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Madhya Pradesh High Court · body

2008 DIGILAW 1253 (MP)

Prabhudayal (d) through L. Rs. v. Ramsiya

2008-10-23

A.K.SHRIVASTAVA

body2008
JUDGMENT 1. This first appeal under section 96 of the Code of Civil Procedure, 1908 has been preferred by defendant No.1 assailing the judgment and decree dated 14th December, 2001 passed by learned 1st Additional District Judge, Raisen in Civil Suit No. 17-A/2000 partly decreeing the suit of plaintiff-respondent No.1. 2. The facts leading to this first appeal are narrated in detail in para 2 to 10 of the judgment passed by this Court on 10.4.2007 when this first appeal was decided and allowed in part in terms of para 25 of the judgment. Thereafter, appellants who are LRs of defendant No.1 as well as plaintiff respondent No.1 filed review applications which have registered as MCC No. 1393/2007 and MCC No. 1339/2007 respectively. Review application MCC No. 1393/2007 which was filed by legal representatives of defendant No.1 was in regard to certain typographical errors and accordingly the said review application (MCC No. 1393/2007) was allowed on 8.1.2008 and disposed of with a direction mentioned in para 4 of the said order which reads thus: "4. In this view of the matter, since there is a typographical error in the judgment and the position is not disputed by learned senior counsel for the respondent-plaintiff, it is hereby held that in Khasra No.6, 7, 8, 21, 71/2 and 97 of village Rehma, LRs of defendant No.1 Prabhudayal namely Smt. Saroj Shrivastava and others are having 3/4 share and plaintiff - Smt. Ramsiya is having l/4th share. MCC No. 1393/2007 is, accordingly, allowed and disposed of with no order as to cost." 3. Review application (MCC No. 1339/2007) which was filed by plaintiff Smt. Ramsiya was also allowed since the amended provision of section 6 of Hindu Succession Act, 1956 (in short the 'Act') vis-a-vis to section 23 of the Act was not taken into consideration and the said review application of plaintiff Ramsiya was also allowed and this first appeal was kept open for a limited purpose only. It would be relevant to quote paras 8, 9 and 10 of the order dated 8.1.2008 passed in the review application which read thus: "8. It would be relevant to quote paras 8, 9 and 10 of the order dated 8.1.2008 passed in the review application which read thus: "8. This Court while deciding first appeal No. 4512002 files on behalf of LRs of defendant No. 1- Prabhudayal against appellant - Ramsiya, only considered section 23 of the said Act and after testing the case on the anvil of section 23 held that plaintiff cannot ask for partition in the dwelling houses as there is bar in section 23 of the said Act. This Court did not take into consideration that what would be the impact of section 6 of the said Act as amended by Amendment Act of 2005. I must fairly state that Shri Patel, learned senior counsel for plaintiff, addressed this Court while arguing the above said first appeal in respect to the provisions of section 6 of the Amendment Act of 2005 and, therefore, in view of the Division Bench decision of this Court Jaswantpuri and others (supra), this review application filed on behalf of plaintiff-Ramsiya is hereby allowed and that part of the judgment of First Appeal No. 4512002 holding that plaintiff is not entitled to any share in the dwelling houses of village Rehma and Talapura, is hereby directed to be reheard and the said first appeal be listed for hearing on that limited point only. 9. Accordingly, MCC No. 133912007 is also hereby allowed with no order as to costs. 10. Registry is hereby directed to list FA No. 4512002 for rehearing on a limited point only as indicated hereinabove." 4. In this manner for a limited purpose only that what is the impact of section 6 of the Act as amended by Hindu Succession (Amendment) Act, 2005 (for brevity 'the Amended Act of 2005') on the dwelling houses of Udaipura and Rehma is to be taken into consideration. The appeal on all other points has already been decided on 8.1.2008. 5. The appeal on all other points has already been decided on 8.1.2008. 5. The contention of Shri N.K. Patel, learned senior counsel is that section 23 of the Act which deals with special provisions in respect to dwelling house has been omitted from the said Act by Amended Act of 2005 and section 6 of the Act has been amended entitling the daughter of a coparcener shall by birth becoming a coparcener in her own right in the same manner as the son and would have the same rights in the coparcenary property as she would have had if she had been a son and shall be subject to the same liabilities in respect of the said coparcenary property as that of a son. The omission of section 23 and amended section 6 of the Act came into force with effect from 9.9.2005 viz. prior to the date of the passing of the judgment earlier on 10.4.2007 meaning thereby when the appeal was heard and decided the amended provision already came into force. 6. The contention of Shri Patel, learned senior counsel is that since the appeal is the continuation of a suit, therefore, plaintiff Ramsiya being the coparcener would also become a coparcener in view of amended section 6 of the Act and, therefore, so far as the dwelling house of the suit property is concerned, she is also having 1/4th share. 