ORAL JUDGMENT
1. Heard Mr.Surel Shah for the Appellant. The Appellant is the Original Defendant no.1 in R.C.S.no.302/99 filed by Respondent no.1 and 2 in the Civil Court at Ichalkaranji for partition and separate possession of four properties described in paragraphs 1-A to 1-D of the plaint. It is admitted position that the Plaintiffs are real sisters of the Defendants. It is also admitted position that the father Dadu died intestate. One of the properties viz.property no.1-C was the separate property of the deceased Mother Tarabai and it was the claim of the Appellant/Defendant no.1 that she had executed a Will in respect of that property in favour of the son of the Appellant. The Appellant also raised the defence regarding non inclusion of one property bearing City Survey no.4. By Judgment and Order dated 29/1/2004, learned Jt.Civil Judge, J.D., Ichalkaranji partly decreed the suit and passed decree for partition and separate possession in respect of the properties at Sr.1-A and 1-B awarding 5/40th share to each of the plaintiffs. Property no.1-C was held to be validly bequeathed by deceased Tarabai. Property 1-D which is a dwelling house was held to be the property in which the parties to the suit had right, but by construing the provisions of Section 23 of the Hindu Succession Act, 1956 prior to its deletion by Hindu Succession (Amendment) Act, 2005 with effect from 9.9.2005, the decree for partition was declined in respect of dwelling house being property no.1-D.
2. Being aggrieved by this decree, the original Plaintiffs filed Reg.Civil Appeal no.160/2005 whereas the present Appellant has filed Reg.Civil Appeal 279/2005 in the District Court, Kolhapur. Subsequently those appeals were transferred to the Court of Additional District Judge,Ichalkaranji and hence, were assigned the numbers of the year 2005 though they were filed in the month of March,2004.
3. Pending the Appeals, Hindu Succession(Amendment) Act, 2005 came into force w.e.f. 9/9/2005. Provisions of Section 23 have been deleted from the statute. The learned District Judge, Ichalkaranji thereafter decided both the Appeals by common judgment. R.C.A. 160/2005 filed by the original Plaintiffs was partly allowed and a decree for partition was passed in respect of dwelling house, whereas R.C.A. 279/2005 filed by the present Appellant was dismissed. The findings regarding the property at Sr.1-C was not disturbed.
4. It is against this decree whereby the Trial Court and the District Court had granted decree in respect of property 1-A and 1-B and the decree in respect of property no.1-D was passed against the Appellant/ Original Defendant no.1, hence, the present Second Appeal is filed. The correctness of the findings in respect of property 1-C, which has been held to be validly bequeathed by Tarabai to the son of the Appellant, is not challenged in this Second Appeal and hence, the controversy involved in this Second Appeal is restricted to the properties at Sr.1-A, 1-B and 1-D.
5. Relationship between the parties is admitted. The fact that the aforesaid three properties were owned by Dadu, father of the Appellant and the Respondents is also admitted. The challenge in Second Appeal is, however, regarding the application of provisions of Hindu Succession(Amendment) Act,2005 and certain other points.
6. Mr.Shah advanced the following submission.
1. Since Section 23 of the Hindu Succession Act, 1956 was on the statute book when the suit was filed, the legal provisions as applicable at the date of institution of the suit must be held to be applicable and merely because the said section was deleted on 9.9.2005, the District Court could not have awarded the decree for partition in respect of the dwelling house.
2. Since the Plaintiffs earlier filed a suit simplicitor for injunction, the subsequent suit for partition which had been filed without obtaining leave under Order 2 Rule 2 of the Code of Civil Procedure, 1908 was not maintainable and was barred.
3.The suit for partition was even otherwise barred by limitation since, the right in favour of the original Plaintiffs had accrued in the year 1972 and the suit filed 12 years thereafter was barred by limitation.
I have carefully considered all the submissions. It is necessary to deal with submissions 2 and 3 in the beginning.
7. The submission regarding bar of Order 2 Rule 2 of the Code, in my opinion, is not sound. The Original Suit was a suit simplicitor for injunction and merely because that suit was filed, it cannot be held that the plaintiffs had any cause of action for filing a suit for partition. The causes of action in both the suits are entirely different and distinct and hence the test for applicability of Order 2 Rule 2 of the Code is not satisfied. The Learned Judge of the District Court has properly considered this aspect in paragraphs 21 and 22 of the Judgment and there is no legal infirmity in the said findings.
