JUDGMENT : V. Nath, J. The plaintiffs have filed this appeal against the judgment and decree dated 08.05.1986 passed in P.S.No.41/79 by the Additional Sub Judge III, Chapra dismissing their suit. 2. The P.S.No.41/79 was filed by the plaintiffs for declaration of their title and possession over the property mentioned in Schedule-I of the plaint on the basis of their purchase and for declaration that the construction of wall in the said property by the defendant is wrong and illegal. The plaintiffs have further prayed for declaration of their possession over the said property and for removal of wall constructed by the defendants at their cost. In the alternative the plaintiffs have sought the relief for partition of their share in the properties mentioned in Schedule-III and IV by metes and bounds to the extent of 2½ dhurs out of 8¾ dhurs land mentioned in Schedule-III, and 3 Katha 10 Dhurki land out of 9 Katha 1½ dhur as mentioned in Schedule-IV. 3. It would be apt to mention here that in Schedule-I of the plaint, the plaintiffs have given the description of 2½ dhur of land out of 8¾ dhur; in Schedule-II, the description of 3 katha 10 dhurs out of 9 katha 1½ dhur has been given; in Schedule-III, the description of the entire 8¾ dhur land has been given and in Schedule-IV, the description of entire 9 katha ½ dhur of land has been given. 4. After filtering unnecessary details, the facts required to be frescoed are that admittedly the properties mentioned in Schedule-III and Schedule-IV were respectively the homestead land with house and agricultural land belonging to Sitaram Sah. The said Sitaram Sah had a son Bhagwati Sah and a daughter Lagni Devi and the name of his second wife was Maheshwari Devi whom he married after the death of his first wife. The plaintiffs have claimed their title over the suit property described in Schedule-I and II on the basis of purchase from Lagni Devi, who is the daughter of Sitaram Sah. The said Lagni Devi has been impleaded as defendant no.5 in the suit whereas the sons of Late Bhagwati Sah has been impleaded as defendant nos. 1 to 3 and his widow has been impleaded as defendant no.4. It is the case of the plaintiffs that Sitaram Sah got 8¾ dhur homestead land alongwith house towards west in partition with his cosharers. 1 to 3 and his widow has been impleaded as defendant no.4. It is the case of the plaintiffs that Sitaram Sah got 8¾ dhur homestead land alongwith house towards west in partition with his cosharers. Further he got 9 katha ½ dhur agricultural land also in partition with his cosharers. It has been asserted by the plaintiffs that Sitaram Sah executed a farzi deed of conditional sale, which was in fact a deed of mortgage, in favour of his wife Maheshwari Devi on 09.04.1954 for Rs. 1,000/- for the entire 9 katha ½ dhur of agricultural land. However, after the death of Sitaram Sah in 1961, there was a partition by way of family arrangement in which Lagni Devi, who was living in her “Naiher” after separating from her husband, was given 2½ dhur share in homestead land and house towards west over which she came in exclusive possession. Similarly the agricultural land was also partitioned in which Lagni Devi got 3 katha 10 dhur land in her share and came in exclusive possession. It is the claim of the plaintiffs that they have purchased the said 2½ dhur homestead land with house and 3 katha 10 dhur of agricultural land from Lagni Devi by registered sale deed 18.01.78 for valuable consideration and have also come in possession over the same on the said basis. 5. The vendor of the plaintiffs namely Lagni Devi, impleaded as defendant no.5, did not appear in the suit. However, the defendant nos. 1 to 4 contested the claim of the plaintiffs by filing their joint written statement. It is the case of the contesting defendants that Lagni Devi was never deserted by her husband and she never resided in her “Naiher”. The allotment of 2½ dhur of homestead land alongwith house to Lagni Devi in her share has been specifically denied and it has been further asserted that Maheshwari Devi acquired exclusive title over 9 katha 1½ dhur of agricultural land on the basis of conditional sale dated 09.04.1954 in her favour by Sitaram Sah who failed to return the consideration amount within the stipulated period of two years resulting in the conditional sale becoming absolute. It has been further averred that Maheshwari Devi later on sold the said land to the defendant no.4 Nageshwari Devi by registered sale deed dated 11.06.71 and thus the defendant no.4 acquired absolute title and possession over the same. The contesting defendants have denied the title of Lagni Devi over any part of property of Sitaram Sah as mentioned in Schedule-III and IV and have asserted that the plaintiffs have not acquired right, title and possession over the lands mentioned in Schedule-I and II on the basis of their purchase from the defendant no.5 Lagni Devi. 6. In view of the rival pleadings of the parties, the trial court framed issues out of which issue no.4 was decided as material issue. The said issue no.4 is as follows:- Issue No.4. Whether Most. Lagni Devi had any right to execute the sale deed and executed a valid sale deed with regard to the suit lands in favour of the plaintiffs?. 