JUDGMENT : D.DASH, J. This appeal has been filed against the judgment and decree passed by the learned District Judge, Dhenkanal in Title Appeal No. 27 of 1996 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Dhenkanal in Title Suit No. 77 of 1995. The appellant as the plaintiff had filed the suit for partition of the land described in Schedule -A (comprising of lot 1 and lot 2) as also the Schedule -B of the plaint. The trial court decreed the suit preliminarily in part for partition allotting 1/3rd share to the plaintiff over Schedule -A lot - 1 property in favour of the plaintiff and 1/3rd share each to respondent no. 2 and 3 (defendant no. 1 and 2), while declining the partition the properties described in lot - 2 of Schedule -A and Schedule -B holding the plaintiffs-appellant to be having no right to claim partition of land under lot 2 of Schedule -A and that the Schedule -B land as not liable to be partitioned amongst the parties. The unsuccessful plaintiff (appellant) being aggrieved by such refusal of the relief as prayed for in respect of the Schedule -A, lot -2 land as also Schedule –B having carried an appeal under section 96 of the Code of Civil Procedure has failed to get the trial court’s decree enlarged to any extent. So she has now approached this Court with the second appeal under section 100 of the Code of Civil Procedure. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The case of the plaintiff is that the properties described in Schedule -A under two lots i.e., lot - 1 which are the landed properties of village Kankadahada and lot - 2 which is homestead land in the town of Dhenkanal belong to her father and the land described under schedule B as the land belonging to the State adjoining the homestead land described in lot 2 which has remained in possession since the time of her father Kampal Parida. Accordingly, it is stated that Kampal had acquired right, title and interest over said schedule B land by adverse possession by virtue of his open, peaceful and continuous possession for much more than the period prescribed. Accordingly, it is stated that Kampal had acquired right, title and interest over said schedule B land by adverse possession by virtue of his open, peaceful and continuous possession for much more than the period prescribed. She filed the suit claiming 1/3rd share over the above properties. It is stated that defendant no. 1 had earlier filed a suit for partition of the properties in three equal halves amongst himself, his brother-defendant no.2 and the sister i.e., the present plaintiff. The suit having been dismissed, no further steps are said to have been taken for its restoration. The plaintiff claims to have made a request for partition of the above properties and allotment of land as she is entitled in law, but as the defendants did not listen to the same, the present suit has been filed. 4. Defendant no. 2 has only come forward to the contest the suit. Challenging the maintainability of the suit, he states that since all the properties belonging to their father have not been brought to the hotchpot, the suit is not maintainable as it is one for partition. It is stated that in course of enjoyment of the joint family properties situated in other villages which formed the joint family nucleus and during such management, these properties described in lot-1 of the Schedule –A was purchased in the name of their father. So, it is asserted to be the ancestral property. As regards the property described in lot – 2 of the plaint is stated to have been purchased by the Kampal out of his own income. It is also stated that Schedule –B land has been in encroachment during the lifetime of Kampal and it has been kept under fencing having been amalgamated with the recorded land. It is further informed by the defendant no. 2 as regards pendency of the encroachment case and that land has not yet been settled either in the name of Kampal or anybody else claiming through Kampal. This defendants no. 2 now claims to be in possession of the said land. The land is thus said to be unsettled property and the plaintiffs right to claim partition over the same is accordingly resisted. It is further stated that the plaintiff is not entitled to any share over the Schedule –A lot -2 land which is the undivided dwelling house of the family. The land is thus said to be unsettled property and the plaintiffs right to claim partition over the same is accordingly resisted. It is further stated that the plaintiff is not entitled to any share over the Schedule –A lot -2 land which is the undivided dwelling house of the family. The quantum of share which the plaintiff has claimed as 1/3rd share is also disputed, in further pleading that she is entitled to get 1/9th share only over the Schedule –A lot -1 land. 5. Faced with the above rival pleadings, the trial court framed in as much as five issues. First taking up issue no. 1, the maintainability of the suit, the answer has been rendered that it is well maintainable as the plaintiff is not at all making any claim of her share in respect of those properties in respect of other mouzas except those as stated in Schedule -A and B. 6. Next going to answer issue no. 2 and 3 together as regards the claim of the plaintiff for partition of the Schedule -A lot -1 properties as also lot-2 in view of the challenge that Schedule -A lot -1 properties is not the self-acquired property of Kampal, whereas Schedule -A lot -2 is not liable to be partitioned, on examination of evidence, the ultimate findings have been recorded that the defendant no. 1 has not been able to prove by leading acceptable evidence that Schedule -A land under both the lots had been purchased in the name of Kampal, their father with the aid of the income of the joint family and thus, said properties have been held to be the self-acquired property of Kampal. Then going to the partibility of land Schedule -A lot-2, it has been found to be the undivided dwelling house occupied by the members of the family. So, in view of the bar under section 23 of the Hindu Succession Act, the plaintiff being the daughter of Kampal and as such a Class - 1 female heir as per the schedule given under the Act along with defendant no. 1 and 2, the prayer on that score has been refused. 7. Answering issue no. So, in view of the bar under section 23 of the Hindu Succession Act, the plaintiff being the daughter of Kampal and as such a Class - 1 female heir as per the schedule given under the Act along with defendant no. 1 and 2, the prayer on that score has been refused. 7. Answering issue no. 4 as regards the partibility of Schedule –B land, the land having been found to be standing in the name of the Government and possession of the parties having been found to be illegal, the trial court has refused to subscribe its hand to the prayer of the plaintiff for partition of said land and allotment of share over the same. Thus, the suit having been preliminarily decreed entitling the plaintiff with 1/3rd share only in respect of the land described in Schedule -A, lot -1, she filed the appeal under section 96 of the Code of Civil Procedure. 