JUDGMENT:- Heard. Admit on the following substantial question of law Whether the lower Appellate Court was justified to determine the shares of the parties by considering that the provisions of Section 23 of the Hindu Succession Act. 1956 (as amended by amendment Act 2005), was applicable to the facts of the case? 2. Heard forthwith with the consent of the learned counsel for the appellants and the learned counsel for the respondents. The learned counsel for the respondents waives service. 3. This is a second appeal filed by the original defendants challenging the judgment dated 29/7/2009 passed by the learned District Judge-I, Pandharkawda in Regular Civil Appeal No.69/2004 whereby the appeal preferred by the appellants came to be dismissed but however, the shares of the parties were modified as stated in the impugned judgment and it is held that the respondents are entitled for partition and separate possession of their shares in the suit property as well as suit land. 4. The respondents filed a suit for partition and separate possession on the ground that their common ancestors one Sakharam who died on 25th May, 1991 was survived by his wife - respondent no.1. and a son, who has now expired and is represented by his legal heirs who are the appellants herein, and two daughters who are the respondent nos.2 and 3, and as such entitled to the land bearing Gat No.215 admeasuring 11 H, 79 R situated in village Mukutban and the house property as described at para 5 of the plaint. It is further their case that the entire suit property is in possession of the appellants and although the respondents have a share and right therein, the appellants were not allowing them to enter into the suit field nor any part of the house. The income of the property is being appropriated by the appellants. Consequently, the respondents demanded their share in the suit property as well as the agricultural income and the suit came to be filed claiming the partition of the suit field as well as the dwelling house and for separate possession. Original defendant filed the written statement admitting the genealogy of the parties as well as that the suit agricultural land and suit house were the ancestral properties but however disputed the share of the respondents in the suit property as claimed by them. Original defendant filed the written statement admitting the genealogy of the parties as well as that the suit agricultural land and suit house were the ancestral properties but however disputed the share of the respondents in the suit property as claimed by them. It was further their contention that the respondents being female heirs were not entitled to pray for partition and separate possession of their share in the dwelling house. 5. The learned trial Judge after framing the issues and recording the evidence partly decreed the suit filed by the respondents by judgment and decree dated 22/3/2004. The learned trial Judge came to the conclusion that the parties to the suit are having a share in the entire suit property i.e. agricultural land and the house property as described at para 5 of the plaint and the shares of the parties were accordingly determined but the share in respect of the agricultural land only was determined by the leaned trial Judge. Consequently, the partition of the agricultural property was accordingly ordered by the leaned trial Judge. An enquiry was also directed to be held under Order 20, Rule 13(l)(c) of the Civil Procedure Code. The claim for partition and separate possession of the house property as described in para 5 of the plaint came to be dismissed. 6. The appellants preferred an appeal before the learned District Judge being Regular Civil Appeal No.69/2004. By judgment dated 29th July, 2009 the appeal came to be dismissed but however in view of the amendment to Section 23 of the Hindu Succession Act, the share of the parties with regard to the dwelling house as well as the agricultural land was determined and separate possession and partition thereof was ordered. 7. Being aggrieved by the said judgment, the present appeal has been preferred by the appellants. The learned counsel for the appellants has assaulted the judgment of the lower Appellate Court on the ground that the Amendment to Section 23 of the Hindu Succession Act is not applicable to the pending proceedings and that the shares have not been correctly determined. 8. The Division Bench of this Court in the judgment reported in 2007(3) Bombay 197 : [2007(2) ALL MR 679] (Smt. Kaushalyabai Biharilal Pateriya (deceased by L.Rs.) and Anr. Vs. Hiralla Bhgwandas Gupta (deceased by L.Rs.) & Ors. has held at paras 14 and 17 as under - "14. 