7. After considering the pleadings and evidence of the parties, the trial court has come to the finding that Sitaram Sah died after 1958. The learned trial court has further come to the finding that as Lagni Devi was married and not a widow or deserted or separated woman she had only a right of residence in the house in view of Section 23 of the Hindu Succession Act, 1956 but no entitlement to transfer the property given in Schedule-I of the plaint by sale in favour of the plaintiff. The learned court below has further come to the finding that the transfer by Sitaram Sah in favour of his wife of 9 Katha ½ dhur of agricultural land, mentioned in Schedule-IV of the plaint, was through a deed of conditional sale and as he did not return the money as per the condition, Maheshwari Devi acquired absolute title and possession over the same and Lagni Devi acquired no title by inheritance in the same and accordingly had no right to sell the said property. The learned court below, therefore, held that Lagni Devi had no title and interest in Schedule-I and II property. The issue no.4, therefore, was decided against the plaintiffs and suit was accordingly, dismissed. 8. Heard Mr. Sharvan Kumar Singh, the learned senior counsel appearing on behalf of the appellants and Ms. Veena Rani Prasad, the learned counsel appearing on behalf of the contesting respondents. 9. Mr. The issue no.4, therefore, was decided against the plaintiffs and suit was accordingly, dismissed. 8. Heard Mr. Sharvan Kumar Singh, the learned senior counsel appearing on behalf of the appellants and Ms. Veena Rani Prasad, the learned counsel appearing on behalf of the contesting respondents. 9. Mr. Singh, the learned senior counsel, has firstly submitted that the plaintiffs have been non-suited with regard to the claim over homestead land and house as mentioned in Schedule-I of the plaint only on the ground of the restriction envisaged under Section 23 of the Hindu Succession Act, 1956. It has been canvassed that the said restriction now no more exists after Section 23 has been omitted by Hindu Succession (Amendment)Act, 2005 and the change of law must be taken into notice by this Court exercising the first appellate jurisdiction and the issue should be decided accordingly. It has been urged that admittedly Lagni Devi was the daughter of Sitaram Sah and was entitled to a share in his property after his death and she was thus entitled to confer a valid right in favour of the transferee-plaintiffs. It has also been contended that there are sufficient evidence on record to show that Lagni Devi had been allotted 2½ dhur of homestead land alongwith house in the western portion in partition by way of family arrangement and she has been coming in exclusive possession over the same. It has been also submitted that the appeal is a continuation of the suit, and therefore, even when the partition as claimed is not established, the appellants who are purchasers from admitted cosharer Lagni Devi of the suit property, are entitled to the alternative relief for partition as prayed. 10. The learned senior counsel has next urged that the deed (Ext.A) executed by Sitaram Sah in favour of his wife Maheshwar Devi was not a conditional sale deed but in fact a mortgage with conditional sale but in any view of the matter as the said deed was a farzi deed and had not been acted upon, and therefore, it would be of no consequence concerning the right, title and interest of defendant no.5 Lagni Devi in the suit property as mentioned in Schedule-IV of the plaint. 11. Ms. 11. Ms. Veena Rani Prasad, the learned counsel for the contesting respondents, in reply, has submitted that no benefit can be taken by the appellants out of the omission of Section 23 from the Hindu Succession Act, 1956 by the amendment because the right of the parties stood crystallized on the date of the suit which had been filed in the year 1979 when the said provision was there in the statute. It has been contended that there is nothing in the Hindu Succession (Amendment) Act, 2005 to show that the provisions introduced by the amendments are retrospective in operation and would also affect the vested right, and thus Lagni Devi had no right to transfer the homestead land alongwith house as described in