8. The lower appellate court on analysis of evidence and upon going through the discussion as made by the trial court has affirmed all the findings and thus has confirmed the result rendered in the suit. Therefore, now the present move is before this Court by filing the second appeal under section 100 of the Code. 9. The appeal has been admitted on the following substantial question of law:- Whether in the given facts and circumstances and the material evidence on record, the provision enumerated under section 23 of the Hindu Succession Act, 1956 is attracted to the instant case? The above substantial question of law only concerns with the property described in schedule -A, lot -2, which the courts below have declined to partition the same holding it to be the undivided dwelling house occupied by the members of the family by applying the provision of section 23 of the Hindu Succession Act. The lower appellate court has accepted the same in denying the plaintiff to be granted with the relief for partition of the suit property and allotment of 1/3rd share to her. 10. I have heard the learned counsel for the parties at length who have contended in the light of providing support to the respective case of the parties. In short, Mr.J.K.Ghosh, leaned counsel for the appellant when urges for grant of decree for partition also in respect of the property as at Schedule-A, lot 2; Mr. 10. I have heard the learned counsel for the parties at length who have contended in the light of providing support to the respective case of the parties. In short, Mr.J.K.Ghosh, leaned counsel for the appellant when urges for grant of decree for partition also in respect of the property as at Schedule-A, lot 2; Mr. S.P.Mshra, learned senior counsel contends that in this suit that question cannot arise as the provision of section 23 of the Act has continued to remain the statute although even when this appeal was admitted and even thereafter. 11. During the passage of time, there has been a very important development in the field of law covering the subject impacting the above substantial question of law which touches the root. The suit had been instituted in the year 1995. The first appeal being filed in the year 1996, has been disposed of by judgment dated 9.2.2004 followed by decree dated 19.2.2004. The present second appeal has been filed on 6.5.2004 during the period when the provision of section 23 of the Hindu Succession Act (for short as ‘the Act’) was very much there in the statute and it was so even on the date when the second appeal has been admitted formulating the substantial question of law i.e. on 13.7.2004. However, by reason of Hindu Succession (Amendment) Act 2005 (for short as “the 2005 Act’) in so far as therein, section 23 of the Act has been omitted. The date of commencement of the 2005 Act is 9th September, 2005 which has became applicable as expressly provided therein on and from the said date. So the question now falls for consideration before this Court is the impact of amendment in the Act in view of the coming into force of the 2005 Act in so far as the omission of the provision of section 23 in the Act is concerned. The omission has been without any other provision either having any sort of nexus with the earlier existing provision as contained in section 23 of the Act or corresponding to it as also not remaining with any changes being introduced. The omission has been without any other provision either having any sort of nexus with the earlier existing provision as contained in section 23 of the Act or corresponding to it as also not remaining with any changes being introduced. The provision as its stood was that when a Hindu intestate leaves by surviving male and female heirs as indicated in Class-1 of the Schedule of the Act and the property includes a dwelling house wholly occupied by the members of the family, the right of female heirs to seek partition of the same would not arise until the male heirs choose to divide their respective share therein and till then, the female heirs as classified under the proviso will only be having the right of residence. The avowed object and importance of the provision is clearly discernible. The Act brought about the revolutionary changes in the old Hindu Law. It was enacted to amend and codify the law relating to intestate succession amongst Hindus. By reason of the Act, all female heirs were conferred with equal right in the matter of succession and inheritance with that of male heirs as provided in section 8 of the Act read with the schedule contained therein. By reason of section 14 of the Act, a woman who had limited interest in the property but was possessed of the same was to become absolute owner. Section 6 of the Act, however made an exception to the aforementioned rule by providing the manner in which the interest of the coparcenery property shall devolve upon the heirs stating that the rule of survivorship would operate in respect thereof. The right, title and interest of an heir whether male or female thus are governed by the provision of the Act. Section 23 of the Act however carves out an exception in regard to obtaining a decree for partition in respect of dwelling house wholly occupied by members of the family till happening of the contingency as provided in the said section at the behest of the female heirs. Although it expressly recognized the female heirs, their right to reside therein and in respect of daughters if she comes under the proviso. Although it expressly recognized the female heirs, their right to reside therein and in respect of daughters if she comes under the proviso. This is an exception in order to obtain a decree for possession inter alia in a case where dwelling house was possessed by male heirs till they chose to partition or till the male heir/heirs go to use and occupy the dwelling house in a manner running counter to the objective behind enactment of said provision such as by letting it out voluntarily not by compulsion or otherwise which frustrate the purpose of preserving the sanctity of the family dwelling house, respecting tradition of preserving family dwelling house to effectuate family unity and prevent its fragmentation or disintegration by dividing it by metes and bounds. Nonetheless the very right of the female heirs in the property of the father who died intestate equal to her brother over the dwelling house stood recognized. But the right of the female heir is merely restricted to the above extent so far as its exercise is concerned and the time ripe for it although, it recognizes the right of residence in respect of the female heirs and daughters as female heirs who fall within the proviso thereof. Such a right of residence is not dependent upon the date on which the suit has been instituted but can also be subsequently enforced by a female, coming within the proviso appended to section 23 of the Act. So far as the amendment to section 6 of the Act which has been brought by the 2005 Act, the divergent views of different High Courts by now have been set at rest by the Hon’ble Apex Court in case of Prakash and others vs. Phulabati and others: AIR 2016 SC 769 that the rights under the amendment are available to the living daughters of living coparcener as on 9th September, 2005 irrespective of when such daughters are born and that the disposition or alienation including partitions which have taken place before the appointed date i.e. 20th December, 2004 as per law applicable prior to the said date will remain unaffected and any transaction or partition effected thereafter will be governed by the Explanation. 