7. The contention of Shri B.P. Sharma, learned counsel appearing for appellants who are LRs of defendant No.1 is that the amendment is always prospective unless and until it is made retrospective in operation expressly or by necessary implication and, therefore, plaintiff cannot ask for a partition in respect of a dwelling house occupied by joint family until the male heirs choose to divide their respective shares therein. 8. The question which is required to be adjudged is whether plaintiff being a female heir can ask for partition of the dwelling house of a joint family. 8. The question which is required to be adjudged is whether plaintiff being a female heir can ask for partition of the dwelling house of a joint family. No doubt, before coming into force of Amended Act of 2005 certainly plaintiff being female heir of Hindu coparcener was not entitled to ask for partition of the dwelling house occupied by joint Hindu family until the male heirs choose to divide their respective shares therein but section 23 of the Act has been omitted by section 4 of the Amendment Act of 2005 which would mean that from the date of enforcement of amended provision to the Act, the female heir of a coparcener can ask for partition of the dwelling house because according to section 6 of the Act, her status is also that of a coparcener. The Supreme Court in Kolhapur Canesugar Works Ltd. and another v. Union of India and others [ AIR 2000 SC 811 ] in para 35 and 38 while considering the scope of omission of a provision in a particular statute vis-a-vis section 6 of the General Clauses Act has laid down the law of land that is not correct to say that in considering the question of maintainability of pending proceedings initiated under a particular provision of the law after the said provision was omitted the Court is not to look for a provision in the newly added statute for continuing the pending proceedings. It is also not correct to say that the test is whether there is any provision in the said statute to the effect that pending proceedings will lapse on omission of the particular provision. According to the apex Court in such a case the Court is to look to the amended provision in the statute which has been newly introduced after the omission of the previous provisions in order to determine whether a pending proceeding will continue or lapse. If, there is a provision in the amended statute that pending proceedings shall continue and be disposed of in accordance to the old provision as if the said provision has not been deleted or omitted then such a proceeding will continue. If the case is covered by section 6 of the General Clauses. If, there is a provision in the amended statute that pending proceedings shall continue and be disposed of in accordance to the old provision as if the said provision 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-material provision in the statute under which the newly amended provision has been framed in that case also the pending proceeding will not be affected by omission of that "particular provision or section. However, in absence of any such provision in the statute the pending proceedings would lapse on account of the omission of that particular provision or section. 9. In para 38 of the said decision, the Supreme Court further held that 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. The only exception is engrafted by the provisions of section 6 (1) of the General Clause Act. 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. 10. On going through the amended section 6 as well as omitted section 23 of the Act, there is no provision that pending proceedings shall continue under the old provision which has been omitted. On going through the Amendment Act of2005, it is revealed that it does not contain the saving clause which would mean that omitted section 23 of the Act is not saved for pending cases. On going through the Amendment Act of2005, it is revealed that it does not contain the saving clause which would mean that omitted section 23 of the Act is not saved for pending cases. Since there is no saving provision in favour of the pending proceedings, in view of the decision of Supreme Court Kollzapur Callesugar Wors Ltd. (supra), section 6 of the General Clauses Act has no application and therefore I am of the view that plaintiff-respondent No.1 Smt. Ramsiya is having 1I4th share in the dwelling house of Udaipura and village Rehma and is entitled to get those houses partitioned up to the extent of her share. 11. The present appeal has arisen from a partition suit filed by plaintiff Ramsiya who is respondent No.1. The suit was partly decreed on 14.12.2001 resulting into filing of this appeal. During the pendency of this appeal, section 23 has been omitted and section 6 of the Act has been amended by Amendment Act of 2005. Since the appeal is continuation of the suit, therefore, I am of the view that even in pending proceedings, the amended section 6 would be applicable which would mean that present plaintiff is also entitled to sue for partition in respect of a dwelling house of a joint Hindu family being a coparcener. 12. Thus, this appeal so far as it relates to the dwelling houses of Udaipura and Rehma is disposed of by holding that plaintiff-respondent No.1 is also having 1/4 share. Appellants who are the heirs of defendant No.1 Prabhudayal are entitled to 3/4th share in those houses. The cross objections of plaintiff is allowed to that extent. The other points have already been decided in judgment dated 10.4.2007. The decree of the trial Court is accordingly modified. 13. Looking to the facts and circumstances of the case, the parties are directed to bear their own costs.