Schedule-I of the plaint to the plaintiffs and confer a valid title to them. It has been next submitted that Sitaram Sah had executed the conditional sale deed in the year 1954 in favour of Maheshwari Devi and it was not a mortgage deed as asserted by the plaintiffs. It has been further contended that there is no evidence to establish that the said transaction was not acted upon rather there are sufficient materials to show that Maheshwari Devi acquired title and possession over the entire agricultural land described in Schedule-IV of the plaint which she subsequently transferred to defendant no.4 Nageshwari Devi by registered sale deed dated 11.06.71 and the transferee thereafter came in exclusive possession of the same and has been continuing as such. It has thus been emphasized that Lagni Devi had no right, title and interest in the property described in Schedule-I and II of the plaint to transfer the same by sale in favour of the plaintiffs. 12. In view of the rival contentions of the parties, the following points emanate for determination in this appeal: (i) Whether the defendant no.5 Lagni Devi had the title and possession over the property described in Schedule-I and II of the plaint and whether the plaintiffs acquired valid title and possession over the said property by purchase from Lagni Devi? (ii) Whether the impugned judgment and decree of the court below is sustainable in law as well as on facts? 13. For the convenience sake, both the points are taken up together for determination. (ii) Whether the impugned judgment and decree of the court below is sustainable in law as well as on facts? 13. For the convenience sake, both the points are taken up together for determination. The basic facts are not in dispute that the suit properties originally belonged to Sitaram Sah which he got after partition with his co-sharers. It has also not been disputed that Sitaram Sah had executed a deed, purporting to be a conditional sale deed for Schedule-IV land in favour of his wife Maheshwari Devi on 09.04.54, and the said Maheshwari Devi later on by sale deed dated 11.06.71 had transferred the said land in favour of the defendant no.4 Nageshwari Devi. The defendant no.5 Lagni Devi has also been accepted by the parties to be the daughter of Sitaram Sah. 14. As mentioned earlier, the property described in Schedule-I of the plaint is the homestead land with house which the plaintiffs claim to have purchased from the defendant no.5, Lagni Devi out of the entire homestead land and house of the share of Sitaram Sah as described in Schedule-III. Similarly the property described in Schedule-II of the plaint is the agricultural land which the plaintiffs claim to have purchased from Lagni Devi out of the entire agricultural land of the share of Sitaram Sah as described in Schedule-IV of the plaint. It appears from the reliefs sought in the plaint that the plaintiffs have sought the relief for declaration of their title over Schedule-I land only as their purchased land. The relief for declaration of title with regard to Schedule-II land had been deleted by the plaintiffs through amendment in the plaint. In the alternative, the plaintiffs have sought the relief for partition of their shares in Schedule-III and IV of the plaint by metes and bounds to the extent of 2½ dhur in Schedule-III property and 3 katha 10 dhurki in Schedule-IV property. Although the plaintiffs have claimed to have purchased the land and house described in Schedule-I and II by one sale deed but in view of the facts and circumstances of the case, it would be proper to deal with the claims with regard to Schedule-I and II properties separately. 15. The property described in Schedule-I is homestead land and house being portion of Schedule-III property, in western portion to the extent of 2½ dhur. 15. The property described in Schedule-I is homestead land and house being portion of Schedule-III property, in western portion to the extent of 2½ dhur. It is the case of the plaintiffs that Lagni Devi who is the daughter of Sitaram Sah was a deserted woman living in her Naiher and in partition by way of family arrangement, the said 2½ dhur of homestead land in the western portion was allotted to her which she later on transferred to the plaintiffs. The defendants have denied the fact that Lagni Devi was a deserted woman living separately from her husband in her “Naiher” and have asserted that 2½ dhur of homestead land as described in Schedule-I was never given to Lagni Devi in partition. 