12. The Law Commission in its 174th Report recommended for omission of Section 23 of the Act in view of amendment in Section-6 of the Act. 12. The Law Commission in its 174th Report recommended for omission of Section 23 of the Act in view of amendment in Section-6 of the Act. In the said report the relevant Clause 3.2.9 reads as under:- “3.2.9 It is further felt that once a daughter is made a coparcener on the same footing as a son then her right as a coparcener should be real in spirit and content. In that event section 23 of the HAS should be deleted. Section 23 provides that on the death of a Hindu intestate, in case of a dwelling house wholly occupied by members of the joint family, a female heir is not entitled to demand partition unless the male heirs choose to do so; it further curtails the right of residence of a daughter unless she is unmarried or has been deserted by or has separated from her husband or is a widow. Section 23 of the Act needs to be deleted altogether and there is great support from various sections of society while replying to the questionnaire.” 13. The statement of Objects and Reasons of the 2005 Act reads as under: “3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara Coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the same section so as to remove the disability on female heirs contained in that section.” It is proposed to remove the discrimination as contained in section.6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. 14. The intention of legislature become thus is evident that by the said amendment the goal set is for removal of the gender discrimination not only as contained in section 6 of the Act but also conferring an absolute right in a female heirs to ask for partition and thus participation in a dwelling house wholly occupied by the members of a joint family as provided for in terms of section 23 of the Act. Thus this omission is in the direction of removal of the disability of the female heir as contained in that section. At this juncture, it is apposite to straightway refer to the decision of the Hon’ble Apex Court in case of G.Sekar vs. Geetha and others; AIR 2009 SC 2649 . It is profitable to quote the relevant paras: 22. Section 23 of the Act has been omitted so as to remove the disability on female heirs contained in that Section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparacenary property is concerned has been sought to be removed, we fail to understand as to how such a disability could be allowed to be retained in the statute book in respect of the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto. 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 dependant on the right of a co-sharer in the joint property. Concededly a preliminary decree could be passed declaring each co-sharer to be entitled to 1/5th share therein in terms of the provisions contained in Section 8 of the Act. 1/5th 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. We may notice Sub-section (5) of the 2005 Act, which reads as under: "(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December,2004 Explanation-For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court." Thus, where a partition has not taken place, the said provision shall apply. Reliance has also been placed by Mr. Viswanathan on Eramma v. Verrupanna & ors. [ (1966) 2 SCR 626 ], wherein it was held: "It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of s. 8 must be construed in the context of s. 6 of the Act. We accordingly hold that the provisions of s. 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i.e., where succession opened before the Act, s. 8 of the Act will have no application." In the factual matrix obtaining in Eramma (supra), Section 8 was construed in the light of Section 6of the Act, as one of the questions raised therein was as to whether the property was a coparcenery property or not. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. 23. The operation of the said statute is no doubt prospective in nature. The High Court might have committed a mistake in opining that the operation of Section 3 of the 2005 Act is retrospective in character, but, for the reasons aforementioned, it does not make any difference. What should have been held was that although it is not retrospective in nature, its application is prospective. 24. It is now a well settled principle of law that the question as to whether a statute having prospective operation will affect the pending proceeding would depend upon the nature as also 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 statute will be a question which must be posed and answered. 25. It is trite that although omission of a provision operates as an amendment to the statute but 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. 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. Reliance has been placed by Mr. Viswanathan on The State of Orissa v. Bhupendra Kumar Bose & ors. [ AIR 1962 SC 945 ] wherein the effect of a lapsing of the ordinance vis-`-vis non applicability ofSection 6 of the General Clauses Act to such a situation was examined by this Court to hold that even in the case of right created by a temporary statute if the right is of an enduring character and has vested in the person that right cannot be taken away because the statute by which it was created has expired. We are not faced with such a situation. We may notice that a Constitution Bench of this Court in Kolhapur Canesugar Works Ltd. & Anr. v. Union of India & Ors. [ (2000) 2 SCC 536 ] considered the effect of omission of the Rules in a subordinate legislation, holding: "34. It is not correct to say that in considering the question of maintainability of pending proceedings initiated under a particular provision of the rule after the said provision was omitted the Court is not to look for a provision in the newly added rule for continuing the pending proceedings. It is also not correct to say that the test is whether there is any provision in the rules to the effect that pending proceedings will lapse on omission of the rule under which the notice was issued. It is our considered view that