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2008 DIGILAW 1071 (MP)

SHAKUNTALA DEVI SINGHAL v. GOVERDHAN DAS

2008-08-26

A.P.SHRIVASTAVA, S.SAMVATSAR

body2008
Judgment S.SAMVATSAR, J. ( 1. ) This appeal is preferred by the plaintiff being aggrieved by the judgment and decree dated 27/1/2004 passed by the 10th Additional District Judge (Fast Track Court) Gwalior, whereby the suit filed by the present plaintiff is dismissed. ( 2. ) The facts in a nut shell are that the plaintiff has filed the present suit alleging that she is daughter of late Shri Jagannath Prasad who died on 22/9/1969. As per the plaint allegation, Jagannath Prasad was the owner of two houses situated at Deedwanaoli, Lashkar Gwalior as described in the plaint map. ( 3. ) As per the plaint allegations, Jagannath Prasad survives by Goverdhan Das (Defendant No 1), Narayan Das, who is now dead and his heirs are the defendants No.2 and 6, Smt. Chhanno, who is also now dead and surviving by Smt. Vimla Devi and Smt Munni Devi (Defendants No.3 and 4) and Savitri Bai, who is dead and survived by Smt. Leela Devi and plaintiff. The appellant / plaintiff filed the suit for partition alleging that she has one-sixth share in the property. The defendants filed their separate written statements. Goverdhan Das and Narayan Das filed the written statement alleging that Jagannath Prasad before his death had executed a will dated 16/6/1968 in their favour, and hence the plaintiff has no right to file the suit. They have also raised a plea that the property in question being a dwelling house, hence present appellant has no right to claim partition. ( 4. ) The learned trial Court framed as many as 11 issues on the basis of pleadings of the parties, and after recording the evidence and appreciating the same has held that the alleged will executed by Jagannath Prasad is not proved. Hence, Goverdhan Das and Narayan Das have filed their cross objection in the present appeal. ( 5. ) The first question, which is under consideration is whether the will is proved or not. From perusal of the will, it is clear that the will is signed on the presence of two attesting witnesses, the copy of the will is Ex.D-1, which bears signature of two attesting witnesses i.e. Prakash Chand and Ratanlal. ( 6. ) To prove the alleged will, the defendants have examined only one attesting witness Ratanlal as DW-2. From perusal of the will, it is clear that the will is signed on the presence of two attesting witnesses, the copy of the will is Ex.D-1, which bears signature of two attesting witnesses i.e. Prakash Chand and Ratanlal. ( 6. ) To prove the alleged will, the defendants have examined only one attesting witness Ratanlal as DW-2. In his statement, he stated that the property in question was owned by Jagannath Prasad, who had constructed the house about 65-70 years back. He carries on business of repairing watches on a platform of the house owned by Jagannath Prasad. On 16/6/1968 at about 12:00 Jagannath Prasad called him and a will was executed in his presence in favour of Goverdhan Das and Narayan Das. This witness has further stated that the will was read over to him. He states that thereafter he and other witness Prakash Chand had signed in the will at place B to B and C to C respectively. In para 11 of his cross examination, he states that he does not know who were present at the time of execution of will. He states that when the will was executed Mama and Pappu were present. He further states that after signing the will, he went away and no one has signed in his presence. Thus, he states that when he signed the will, no one was present. ( 7. ) Section 63 of the Indian Succession Act, 1925 provides a mode of proving a will, which reads as under :- "63. Execution of unprivileged Wills.-- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules :- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence -and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary". As per Section 63-C of the Act, 1925 the Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator. Thus, for proving the will as per the provisions of Section 63 of the Act, 1925 it is necessary that the witnesses must have seen the testator signing the will in his presence. ( 8. ) In the present case, as per the statement of Ratanlal (DW-2), he has not seen the testator signing the will, hence the Court below has rightly held that the will is not proved in accordance with Section 63 of the Act, 1925. Moreover, there are contradictions in the statement of DW-1 and DW-2. The other attesting witness Prakash Chand is not examined by the defendants. In view of this fact, the learned Court below has held that the alleged will is not proved, and therefore, held that all the heirs of Jagannath Prasad have one-sixth share in the property ( 9. Moreover, there are contradictions in the statement of DW-1 and DW-2. The other attesting witness Prakash Chand is not examined by the defendants. In view of this fact, the learned Court below has held that the alleged will is not proved, and therefore, held that all the heirs of Jagannath Prasad have one-sixth share in the property ( 9. ) Now the question is about bar of Section 23 of the Hindu Succession Act, 1956, which provides that where a Hindu intestate has left surviving him or her both male and female heirs specified in class-1 