8. The third submission regarding the bar of limitation also does not have much merit. On perusal of the issues in the Trial Court and the points for consideration in the District Court, they do not indicate that even the issue or point in this regard was framed. There is nothing to indicate that this submission was specifically advanced. Limitation is always a mixed question of law and fact and cannot be allowed to be agitated for the first time in the Second Appeal. Even otherwise, there is nothing to indicate, neither pleading nor evidence is led by the Appellant/Defendant no.1, that there was an ouster of the Plaintiffs or defendant no.2 at any point of time. Hence, there is no merit in the submission regarding limitation.
9. The first submission regarding applicability of Section 23 of the Hindu Succession Act,1956, though appears to be attractive at first blush, and advanced by Mr.Shah by relying on two judgments of the Supreme Court to which reference will be made hereafter; does not have much merit if deeper scrutiny of the provisions of law and the said submissions is made.
Section 23 prior to deletion read thus- Special provision respecting dwelling-house- 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, they, 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 :
10. The learned District Judge has dealt with this aspect by holding that since defendant no.2, who was admittedly a male member, also wanted partition, the bar contained in Section 23 prior to its deletion would not apply. The reasoning given by the learned District Judge in paragraph 10 and 13 of the impugned judgment deserves to be upheld and accepted. Mr.Shah however urged that Section 23 has not been considered in its proper perspective and for that purpose Mr.Shah relied on two judgments of the Supreme Court.
11. Mr.Shah relied upon the case of Sheela Devi & Ors. V.Lal Chand and Anr.reported in JT 2006 (12) SC 610 (1) and heavy reliance was placed particularly on the observations in paragraph 23 of the said Judgment.
The second judgment which is relied upon by Mr.Shah is G.Sekar Vs.Geetha and Ors., 2009 (5) Mh. L. J. 755 (2) and particularly the following observations in paragraph 29 of the said judgment.
1. JT 2006(12)SC 610
2. 2009 (5) Mh. L. J. 755
"Even otherwise, it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India as the fact remains that section 23 of the Hindu Succession Act as it stood was to be applicable on the date of the institution of the suit. Respondents may file a new suit and obtain a decree for partition."
12. In my opinion, both the judgments do not support the submissions of Mr.Shah. In fact the subsequent judgment in terms lays down the proposition of law which is completely contrary to the submissions advanced by Mr.Shah. So far as the first judgment is concerned, the said judgment does not deal with the provisions of Section 23 of the Hindu Succession Act, 1956. The said judgment really deals with the provisions of Section 6 of the Hindu Succession Act, 1956 prior to its substitution by the present Section 6 w.e.f. 9.9.2005. The said judgment would be, therefore, of no assistance for deciding the present case.
13. The second judgment and particularly observations in paragraph 29, are being relied upon, completely out of context. The Supreme Court has in fact considered the legal effect of deletion of Section 23 in paragraph 22 to 25 of the said judgment, which reads thus-
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.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 to1/5th share therein in terms of the provisions contained in Section 8 of the Act. 1/5th 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 s. 8 must be construed in the context of s. 6 of the Act. We accordingly hold that the provisions of s. 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, s. 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.
23. 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.
24. 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.
25. It is trite that although omission of a provision operates as a n 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-`-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:
"5. Now it has been held by this Court in State of Punjab v. Mohar Singh (AIR 1955 SC 84), that S. 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:
"9. 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 s. 153-C of the Act of 1913. This does not indicate that the rights created by s. 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 s. 6 of the General Clauses Act. But it is said that s. 24 of the General Clauses Act puts an end to the notification giving power to the District Judge, Poona to hear the application under s. 153-C of the Act of 1913 as that notification is inconsistent with s. 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 s. 6 of the General Clauses Act the proceeding in respect of the application under s. 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 s. 6 would become infructuous."
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 s. 645 had stood alone and had not been followed by s. 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 s. 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:
"13. 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.
14. 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.""
14. In view of this legal position, as far as the third submission is concerned apart from the fact that reasons given by the Learned District Judge, which are approved; on account of the law laid down by the Supreme Court in paragraphs 22 to 25 in the case of G.Sekar, (supra) even the third submission does not raise any substantial question of law. No other submission was advanced. As clarified above, question regarding the correctness of the findings in respect of the property at Sr. 1-C is not gone into in this Second Appeal particularly because, no one is appearing for the Respondents and it is not known whether the original Plaintiffs have filed any Second Appeal challenging those findings and denial of decree in respect of prayer 1-c.
15. With the aforesaid clarification, the Second Appeal is dismissed.