in such a case the Court is to look to the provisions in the rule which has been introduced after omission of the previous rule to determine whether a pending proceeding will continue or lapse. If there is a provision therein that pending proceeding shall continue and be disposed of under the old rule as if the rule 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 materia provision in the statute under which the rule has been framed in that case also the pending proceeding will not be affected by omission of the rule. If the case is covered by Section 6 of the General Clauses Act or there is a pari materia provision in the statute under which the rule has been framed in that case also the pending proceeding will not be affected by omission of the rule. In the absence of any such provision in the statute or in the rule the pending proceedings would lapse on the rule under which the notice was issued or proceeding was initiated being deleted/omitted. It is relevant to note here that in the present case the question of divesting the Revenue of a vested right does not arise since no order directing refund of the amount had been passed on the date when Rule 10 was omitted." The observations made therein instead of advancing the cause of the appellant goes against his contentions. We are not oblivious of the fact that correctness of the said decision was doubted in S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India & Anr. [ (2006) 2 SCC 740 ] wherein omission of Section 16(1)(d) of the Employees' Provident Fund & Miscellaneous Provisions Act, 1952, which gave infancy protection, was held not to take away the right of parties existing on that date, opining that the right to infancy protection accrued prior to that date held continue to survive for the balance infancy period. The said decision has no application in the fact of the present case. We may, however, notice that in Brihan Maharashtra Sugar Syndicate Ltd. v. Janardan Ramchandra Kulkarni & ors. [ AIR 1960 SC 794 ], while dealing with the scope of Section 6 of the General Clauses Act, this Court held: "5. Now it has been held by this Court in State of Punjab v. Mohar Singh ( AIR 1955 SC 84 ), that S. 6 applies even where the repealing Act contains fresh legislation on the same subject but in such a case one would have to look to the provisions of the new Act for the purposes of determining whether they indicate a different intention. The Act of 1956 not only repeals the Act of 1913 but contains other fresh legislation on the matters enacted by the Act of 1913. The Act of 1956 not only repeals the Act of 1913 but contains other fresh legislation on the matters enacted by the Act of 1913. It was further observed in State of Punjab v. Mohar Singh ( AIR 1955 SC 84 ), that in trying to ascertain whether there is a contrary intention in the new legislation, "the line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. It was furthermore observed: "9. We are unable to accept these contentions. Section 10 of the Act of 1956 deals only with the jurisdiction of courts. It shows that the District Courts can no longer be empowered to deal with applications under the Act of 1956 in respect of matters contemplated by s. 153-C of the Act of 1913. This does not indicate that the rights created by s. 153-C of the Act of 1913 were intended to be destroyed. As we have earlier pointed out from State of Punjab v. Mohar Singh ( AIR 1955 SC 84 ), the contrary intention in the repealing Act must show that the rights under the old Act were intended to be destroyed in order to prevent the application of s. 6 of the General Clauses Act. But it is said that s. 24 of the General Clauses Act puts an end to the notification giving power to the District Judge, Poona to hear the application under s. 153-C of the Act of 1913 as that notification is inconsistent with s. 10 o f the Act of 1956 and the District Judge cannot, therefore, continue to deal with the application. Section 24 does not however purport to put an end to any notification. It is not intended to terminate any notification; all it does is to continue a notification in force in the stated circumstances after the Act under which it was issued, is repealed. Section 24 th erefore does not cancel the notification empowering the District Judge of Poona to exercise jurisdiction under the Act of 1913. It is not intended to terminate any notification; all it does is to continue a notification in force in the stated circumstances after the Act under which it was issued, is repealed. Section 24 th erefore does not cancel the notification empowering the District Judge of Poona to exercise jurisdiction under the Act of 1913. It seems to us that since under s. 6 of the General Clauses Act the proceeding in respect of the application under s. 153-C of the Act of 1913 may be continued after the repeal of that Act, it follows that the District Judge of Poona continues to have jurisdiction to entertain it. If it were not so, then s. 6 would become infructuous." Yet again in Raja Narayanlal Bansilal v. Maneck Phiroz Mistry [ AIR 1961 SC 29 ] this Court, while interpreting the provisions ofSection 645 of the Companies Act, opined: "The effect of this section is clear. If an inspector has been appointed under the relevant section of the old Act, on repeal of the old Act and on coming into force of the new Act, his appointment shall have effect as if it was made under or in pursuance of the new Act. Indeed it is common ground that if s. 645 had stood alone and had not been followed bys. 646 t here would have been no difficulty in holding that the inspector appointed under the old Act could exercise his powers and authority under the relevant provisions of the new Act, and the impugned notices would then be perfectly valid. Incidentally we may refer to the provisions of s. 652 in this connection. Under this section any person appointed to that office under or by virtue of any previous company law shall be deemed to have been appointed to that office under this Act." In State of Punjab & Ors. v. Bhajan Kaur & Ors. [ 2008 (8) SCALE 475 ], while dealing with the question as to whether the quantum of no fault liability enhanced from Rs.15,000/-to Rs.50,000/-could be awarded, it was held: "13. No reason has been assigned as to why the 1988 Act should be held to be retrospective in character. The rights and liabilities of the parties are determined when cause of action for filing the claim petition arises. As indicated hereinbefore, the liability under the Act is a statutory liability. No reason has been assigned as to why the 1988 Act should be held to be retrospective in character. The rights and liabilities of the parties are determined when cause of action for filing the claim petition arises. As indicated hereinbefore, the liability under the Act is a statutory liability. The liability could, thus, be made retrospective only by reason of a statute or statutory rules. It was required to be so stated expressly by the Parliament. Applying the principles of interpretation of statute, the 1988 Act cannot be given retrospective effect, more particularly, when it came into force on or about 1.07.1989. 