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2016 DIGILAW 2578 (ALL)

Raja Ram v. Km. Prema Devi

2016-07-26

RITU RAJ AWASTHI

body2016
JUDGMENT Ritu Raj Awasthi,J. Heard learned counsel for the appellant as well as Mr.I.D. Shukla, learned counsel appearing for the respondents. 2. This second appeal has been filed against the judgment and order dated 2.3.2016 passed in Civil Appeal No. 151 of 2015; Raja Ram Vs. Km. Prema Devi and others as well as the judgment and decree dated 19.8.2015 passed in Original Suit No. 46 of 1993. 3. As per the given facts of the case, the plaintiff/respondent had filed a suit for partition dated 28.1.1993 of the old House No.998, new House No. 3/19/92, Mohalla Gaura Patti Niyawan Chauraha, Pargana Haveli Avadh, Tehsil Sadar, District Faizabad, before the trial court. 4. The appellant being the defendant had filed the written statements. The learned trial court after considering the evidence on record had dismissed the suit for partition filed by the plaintiff/respondent on 18.8.1999 against which the plaintiff/respondent had filed the first appeal which was also dismissed on 24.1.2002. The plaintiff/respondent thereafter had filed the Second Appeal No. 49 of 2002; Km. Prema Devi and others Vs. Raja Ram. The High Court vide judgment and order dated 8.10.2014 while setting aside the judgments of both the Courts below has remanded the matter back to the trial court for fresh consideration. The learned trial court thereafter had allowed the suit filed by the respondent i.e. Original Suit No. 46/1993 vide judgment and order dated 19.8.2015. The appellant feeling aggrieved against the said judgement had filed the first appeal which has been dismissed vide impugned judgment and order dated 2.3.2016. 5. Learned counsel for the appellant submits that the amendment omitting Section 23 of Hindu Succession Act, 2005, has been brought by Amendment Act 2005. The said amendment was prospective in nature and the benefit of omission of Section 23 of Hindu Succession Act, 2005 could not have been extended in favour of respondent who had filed the suit for partition in the year 1993. It is submitted that there was specific bar under Section 23 of Hindu Succession Act, 2005, as such the respondents could not claim partition of the family dwelling house as there was male heir i.e. the appellant. The said bar was omitted on the deletion of Section 23 by the Amendment Act, 2005. 6. It is submitted that there was specific bar under Section 23 of Hindu Succession Act, 2005, as such the respondents could not claim partition of the family dwelling house as there was male heir i.e. the appellant. The said bar was omitted on the deletion of Section 23 by the Amendment Act, 2005. 6. It is further submitted that the benefit of deletion of Section 23 of Hindu Succession Act, would be available after coming into force of Amendment Act, 2005 and cannot be extended prior to the said amendment. 7. Learned counsel for the respondents, on the other hand submits that this issue has been set at rest vide judgment and order dated 8.10.2014 passed in the Second Appeal No. 49 of 2002, which was between the same parties. 8. I have considered the submissions made by the parties' counsel and gone through the records. 9. The question as to whether the provisions of Hindu Succession (Amendment) Act, 2005 can be given effect to in the pending proceedings was the issue before the Court in Second Appeal No.49 of 2002. The said issue has been decided holding that the respondents are entitled to get the benefit of Hindu Succession (Amendment) Act, 2005 as the second appeal filed by them was pending when the Hindu Succession (Amendment) Act, 2005, came into force. Since the proceeding in the second appeal is a continuation of the suit, as such the respondents are entitled to get the benefit of the said amendment. 10. The Court allowing the second appeal has set aside the earlier judgments and orders passed by the trial court as well as the first appellate court and has remanded the matter back to the trial court for the decision afresh in the light of the directions and observations made in the said judgment. The relevant portion of the judgement dated 8.10.2014 passed in the Second Appeal No. 49 of 2002, on reproduction reads as under: "It is not disputed between the parties that by the Hindu Succession (Amendment) Act, 2005, the bar created by Section 23 of the Hindu Succession Act has been removed and now a female heir can also seek partition irrespective of the fact as to whether a male heir claims partition or not ? Although the bar of Section 23 was very much there when the appellants filed the suit for partition and thereafter filed the first appeal but during the pendency of second appeal, which was filed in the year 2002, the Amending Act No.39 of 2003 came into effect and Section 23 was omitted. Thus, in view of above law laid down by the Hon'ble Apex Court as well as Hon'ble Bombay and Kerala High Courts, I am of the view that the benefit of the Amending Act should also be given to the appellants. The proceedings of partition are still pending in the form of second appeal and it is a settled law that second appeal is also considered as continuation of the suit and as such in view of the Amending Act, 2005 the matter deserves to be remitted back to the trial court for decision afresh in the light of Hindu Succession (Amendment) Act, 2005 and the observations made hereinabove in this judgment. In the result, the appeal is allowed and the impugned judgment and order dated 18.08.1999 passed by the Civil Judge (Junior Division) Sadar, Faizabad and the judgment and order dated 24.01.2002 passed by the Second Additional District Judge in Regular Civil Appeal No.161 of 1999 are hereby set aside. The matter is remitted back to the trial court for a decision afresh in the light of directions and observations made in this judgment. Office is directed to send back the record of lower court, if received. It is further provided that since the matter relates to the year 1993, the trial court is expected to expedite the final disposal and decide the case at the earliest. No order as to cost". 11. I am of the considered view that the question involved in the present appeal has been set at rest by this Court vide judgment and order dated 8.10.2014 passed in Second Appeal No.49 of 2002 as has been noted hereinabove. 12. In view of the above, I am of the considered view that no substantial question of law is involved in the present appeal. 13. The second appeal is accordingly dismissed.