Hindu Succession Act, 1956, and deletion of Section 23 which came into force with effect from 09.09.2005 the appellant is also entitled to a share along with her brothers in respect of B schedule properties".
This additional ground of substantial question of law arose in view of the 2005 Act.
Effect of this additional substantial question of law has to be considered herein and decided.
2.
The plaintiff/appellant and the 3rd defendant/3rd respondent are sisters and the defendants 1 and 2/respondents 1 and 2 are their brothers, all of them being children of late Oblineni Dorayya and Veeramma.
The plaintiff filed the suit in the trial Court for partition of the plaint 'A' schedule properties into 4 equal shares and the plaint 'B' schedule properties into 12 equal shares and for allotment of one such share each to her, for possession of the same and for profits, both past as well as future.
It is her case that during the life time of Dorayya, there was partition of landed properties among Dorayya and the defendants 1 and 2 and the plaint 'A' schedule properties fell to the share of Dorayya.
The plaint 'B' schedule consists of vacant sites.
Dorayya died in December, 1970.
It is the plaintiff's case that Dorayya left his last Will and testament dated 02.11.1966 bequeathing life estate to his wife Veeramma and vested remainder to the plaintiff.
Veeramma died intestate in July, 1972.
Since mother died intestate possessed of the plaint 'A' schedule land, all the parties are entitled to 1/4th share each therein.
3.
The 3rd defendant remained ex parte.
It is contention of the defendants 1 and 2 that there was no partition among Dorayya and the defendants 1 and 2 and that Will dated 02.11.1966 is forged and that after death of their father, the defendants 1 and 2 partitioned their family properties in the year 1971 and that house portion and 'B' schedule properties combined together forms part of dwelling house of the defendants 1 and 2 and therefore are not liable for partition at the instance of the plaintiff.
4.
After trial, the trial Court granted preliminary decree for partition of 'A' schedule properties as prayed for; and denied partition of plaint 'B' schedule property.
On appeal by the plaintiff, the lower appellate Court dismissed the appeal holding that the plaintiff is not entitled to any share in the plaint 'B' schedule property since the defendants 1 and 2 are living jointly in the said house and therefore the suit becomes premature.
Thereupon, the plaintiff filed this second appeal, which was admitted by this Court on the above substantial questions of law.
5.
In this appeal, it is contended by the appellant's counsel that admittedly the plaintiff is residing in a portion of the joint family house and that the plaint 'B' schedule property cannot be construed as house property which is in occupation of members of joint family for their residence jointly and that therefore Section 23 of the Hindu Succession Act, 1956 (in short, the 1956 Act) is not applicable to the said property.
It is further contended that during pendency of this second appeal, the Hindu Succession (Amendment) Act, 2005 (in short, the 2005 Act) came into force and Section 4 thereof omitted Section 23 of the 1956 Act which is the principal Act and that it resulted in taking away of restriction contained in Section 23 of the 1956 Act.
6.
On the other hand, it is contended by the respondents' counsel that Section 4 of the 2005 Act which omitted Section 23 of the 1956 Act can only be prospective in nature and it has no retrospective operation and that it cannot be applied to pending civil proceedings which were commenced prior to the 2005 Act coming into force on 09.09.2005.
7.
Subject matter of this second appeal is only divisibility of the plaint 'B' schedule properties are concerned.
The Courts below granted decree for partition of the plaint 'A' schedule properties in favour of the appellant/plaintiff as prayed for and the said portion of the preliminary decree became final as none of the defendants 1 and 2 filed any appeal against the preliminary decree relating to the plaint 'A' schedule properties.
The defendants 1 and 2 placed strong reliance on Section 23 of the 1956 Act which was in the statute book upto coming into force of the 2005 Act omitting Section 23 of the Principal Act.
According to the defendants 1 and 2, vacant sites mentioned in the plaint 'B' schedule are appurtenant sites to joint family dwelling house.
Even though the house property is only one, each of the parties is occupying different portions of the house, the plaintiff being in occupation of the upstair portion of the house exclusively for her residence.
8.
Be that controversy as it may, the Apex Court had an occasion to consider effect of Section 4 of the 2005 Act on applicability of Section 23 of the Principal Act of 1956 in G.Sekar v Geetha1 Section 4 of the 2005 Act reads as follows: "Omission of Section 23.- Section 23 of the principal Act shall be omitted".
The matter reached the Supreme Court in G.Sekar (1 supra) from the Madras High Court wherein C.S.No.153 of 1996 was filed for partition of the suit property which inter aia consisted of residential premises bearing No.36, 1st Cross Street, West CIT Nagar, Madras.
That suit was filed prior to the 2005 Act coming into force.
In C.S.No.153 of 1996 a preliminary decree for partition of the suit property was passed in view of the 4th defendant also in his written statement sought for partition of the property.
The learned Single Judge held that Section 23 of the 1956 Act would not stand in the way of the plaintiff's suit for partition.
In the intra Court appeal filed as OSA, the Division Bench dismissed the appeal holding that even assuming there was any embargo at the time of filing the suit or passing judgment by the learned Single Judge as contemplated under Section 23 of the 1956 Act as it stood, in view of the amendment and deletion of such provision, it is obvious that there is no such embargo after 09.09.2005 and that after 09.09.2005 any female heir can seek for partition even in respect of a dwelling house.
Thereupon, the matter reached the Supreme Court.
The Supreme Court discussed the subject relating to Section 23 of the 1956 Act and its deletion by the 2005 Act and concluded: "21.
It is, therefore, evident that the Parliament intended to achieve the goal of removal of discrimination not only as contained in Section 6 of the Act but also conferring an absolute right in a female heir to ask for a partition in a dwelling house wholly occupied by a joint family as provided for in terms of Section 23 of the Act.
"22.
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.
-------------------------------------------------------- "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.
----------------------------------------------------- "26.
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 the 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.
-------------------------------------------------------- "28.
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." 9.
In that view of the matter, after the restrictive provision under Section 23 of the 1956 Act was omitted in the 2005 Amendment Act, it was not necessary for this Court to apply the said restriction now in this second appeal.
In any event, items 1 to 3 of the plaint 'B' schedule are all vacant sites and not dwelling houses, even though they are stated to be appurtenant sites for the dwelling house.
Therefore, this second appeal is liable to be allowed by applying Amended provisions of the Hindu Succession Act, 1956 as it stands today.
All the substantial questions of law are answered accordingly.
10.
In the result, the second appeal is allowed granting preliminary decree in favour of the plaintiff/appellant for partition of the plaint 'B' schedule properties into 12 equal shares and for allotment of one such share to the plaintiff/appellant.
No costs.
____________________________ SAMUDRALA GOVINDARAJULU,J Dt.11th March, 2013