14. Reference to Section 6 of the General Clauses Act, in our opinion, is misplaced.Section 217 of the 1988 Act contains the repeal and saving clause. Section 140 of the 1988 Act does not find place in various clauses contained in Sub-section (2) of Section 217 of the 1988 Act. Sub-section (4) of Section 217 of the 1988 Act reads, thus: "(4) The mention of particular matters in this section shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals."" 26. Indisputably, the question as to whether an amendment is prospective or retrospective in nature, will depend upon its construction. It is merely a disabling provision. Such a right could be enforced if a cause of action therefor arose subsequently. A right of the son to keep the right of the daughters of the last male owner to seek for partition of a dwelling house being a right of the male owner to keep the same in abeyance till the division takes place is not a right of enduring in nature. It cannot be said to be an accrued right or a vested right. Such a right indisputably can be taken away by operation of the statute and/or by removing the disablement clause. In Bhajan Kaur (supra), it was held: "16. Section 6 of the General Clauses Act, therefore, inter alia saves a right accrued and/ or a liability incurred. It does not create a right. When Section 6 applies only an existing right is saved thereby. The existing right of a party has to be determined on the basis of the statute which was applicable and not under the new one. It does not create a right. When Section 6 applies only an existing right is saved thereby. The existing right of a party has to be determined on the basis of the statute which was applicable and not under the new one. If a new Act confers a right, it does so with prospective effect when it comes into force, unless expressly stated otherwise." In Vishwant Kumar v. Madan Lal Sharma & Anr. [ (2004) 4 SCC 1 ], a three judge Bench of this Court repelled a similar contention that Section 9 of the Delhi Rent Control Act providing for the exclusion of operation thereof in the following words: "There is a difference between a mere right and what is right acquired or accrued. We have to examine the question herein with reference to Sections 4, 6 and 9 of the Act. It is correct that under Section 4 of the Rent Act, the tenant is not bound to pay rent in excess of the standard rent, whereas under Section 9 he has a right to get the standard rent fixed. Such a right is the right to take advantage of an enactment and it is not an accrued right." It was furthermore opined: "What is unaffected by repeal is a right acquired or accrued under the Act. That till the decree is passed, there is no accrued right. The mere right existing on date of repeal to take advantage of the repealed provisions is not a right accrued within Section 6(c) of the General Clauses Act. Further, there is a vast difference between rights of a tenant under the Rent Act and the rights of the landlord. The right of a statutory tenant to pay rent not exceeding standard rent or the right to get standard rent fixed are protective rights and not vested rights. On the other hand, the landlord has rights recognised under the law of Contract and Transfer of Property Act which are vested rights and which are suspended by the provisions of the Rent Act but the day the Rent Act is withdrawn, the suspended rights of the land lord revive." A similar question came up for consideration recently in Subodh S. Salaskar v. Jayprakash M. Shah & Anr. [ 2008 (11) SCALE 42 ], wherein it was noticed: "25. In Madishetti Bala Ramul (Dead) By LRs. [ 2008 (11) SCALE 42 ], wherein it was noticed: "25. In Madishetti Bala Ramul (Dead) By LRs. v. Land Acquisition Officer [ (2007) 9 SCC 650 ], this Court held as under: "18. It is not the case of the appellants that the total amount of compensation stands reduced. If it had not been, we fail to understand as to how Section 25 wi ll have any application in the instant case. Furthermore, Section 25 be ing a substantive provision will have no retrospective effect. The original award was passed on 8-2-1981: Section 25, as it stands now, may, therefore, not have any application in the instant case." The question is now covered by a judgment of this Court in Anil Kumar Goel v. Kishan Chand Kaura[2008 AIR SCW 295] holding: "8. All laws that affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations, unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. Hence the question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous, effect will have to be given to the provision is question in accordance with its tenor. If the language is not clear then the court has to decide whether, in the light of the surrounding circumstances, retrospective effect should be given to it or not. (See: Punjab Tin Supply Co., Chandigarh etc. etc. v. Central Government and Ors., AIR 1984 SC 87 ). 9. There is nothing in the amendment made to Section 142(b) by the Act 55 of 2002 that the same was intended to operate retrospectively. In fact that was not even the stand of the respondent. Obviously, when the complaint was filed on 28.11.1998, the respondent could not have foreseen that in future any amendment providing for extending the period of limitation on sufficient cause being shown would be enacted."" In Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & Etio & ors. [ (2007) 5 SCC 447 ], it was held: "The expression "privilege" has a wider meaning than right. A right may be a vested right or an accrued right or an acquired right. Ltd. v. Electricity Inspector & Etio & ors. [ (2007) 5 SCC 447 ], it was held: "The expression "privilege" has a wider meaning than right. A right may be a vested right or an accrued right or an acquired right. Nature of such a right would depend upon and also vary from statute to statute." Strong reliance has been placed by Mr. Viswanathan on Atma Ram Mittal v. Ishwar Singh Punia[[ (1988) 4 SCC 284 ], wherein it was held: "8. It is well-settled that no man should suffer because of the fault of the Court or delay in the procedure. Broom has stated the maxim "actus curiam neminem gravabit"-an act of Court shall prejudice no man. Therefore, having regard to the time normally consumed for adjudication, the 10 years exemption or holiday from the application of the Rent Act w ould become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within 10 years and even then within that time it may not be disposed of. That will make the 10 years holidays from the Rent Actillusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else." Yet again, reliance has been placed on M/s Kesho Ram & Co. & ors. etc. v. Union of India & Ors. [ (1989) 3 SCC 151 ], wherein it was held: "13. Learned Counsel urged that