16. The finding of the learned court below that Sitaram Sah died after 01.03.58 has not been assailed by the parties to the appeal. As such the entitlement of Lagni Devi to a share in the property of Sitaram Sah as one of his heirs has not been disputed. However, the demonstrable facet of the discord between the parties is the application of the statutory restrictions under Section 23 of the Hindu Succession Act, 1956 on the rights of a female heir in the dwelling house of a joint family. Section 23 of Hindu Succession Act, 1956, before its omission by the amendment in the year, 2005 provided as follows:- “…Section 23. Special provision respecting dwelling houses-where a Hindu intestate has left surviving him or her both male and female heir specified in Class I of the Schedule-and his or her properties include 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; but the female heirs shall be entitled to a right of residence therein; Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow…” 17. This Section 23 of the Hindu Succession Act has been omitted by the Hindu Succession (Amendment) Act, 2005. This Section 23 of the Hindu Succession Act has been omitted by the Hindu Succession (Amendment) Act, 2005. The contention on behalf of the appellants is that the omission of Section 23 of the Hindu Succession Act, 1956, by amendment in the year 2005, must be taken into notice by this Court in appeal and the right of the parties now be determined accordingly. On the other hand the contesting respondents have taken the stand that the rights of the parties must be decided in accordance with law as existing on the date of the filing of the suit and the subsequent change should not be taken into notice to alter the accrued or vested rights. 18. A similar question arose before the Apex Court in the case of Prema Vs. Nange Gaura, AIR 2011 SC 2077 where the question of applicability of Section 6A to 6C inserted by Hindu Succession (Karnatka) Act, 1994, in a final decree proceeding arising out of partition suit of the year 1989, was raised. It is apposite to note that the Hindu Succession (Karnatka) Act, 1994 made amendment in the Hindu Succession Act, 1956 in its application to the State of Karnatka, granting the daughter of a coparcener the status of a coparcener in a joint Hindu family by birth having the same rights in the coparcenery property as that of a son. Later on the amendment on similar lines has been made in Hindu Succession Act, 1956 by parliament through Hindu Succession (Amendment) Act, 2005. Their Lordships have laid down the principles as follows:- “…as the partition suit is required to be decided in stages, the same can be regarded as wholly and completely decided only when the final decree is passed. If in the interregnum any party of the partition suit dies, than his/her share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. Likewise, if law governing the parties is amended before conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the Court to take cognizance of the amendment and give effect to the same. Likewise, if law governing the parties is amended before conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the Court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the court seized with the final decree proceedings is not only entitled but is duty bound to take notice of such change and pass appropriate order. In this case, the Act was amended by State Legislature and Sections 6 A to 6 C were inserted for achieving a goal of equality set out in the Preamble of the Constitution. In terms of Section 2 of the Karnatka Act No.23 of 1994, Section 6 came into force on 30.07.1994 i.e. the date on which the amendment was published. As on that date the final decree proceedings were pending, therefore, the appellant had every right to seek enlargement of her share by pointing out that discrimination practiced against the unmarried daughter had been removed by the legislative intervention and there is no reason why the Court should hesitate in giving effect to an amendment made by the State Legislature in exercise of the power vested in it under Article 15(3) of the Constitution …” 19. In view of the aforesaid principles, the omission of Section 23 of the Hindu Succession Act, 1956 by Hindu Succession (Amendment) Act, 2005 during the pendency of this appeal can be taken into notice in this appeal. The contention on behalf of the contesting respondents that the accrued or vested right in the defendant-respondents on the date of the suit cannot be taken away is not sustainable for the simple reason that by the provision of Section 23, as it existed before the amendment, the entitlement of a female heir to a share in the joint family dwelling house by inheritance, had not been taken away but only her right to seek partition in the said property had been put in abeyance till the male heirs decided to effect a partition. Therefore no right had accrued or come to vest in the male heirs against the female heirs whose right in the dwelling house of the family to claim partition was only put under the embargo. 