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. In the present case, admittedly the plaintiff is a female heir of deceased Jagannath Prasad. The learned Court below has held that in view of this provision, plaintiff has no right to file the suit. ( 10. ) However, from perusal of the evidence, it appears that the house in question is not dwelling-house. Suresh Chand Jain (PW-1) in para 4 of his statement has admitted that in the first house there are three shops while the other house contains three shops. The said shops are on rent and the tenants are carrying their business in the said houses. So, the said houses cannot be said to be dwelling house wholly occupied by the members of family of the deceased Jagannath Prasad. Therefore, bar of Section 23 of the Act, 1956 does not arise, and therefore, the learned Court below has committed an error in dismissing the suit on this ground. ( 11. ) Moreover, by promulgation of the Hindu Succession (Amendment) Act, 2005, now, the question is what is effect of the said amendment. Whether that amendment will operate in the present case as retrospective and will affect the rights of the parties. ( 12. ) The Madras High Court in the case of G.Sekar Vs. Geeiha and others, 2007(54) AIC 808 (Mad), the Kerala High Court in the case of Narayan Vs. Meenakshi, 2006 (39) AIC 533 (Kerala), the Calcutta High Court in the case of Smt. Puspa Mukherjee and another Vs. ( 12. ) The Madras High Court in the case of G.Sekar Vs. Geeiha and others, 2007(54) AIC 808 (Mad), the Kerala High Court in the case of Narayan Vs. Meenakshi, 2006 (39) AIC 533 (Kerala), the Calcutta High Court in the case of Smt. Puspa Mukherjee and another Vs. Smt. Smritikana Mukherjee and others, 2008 (64) AIC 664 (Cal), and in the case of Kalipada Kirtan Vs. Bijoy Bag and others, 2008 (64) AIC 668, and the Karnataka High Court in the case of Rathnakar Rao Sindhe Vs. Smt. Leela Ashwath, 2007 AIHC 1133 has laid down that the deletion of Section 23 of the Hindu Succession Act is retrospective effect. ( 13. ) Relying on these judgments, learned counsel for the appellant submitted that as now there is no bar against a female heir of filing suit, the present suit can be decreed and set aside the impugned judgment and decree. He has also relied on judgment of the Apex Court in the case of Kolhapur Canesugar Works Ltd. and another Vs. Union of India and others, (2000) 2 SCC 536 , in which the Apex Court in para 37 has considered the meaning of omission and held as under: - "37. The position is well known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of Section 6 (1). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall not continue but fresh proceedings for the same purpose may be initiated under the new provision". In the present case, Section 23 of the Act, 1956 is omitted without replacing the same by any other provision, and therefore, the same shall be treated as it never existed in the statute, and hence will be applicable in the present case. ( 14. ) In reply to this argument, Shri N.K.Jain, learned senior counsel for the respondents has submitted that the deletion of Section 23 of the Act is not a retrospective, but will be prospective effect. In support of his arguments, he has relied on judgments of the Apex Court in the case of R. Rajagopal Reddy Vs. Padmini Chandrasekharan, 1995 MPLJ 402, Sheela Devi and others Vs. Lal Chand, 2007 (1) MPLJ 435, and in the case of Anar Devi and others Vs. Parmeshwari Devi and others, 2007 (1) MPLJ 467. ( 15. ) From perusal of these judgments, it is clear that in those cases the Apex Court has held that whether a provision is prospective or retrospective is to be decided on the basis of language, aims and objects for which the said amendment is carried out in the Act. From perusal of the Amendment Act, 2005, it is clear that a change is brought in the law amongst the Hindu and gives equal rights to the Hindu Joint Family both male and female. Thus, from the object and reasons, it is clear that intention of the legislature is to bring female and male heirs oft equal footing. By omitting Section 23 of the Act, 1956 no new right is created in favour of female, but only a bar of filing a suit is lifted. Thus, from the object and reasons, it is clear that intention of the legislature is to bring female and male heirs oft equal footing. By omitting Section 23 of the Act, 1956 no new right is created in favour of female, but only a bar of filing a suit is lifted. The female had a share in the property even before coming into force of Hindu Succession (Amendment) Act, 2005, but only restriction of their right shall bar for filing a suit for partition in the property which is kept by the family members, and the said bar is lifted. In view of this fact the said bar will operate retrospective and benefit of the said omission can be extended to the present appellant. In such circumstances, the appeal deserves to be allowed. ( 16. ) In the ultimate result, the appeal is allowed and cross objection stands dismissed. The impugned judgment and decree is hereby set aside and pass a preliminary decree of partition by holding that heirs of deceased Jagannath Prasad have one-sixth share in the property. Now the Court shall appoint a Commissioner for partition the property by way of one-sixth share each of the heirs of the deceased Jagannath Prasad. Appeal allowed.