the impugned Notification enlarged the period of exemption for an indefinite period and it tends to amend Section 13 of the Act and it is contrary to the object and purpose of the Act. Developing the argument it was submitted that the Notification granted exemption to newly constructed buildings in the urban area of Chandigarh for a period of five years only from the operation of Section 13of the Act, therefore, no exemption could be available to newly constructed buildings after the expiry of five years. Developing the argument it was submitted that the Notification granted exemption to newly constructed buildings in the urban area of Chandigarh for a period of five years only from the operation of Section 13of the Act, therefore, no exemption could be available to newly constructed buildings after the expiry of five years. A suit if instituted during the period of exemption could not be decreed, nor such decree could be executed after the expiry of five years period but the last portion of the Notification which states that Section 13 of the Act shall not apply to decree of civil courts whether such decree was passed during the period of exemption or "at any time thereafter" enlarged the period of exemption for an indefinite period of time, and it seeks to amend Section 13 of the Act. We do not find merit in the submission. As noticed earlier Section 13(1) im poses a complete ban against the eviction of a tenant in execution of a decree passed by a civil court before or after the commencement of the Act and it further lays down that a tenant in possession of a building or rented land shall not be evicted except in accordance with the provisions ofSection 13 or an order made in pursuance of the provisions of the Act. Sub-Section (2) ofSection 13 se ts out statutory grounds on which the Controller, an authority constituted under the Act has power to pass order of eviction against a tenant. Section 13 ta kes away the jurisdiction of civil court to pass a decree of eviction or execution thereof against a tenant in respect of a building which is subject to the provisions of the Act The impugned Notification grants immunity to newly constructed buildings from the shackles of Section 13 of the Act for a period of five years. While doing so, the Notification has taken care to make the exemption effective by providing that the exemption shall be available to the building even if the decree is passed after the expiry of the period of five years provided the suit is instituted during the period of exemption. The emphasis is on the institution of the suit within the period of exemption of five years. The emphasis is on the institution of the suit within the period of exemption of five years. Once the landlord institutes a suit before the expiry of the period of exemption, the decree even if passed after the period of five years will not be subject to the provisions of Section 13 of the Act. This is the true meaning of the Notification The Notification does not enlarge the period of exemption instead it safeguards the rights of the parties which crystalise on the date of institution of the suit. The aforementioned decisions for the reasons stated supra are not applicable in the instant case. As indicated hereinbefore, the institution of a suit is not barred. What is barred is actual partition by metes and bounds. Reliance has also been placed on Sheela Devi & ors. v. Lal Chand & Anr. [ (2006) 8 SCC 581 ]. The question which arose therein was vesting of right of a coparcener of a mitakshra family under the old Hindu Law vis-`-vis Hindu Succession Act, 1956. The contention raised therein that the provisions of the Amendment Act, 20 05 will have no application as the succession had opened in 1989 was negatived, holding: "21. The Act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. Sub-section (1) of Section 6 of the Act governs the law relating to succession on the death of a coparcener in the event the heirs are only male descendants. But, proviso appended to Sub-section (1) of Section 6 of the Act creates an exception. First son of Babu Lal, viz., Lal Chand, was, thus, a coparcener. Section 6 is exception to the general rules. It was, therefore, obligatory on the part of the Plaintiffs-Respondents to show that apart from Lal Chand, Sohan Lal will also derive the benefit thereof. So far as the Second son Sohan Lal is concerned, no evidence has been brought on records to show that he was born prior to coming into force of Hindu Succession Act, 1956. It was, therefore, obligatory on the part of the Plaintiffs-Respondents to show that apart from Lal Chand, Sohan Lal will also derive the benefit thereof. So far as the Second son Sohan Lal is concerned, no evidence has been brought on records to show that he was born prior to coming into force of Hindu Succession Act, 1956. Thus, it was the half share in the property of Babu Ram, which would devolve upon all his heirs and legal representatives as at least one of his sons was born prior to coming into force of the Act." The said decision, thus, cannot be said to have any application whatsoever in this case. Reliance has also been placed by Mr. Viswanathan in Shyam Sunder & Ors. v. Ram Kumar & Anr. [ (2001) 8 SCC 24 ], wherein it was held that ordinarily a statute should be construed to have prospective operation. In that case, a right of pre-emption was sought to be taken away by Section 15 of the Punjab Pre-emption Act, 1913 as substituted by Haryana Act 10 of 1995 and it was on that premise, held: "28. From the aforesaid decisions the legal position that emerges is that when a repeal of an enactment is followed by a fresh legislation such legislation does not effect the substantive rights of the parties on the date of suit or adjudication of suit unless such a legislation is retrospective and a court of appeal cannot take into consideration a new law brought into existence after the judgment appealed from has been rendered because the rights of the parties in an appeal are determined under the law in force on the date of suit. However, the position in law would be different in the matters which relate to procedural law but so far as substantive rights of parties are concerned they remain unaffected by the amendment in the enactment. We are, therefore, of the view that where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act such legislation is prospective in operation and does not effect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are, therefore, of the view that where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act such legislation is prospective in operation and does not effect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statue and further a statute is not to be construed t have a greater retrospective operation than its language renders necessary, but an amending act which affects the procedure is presumed to be retrospective, unless amending act provides otherwise." 