20. Therefore no right had accrued or come to vest in the male heirs against the female heirs whose right in the dwelling house of the family to claim partition was only put under the embargo. 20. Indisputably Sitaram Sah died leaving behind his son Bhagwati Sah who was his only Class I male heir. The entitlement of a share of Lagni Devi in the property after the death of Sitaram Sah in the year 1958 or thereafter has not been denied. Thus obviously when there was no other Class I male heir except Bhagwati Sah with regard to the property described in Schedule-I, the restriction as provided in Section 23 upon the right of Lagni Devi to seek a partition could have continued till the lifetime of Bhagwati Sah. Admittedly on the date of filing of the suit, Bhagwati Sah was not alive and his sons and widow have been therefore impleaded as defendant nos. 1 to 4 in the suit. In this view of the matter also the right of Lagni Devi or for that matter her transferee to seek partition of the property in Schedule-III cannot be denied. The learned court below has not taken into consideration this vital fact and has wrongly come to the conclusion that in view of the restriction envisaged under Section 23 of the Hindu Succession Act the partition as prayed for by the plaintiffs cannot be allowed. The learned court below has also wrongly held that Lagni Devi had no right to transfer her share in the said property. It is the case of the plaintiffs that Lagni Devi transferred 2½ dhur of homestead land alongwith house from west by the sale deed in their favour with further assertion that the said 2½ dhur was allotted to Lagni Devi in partition. However, on behalf of the appellants no cogent evidence on record could be pointed out to sustain their case of partition and allotment of said homestead land and house to their vendor Lagni Devi. In this view of the matter it cannot be held that Lagni Devi was entitled to the specific homestead land and house as mentioned in Schedule-I of the plaint and transfer the same to the plaintiffs. As such, the plaintiffs cannot be held entitled to the relief for declaration of title with regard to the said property. In this view of the matter it cannot be held that Lagni Devi was entitled to the specific homestead land and house as mentioned in Schedule-I of the plaint and transfer the same to the plaintiffs. As such, the plaintiffs cannot be held entitled to the relief for declaration of title with regard to the said property. The plaintiffs however, have prayed for the alternative relief for partition of their share in the entire 8¾ dhur homestead land and house as mentioned in Schedule-III of the plaint. Although the plaintiff has claimed that they are entitled to 2½ dhur on partition in Schedule-III land but the said relief can be granted only after the determination of the share of Lagni Devi in Schedule-III property as an heir of Sitaram Sah and the sale deed dated 18.01.1978 executed by her in favour of the plaintiffs would be valid to the extent of her share only. 21. As the claim of the plaintiffs with regard to Schedule-III property has been denied by the learned court below only in view of the embargo created by Section 23 of the Hindu Succession Act, 1956 and the share of Lagni Devi in the said property as an heir of Sitaram Sah has not been determined, the matter is remitted back to the learned court below for determining the share of Lagni Devi in Schedule-III property, and thereafter to grant the relief for partition of that share in accordance with law. 22. The property described in Schedule-IV is the agricultural land measuring altogether 9 katha 1½ dhur allotted to the share of Sitaram Sah after partition. Admittedly Sitaram Sah transferred the said property to his wife by executing a deed (Ext. E) which according to the contesting defendants was a conditional sale deed with condition of return of the consideration money within two years, failing which the sale was to become absolute. The plaintiffs have asserted that it was in fact a deed of mortgage with conditional sale but have further characterized it as farzi and pretentious document. The learned court below after taking into consideration the evidence as well as the recitals in the said deed dated 09.04.54 has come to the conclusion that it was not a deed of mortgage with conditional sale but a conditional sale deed with right of repurchase to be exercised within two years. 23. The learned court below after taking into consideration the evidence as well as the recitals in the said deed dated 09.04.54 has come to the conclusion that it was not a deed of mortgage with conditional sale but a conditional sale deed with right of repurchase to be exercised within two years. 