8. The Division Bench of this Court in the judgment reported in 2007(3) Bombay 197 : [2007(2) ALL MR 679] (Smt. Kaushalyabai Biharilal Pateriya (deceased by L.Rs.) and Anr. Vs. Hiralla Bhgwandas Gupta (deceased by L.Rs.) & Ors. has held at paras 14 and 17 as under - "14. Now coming to the second limb of argument of learned counsel for the appellants and opposition to the same by the learned counsel for the respondent, we find that the Amending Act No.39 of 2005 would clearly have effect on the pending proceedings including the present appeal. It is well settled that appeal is a continuation of the suit as held by Apex Court in the case of The State of Kerala Vs. K. M. Chari a Abdulla & Co., reported in AIR 1965 SC 1585 , the decision relied upon by the learned counsel for the appellants on the case of United Bank of India, Calcutta Vs. Abhijit Tea Co. Pvt. Ltd., (2000)7 SCC 357 : ( AIR 2000 SC 2957 ), particularly paragraph 20, aptly apply in the instant case. The Hon'ble Apex Court has clearly held that it becomes the duty of the Court hearing an appeal to take notice of changes in law and also give effect to the same." "17. In the present case, what we find is that Sec.23 of the Hindu Succession Act, 1956 prohibited a female heir from claiming partition until the male heirs choose to divide their respective shares. By amending Act No.39 of 2005, effective from 5-9-2005. this provision of Sec.23 has been deleted. Thus, the embargo contained in Sec.23 stood removed for the first time by Amending Act No.39 of 2005. In the statement of objects and reasons. the reason for omission of S.23 is stated in the following words: "...... It is also proposed to omit the said Section so as to remove the disability on female heirs contained in that section"." 9. The Apex Court in the judgment reported in (2009)6 S.C.C. 99 : [2009 ALL SCR 2476] (G. Kesar Vs. Geetha and others) held at paras 27. 31 and 32 as under – "27. Restrictions imposed on a right must be construed strictly. In the context of the restrictive right as contained in Section 23 of the Act. The Apex Court in the judgment reported in (2009)6 S.C.C. 99 : [2009 ALL SCR 2476] (G. Kesar Vs. Geetha and others) held at paras 27. 31 and 32 as under – "27. 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 dependent on the right of a co-sharer in the joint property. Concedely a preliminary decree could be passed declaring each co-sharer to be entitled to l/5th share therein in terms of the provisions contained in Section 8 of the Act. l/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." "31. It is now a well-settled principle of law that the question as to whether a statute having prospective operation will affect the pending proceedings would depend upon the nature as also the 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 stature wild be a question which must be posed and answered." "32. It is trite that although omission of a provision operates as an amendment to the Statute 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." In view of the said judgment of the Apex Court the point as to whether the provisions of Section 23 of the Hindu Succession is applicable to the pending proceedings is no longer res integra. 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." In view of the said judgment of the Apex Court the point as to whether the provisions of Section 23 of the Hindu Succession is applicable to the pending proceedings is no longer res integra. Thus, though the amendment to Section 23 came into force during the pendency of the appeal even assuming there was an embargo at the time of the filing of the suit or passing of the judgment by the learned trial Judge as contemplated under Section 23 of the Act as it stood, in view of the amendment and deletion of such provision it is obvious there is no such embargo after 9/9/2005. In other words after the said date a female heir can seek for partition even of the dwelling house. The subsequent event arising out of the change of Law is obviously to be applied and therefore, the question of applying the bar that arises under Section 23 of the Act no longer arise for consideration. 10. As such the learned District Judge as such was justified in holding that the dwelling house is also to be partitioned as per shares of the parties. 11. According to the learned counsel for the appellant the learned District Judge has committed an error in law whilst determining the shares of the parties as the respondent no.1 is not entitled to any share by way of inheritance as she is entitled to only in the share of the deceased Sakahram. This position is not disputed by the learned counsel appearing for the respondent. Accordingly, the learned counsel for the appellant and respondent have filed a joint pursis determining the shares of the respective parties which is duly signed by them. The said pursis is marked "A" for identification. The substantial question of law is answered accordingly. 12. Considering that both the counsels agree that the shares as determined by the lower Appellate Court are not in accordance with the provisions of law, I find that the impugned judgment of lower Appellate Court deserves to be modified as far as the shares of the parties are concerned in the manner as stated in the joint pursis. In view of the above, the appeal is partly allowed. In view of the above, the appeal is partly allowed. The impugned judgment of the lower Appellate Court dated 29/7/2009 is modified to the extent that the shares of the parties are held to be as per joint pursis recorded at Annexure "A" referred to herein above. The remaining reliefs granted by the Courts below stand confirmed. There shall be no orders as to costs. Appeal stands disposed of accordingly. Appeal partly allowed.