27. Mr. Viswanathan also placed strong reliance upon a decision of this Court in Narashimaha Murthy v. Susheelabai (Smt) and Others [ (1996) 3 SCC 644 ]. The principal question which arose for consideration therein was as to whether the premises which are tenanted ones would come within the definition of `dwelling house' so as to attract the rigours of Section 23 of the Act. This Court clearly held that the succession cannot be postponed and Section 23 ha s been engrafted "respecting tradition of preserving family dwelling house to effectuate family unity and prevent its fragmentation or disintegration by dividing it by metes and bounds". It was furthermore held that "the prohibition gets lifted when male heirs have chosen to partition it". 28. Thus, a right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. Indisputably, when there are two male heirs, at the option of one, partition of a dwelling house is also permissible.”” 15. At this juncture, the question arises as to whether the plaintiff being the daughter coming as class-I heir under the schedule of the Act, is entitled to claim partition and get the share as per her entitlement allotted in her favour in so far as the dwelling house of the parties are concerned. At this juncture, the question arises as to whether the plaintiff being the daughter coming as class-I heir under the schedule of the Act, is entitled to claim partition and get the share as per her entitlement allotted in her favour in so far as the dwelling house of the parties are concerned. The suit was instituted in the year 1992 and the first appeal came to be filed in the year 2001, whereafter this Court has been moved with the present second appeal in the year 2004 which has been admitted on framing the substantial questions of law as stated in aforesaid para-6. During the suit and first appeal, the provision of section 23 of the Act containing the temporary bar of claiming partition of dwelling house by daughter till happening of certain events was there in the statute and the same then stood as under:- “23. Special provision respecting dwelling houses:- Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I 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; but the female heir 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.” The proviso as above confers right on unmarried daughter, the daughter who has been deserted or is separate from her husband and a widowed daughter giving the right of residence notwithstanding the fact that her husband has left a dwelling house. The right of a female heir to claim partition of the family dwelling house although restricted so long as the male heirs do not choose to effect partition of the same yet it expressly recognizes that those category of female heirs have the right to reside therein. 16. The right of a female heir to claim partition of the family dwelling house although restricted so long as the male heirs do not choose to effect partition of the same yet it expressly recognizes that those category of female heirs have the right to reside therein. 16. The above provision came to be totally omitted by the 2005 Act, which came into force on 09.09.2005 without any other provision either having any sort of nexus with the earlier existing provision as contained in Section 23 of the Act or corresponding to it as also not remaining with any changes being introduced. The provision as it stood was that when a Hindu intestate leaves by surviving both male and female heirs as indicated in class-I of the schedule of the Act and the property includes a dwelling house wholly occupied by the members of the family, the right of the female heirs to claim partition of the same is thereby not wholly denied or taken away nor barred forever. So that cannot at all be taken to have created a vested right in favour of those male heirs. But the provision was creating a mere temporary logjam that the right to claim partition shall remain under suspension being not pressable to get the final outcome for that period until the male heirs choose to divide their respective shares therein and till then, the schedule-I female heirs as sub-classified under the proviso will be simply having the right of residence. The object and importance of the provision is clearly discernable. The divergent views in the decisions of various High Courts as regards the provision of the said section having its play has been finally set at rest by the Supreme Court in case of Narasimha Murthy Vr. Susila Bai; AIR 1996 SC 1826 . The object and importance of the provision is clearly discernable. The divergent views in the decisions of various High Courts as regards the provision of the said section having its play has been finally set at rest by the Supreme Court in case of Narasimha Murthy Vr. Susila Bai; AIR 1996 SC 1826 . It has been held that the right of the female heirs to claim partition of a dwelling house remains in abeyance during the lifetime of the male heirs and till such time that the male heirs choose to partition the property, as also until such time that the male heirs cease to occupy it as such and their occupation stands otherwise such as by letting it out or otherwise running counter to the very objective, and purpose behind such enactment as well as the goal sought to be achieved that is to maintain the sanctity of the family dwelling house respecting tradition of preventing its fragmentation and disintegration to effectuate family unity. The right of the female heir was remaining under suspension until the above enumerated events occur and the claim was fructifying only in case of happening of those eventualities. The Full Bench decision of this Court in case of Mahanti Matyalu vs Oluru Appanama And Ors.: AIR 1993 Orissa 36 has also been over ruled. But now in view of the total omission of the said section from the statue, the temporary bar and abeyance of right for the female heirs to the claim of partition of the dwelling house during the lifetime of the male heirs and till such time that such male heirs choose to partition the property until such time that the male heirs go to occupy it otherwise does no more stand. The provision by which the right to claim partition of dwelling house was only springing up on the happening of the above enumerated incidents and fructifying in case of all the eventualities happening has been swept away and thrown to the dustbin to serve the objective of removal of gender bias and remove the discrimination. The provision by which the right to claim partition of dwelling house was only springing up on the happening of the above enumerated incidents and fructifying in case of all the eventualities happening has been swept away and thrown to the dustbin to serve the objective of removal of gender bias and remove the discrimination. It may be kept in mind that though the right over the property was remaining all along when prior to the 2005 Act, its exercise was restrictive and contingent; it is now after omission of the provision of section 23 of the Act by virtue of the 2005 Act become exercisable even without the fulfillment of the conditions as those enumerated and notwithstanding such occasion since the provision restricting the exercise of right has stood omitted altogether and there stands the removal of the bar thereby. 