23. The statement made by the plaintiff in paragraph 15 of the plaint is follows:- ^^;g fd lhrkjke lkg us ,d uqek;lh vkSj QthZ olhdk o;e;knh tks nj vly esa tjislxh olhdk jgk tkghjk tjleu eksoyhx 1000@& #- vius L=h egs”ojh nsoh ds uke ls rkjh[k 9-4-54 dks rgjhj dj fn;k---** (emphasis supplied) 24. From paragraph 9 of the impugned judgment also as it transpires that the stand on behalf of the plaintiff was that the deed (Ext.E) was a mortgage deed. On behalf of the contesting defendants the sale deed executed by Maheshwari Devi on 11.06.71 in favour of the defendant no.4 Nageshwari Devi has been brought on record as Ext.A. Further evidence as Ext. B series are the receipts granted by Chapra Municipality in the name of Maheshwari Devi and Nageshwari Devi after payment of the taxes by them. Ext.D is the rent receipt of the year 1956 granted by the State of Bihar in the name of Maheshwari Devi. The possession and dealing of the property mentioned in Schedule-IV of the plaint by Maheshwari Devi and thereafter by the purchaser Nageshwari Devi has also been supported by the oral evidence. There is no evidence on behalf of the plaintiffs to establish that Sitaram Sah or any of his heirs ever raised objection to the possession of Maheshwari Devi and Nageshwari Devi over the said property or to the mutation of their names in the revenue records. No evidence has also been adduced to show that the transaction by the registered sale deed Ext.A or the sale deed Ext.E has ever been challenged by Sitaram Sah or by any person interested in the same. Even in the present suit, no relief has been sought by the plaintiffs with regard to these deeds i.e. Ext.E and Ext.A. Thus even after accepting the case of the plaintiff that the transaction, subject matter of the deed Ext.E, was a mortgage with conditional sale, the plaintiffs have failed to establish that the said mortgage has ever been redeemed. Even in the present suit, no relief has been sought by the plaintiffs with regard to these deeds i.e. Ext.E and Ext.A. Thus even after accepting the case of the plaintiff that the transaction, subject matter of the deed Ext.E, was a mortgage with conditional sale, the plaintiffs have failed to establish that the said mortgage has ever been redeemed. Significantly no prayer for redemption of the said mortgage has been made in this suit also. As such it is plain and patent that the plaintiffs have failed to establish that the deed (Ext.E) was only a pretentious and farzi document and had never been acted upon and further if according to their own case, it was a mortgage with conditional sale, its redemption has not been established or even prayed for. The plaintiffs are therefore not entitled to the relief for partition with regard to the property in Schedule-IV of the plaint. 25. On the basis of the aforesaid premised reasons and discussions, it is held that the plaintiff is only entitled to a share in the property mentioned in Schedule-III of the plaint to the extent of the share to which their vendor Lagni Devi is entitled. The sale deed executed by Lagni Devi in favour of the plaintiff with regard to the property mentioned in Schedule-III of the plaint is held to be valid only to the extent of her share in the said property. It is further held that the plaintiffs are not entitled to any share as claimed in the property as mentioned in Schedule-IV of the plaint because during his lifetime, Sitaram Sah had transferred the same in favour of Maheshwari Devi by the conditional sale deed (Ext.E) and the said property was not available after his death for his heirs including Lagni Devi, the vendor of the plaintiff, to inherit. The sale deed (Ext.1) executed by Lagni Devi in favour of the plaintiff no.2 for the Schedule-II properties is held to be void. 26. In the result this appeal succeeds in part as indicated above to the extent of the share of Lagni Devi in the homestead land and house as mentioned in Schedule-III of the plaint and the sale deed (Ext.1) is held to be valid only to that extent. 26. In the result this appeal succeeds in part as indicated above to the extent of the share of Lagni Devi in the homestead land and house as mentioned in Schedule-III of the plaint and the sale deed (Ext.1) is held to be valid only to that extent. The plaintiffs, are therefore, held entitled to a decree for partition only to the extent of the share of Lagni Devi in Schedule-III property. The impugned judgment and decree is set aside to that extent and the matter is remitted back to the learned court below for determination of the share of Lagni Devi in Schedule-III property, and accordingly, pass a decree for partition. In the facts and circumstances, there shall be no order as to costs.