17. The provision as it was there before omission by the 2005 Act, in my considered view was purely standing as a temporary bar for exercising the right to partition by the female heirs over the dwelling house wholly occupied by the members of the family. The female had the right over the property to the extent of her share as a class –I heir, but it was remaining under suspension or abeyance so as to be exercised and worked out in reality so as to prevent disintegration and preserve sanctity of the family dwelling house as long as the male heirs so desire. Thus the right over the dwelling house of the family wholly occupied by the members of the family standing recognized as such was put under restriction only for being exercised. It was therefore a restrictive right with restrictions put therein to get the same wholly worked out. This in no way was thus creating or clothing any vested right in favour of male heirs although standing as a weapon in their arms to put the right of class-I female heirs on hold from being exercised till such time the male heirs either choose to divide or put the said dwelling house into use in a manner running counter or offending the very objective sought to be achieved by that provision as then existing for the purpose of maintaining the sanctity of the family dwelling house respecting tradition of preserving family dwelling house to effectuate family unity and prevent its fragmentation or disintegration. Even if in a suit for nonfulfillment of those conditions, she was not being allowed with a share over the dwelling house but a suit or suits at a later date on happening of all those events was not legally barred. The provision was in relation to the exercise of the right at appropriate time but not concerning total de-recognition or negation of the right to claim for all times to come. The right over the property by virtue of that provision had not been given a total burial but it was as if being larva inside the volcano in readiness for eruption, at the moment of environmental disorder suiting the purpose when the conditions getting fulfilled. Thus, no finality was attached to such judgment of the courts denying the right to the female heirs to claim partition over the dwelling house. The exercise of the right was remaining in a dormant stage and springing up to life so as to be put into action on the happening of the enumerated eventualities. This omission of the said provision of section 23 of the Act by the 2005 Act having been made, the intention of the legislature is clearly culled out that the objective of preservation of the sanctity of family dwelling house and prevention of its disintegration unless the desire comes from male heirs has to give way and no longer survive for consideration on the face of gender bias and gender discrimination for their removal which has been the cry of the present time. Therefore, even in the instant suit, assuming for the sake of argument if we say that the plaintiff being the female heir is not entitled to exercise the right of partition over the dwelling house; however, in view of the omission of the said provision in the statute, she can very well file a suit again for the very same relief on the very day of disposal of the suit or on the next day onwards. So, when the present lis is continuing in the second appeal which has already been admitted and this Court finds that the provision creating the temporary bar to exercise the right has already been omitted, there arises no legal objection or impediment in answering it in favour of the plaintiff that she can well seek for partition of the said dwelling house in accordance with her share as the class-I heir of the Satyabadi against the defendant no. 2, the other class-I heir of Satyabadi. The provision of section 23 of the Act as was existing within all its four was thus a procedural one prescribing the appropriate time so as to the institution of the lis to enforce the right and it was merely a restriction for such time that its exercisable at such point of time when the events would so happen. 18. Although omission of the said section is not expressly stated to be retrospective yet now regard being had to the object behind such omission, it has to be said to be having its impact upon the pending lis at any stage in the court since the omission is not reopening a decision which had been rendered in that very lis that has so reached its finality. But as it has earlier been said that there was no finality to the decision and the right under the earlier provision in the Act was exercisable on the happening of eventualities, the female heirs having been denied with the right to claim partition in the lis can very well file it again in view of the omission of the provision from the statute and can get a decree if it is otherwise permissible in law even without establishing the eventualities which were required to be shown as existing as per earlier provision (since omitted) as the preconditions for grant of decree for partition of the dwelling house at the instance of the female heirs and notwithstanding all those. 19. 19. For the reasons aforementioned the judgments and decrees passed by the courts below in so far as dismissing the suit in respect of schedule-A, lot 2 property by declining to pass a preliminary decree entitling the plaintiff to 1/3rd share over the same by virtue of the then existing provision of Section 23 of the Act now cannot be sustained in view of the omission of the provision of section 23 of the Act from the statute which is the subsequent event arising out of the change of law that cannot be lost sight of but has to be certainly taken note of as discussed above. 20. The appeal is accordingly allowed in part. The suit of the plaintiff is hereby preliminarily decreed declaring her 1/3rd share as also 1/3rd share of defendant no. 2 and 1/3rd share of the defendant no.3 over schedule A; lot 1 and lot 2 property. The parties are directed to make amicable partition by metes and bounds within a period of three months hence among themselves failing which any party/parties would be at liberty to apply for final decree for the partition in respect of schedule A; lot 1 and 2 property in the light of the preliminary decree with the stipulation that for the purpose, the possession of the parties, their convenience so far as possible and practicable would stand respected taking into consideration the equitable factors as deemed just and proper. 21. In the facts and circumstances, the parties are to bear their respective cost of litigation throughout.

Binapani Nayak v. Pruthiraj Parida (dead) his L. Rs.