REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   2535       OF 2009 [Arising out of SLP (Civil) No. 9221 of 2007]

G. Sekar …Appellant

Versus

Geetha & Ors. …Respondents

J U D G M E N T  

S.B. SINHA, J :   

1. Leave granted.

2. Effect of the amendment in the Hindu Succession Act, 1956 (for short

“the Act”) by reason of the Hindu Succession (Amendment) Act, 2005 (for

short “the 2005 Act”) insofar as therein Section 23 has been omitted is the

question involved herein.

3. The said question arises in the following factual matrix.

The property in suit was owned by one Govinda Singh.  He purported

to  have  executed  a  Will  in  favour  of  his  son,  the  appellant  herein  on

29.11.1995.  His wife Sakunthala Bai predeceased him.  The said Govinda

Singh died on 9.01.1996 leaving behind the appellant  (original defendant

No. 1) and four daughters, viz., Geetha and Vijaya (plaintiffs) and Shanthi

and Uma (original defendant Nos. 2 and 3).

Indisputably, the parties to the suit were residing in the premises in

suit.  Govinda Singh was also a government contractor.  He was running a

business of transport.  His daughters were also partners in the firm.  Inter

alia on the premise that Govinda Singh died intestate and as disputes and

differences  arose  between  the  plaintiffs  and  the  defendants  as  regards

enjoyment  of  the  property,  a  suit  for  partition  was  filed  on  11.03.1996

(marked  as  C.S.  No.  153  of  1996)  in  the  High  Court  of  Judicature  at

Madras.  The suit property inter alia consisted of residential premises being

No. 36, First  Cross Street,  West C.I.T. Nagar, Madras – 600 035 as also

some movable properties.

4. Defendant No. 4 Ramesh filed an application for impleadment in the

said suit  alleging that Govinda Singh had married one ‘Saroja’ who was,

thus, his second wife and through her he had two daughters and one son,

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viz.,  Jothi,  Maya  and  himself.   It  was  on  the  aforementioned  premise,

Ramesh was impleaded as a party in the said suit.   

Appellant in his written statement inter alia contended:

(i) In  terms of  the  aforementioned  Will  dated  29.11.1995,  the  suit

property, having been bequeathed in his favour, has vested in him

absolutely.

(ii) In any event, having regard to the provisions of Section 23 of the

Act, the suit for partition was not maintainable.

5. Defendant No. 4 also filed a written statement alleging that the Will

was not a genuine one and was prepared subsequent to 10.12.1995.   

In the said suit, the following issues were framed:

“(1) Whether  the  deceased  Mr.  M.K.  Govinda Singh died intestate? (2) Whether  the  suit  for  partition  by  the daughters  of  the  deceased  M.K.  Govinda  Singh, who died intestate, is maintainable or not?    (3) Whether the alleged will  dated 29.11.1995 said to have been executed is genuine one and, if so, who are the beneficiaries?”

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6. On or about 7.01.1999, an additional issue was framed, which reads

as under:

“Whether the D-4 is entitled to have any share in the schedule property? If so what is his share?

7. Indisputably, the appellant also initiated a testamentary proceedings

for  grant  of  Letters  of  Administration  with  a  copy  of  the  Will  annexed

thereto, which was marked as O.P. NO. 329 of 1996.  The plaintiffs of the

suit No. 153 of 1996 entered caveat in the said proceeding; it was marked as

T.O.S. No. 4 of 1998.   

The issue framed in the said testamentary proceedings was:

“(1) Whether  the  Will  of  Late  M.K.  Govinda Singh is true, valid and genuine?”

8. The learned Single Judge held that the appellant could not prove due

execution of the Will  as  several suspicious circumstances surrounded the

same.   

It was furthermore held that having regard to the omission of Section

23 of the Act and in view of the fact that even the Defendant No. 4 in his

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written statement asked for partition of the property, Section 23 of the Act

would not stand in the way of plaintiffs’ suit for partition.  It was directed:

“28. In  the  result,  T.O.S.  No.  4  of  1998  is dismissed with cost of the defendants.  In C.S. No. 153 of 1996, there shall  be a preliminary decree for partition of the suit  property into eight equal shares and allotment of two shares together to the plaintiffs.   C.S.  No.  153  of  1996  shall  stand adjourned sine die.”

9. Two intra-court appeals were preferred against the said judgment and

decree, which were marked as O.S.A. Nos. 196 and 197 of 2001.  By reason

of the impugned judgment, the said appeals have been dismissed.   

As regards the issue of the validity and/ or genuineness of the Will,

the Division Bench held:

“21. It is no doubt true that P.W.4 belongs to a noble profession and ordinarily great weight is to be  attached  to  such  evidence.   However,  apart from  the  fact  that  several  contradictions  are available  from  the  evidence,  P.W.4  cannot  be characterized as an independent witness as it is she who had given the reply notice Ex. D-3 on behalf of the propounder of the Will.  At the time when she  gave  the  reply,  there  is  no  whisper  in  such reply  that  in  fact  she  had  drafted  the  will  and attested the same.  These are many of the aspects appearing from the evidence of P.Ws. 1 to 4 which create sufficient doubt regarding the due execution of the Will.  It is of course true that many of the contradictions  may  appear  to  be  innocuous  in

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isolation.   But,  when all  these contradictions are considered together along with the fact that thumb impression  was  given  by  the  executant,  even though  he  was  obviously  signing  the  document, and the fact that in the typed will line-spacing in different pages appear to be irregular, they create sufficient  doubt regarding the due execution and genuineness of the will.”

As regards application of Section 23 of the Act, it was opined:

“…It is  no  doubt  true that  such  amendment  has come into  force  during  pendency of  the  appeal. However,  even  assuming  that  there  was  any embargo at  the  time of filing the suit  or passing the  judgment  by  the  learned  Single  Judge  as contemplated  under  Section  23  of  the  Act  as  it stood, in view of the amendment and deletion of such provision, it is obvious that there is no such embargo  after  9.9.2005.   In  other  words,  after 9.9.2005  any  female  heir  can  seek  for  partition even  in  respect  of  a  dwelling  house.   This subsequent event arising out of change in law is obviously  to  be  applied  and,  therefore,  the question of applying bar under Section 23 of the Act no longer arises for consideration.”

10. Mr.  K.V.  Viswanathan,  learned  counsel  would,  in  support  of  the

appeal, raise the following contentions:

(i) The High Court committed a serious error in passing the impugned

judgment  insofar  as  it  failed  to  take  into  consideration  that  the

amendment carried out  in the Act by reason of the 2005 Act is

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only prospective in nature, as would be evident from the report of

the  Law  Commission  as  also  the  Statement  of  Objects  and

Reasons thereof and, thus, the impugned judgment is liable to be

set aside.

(ii) The  2005  Act,  on  a  plain  reading,  cannot  be  held  to  have

retrospective effect and, thus, rights and obligations of the parties

should  have  been  determined  as  were  obtaining  on  the  date  of

institution of the suit.

(iii) If Section 23 of the Act is given retrospective effect, Section 6 of

the Act will also stand amended with retrospective effect.

(iv) In view of the fact that execution of the said Will had been proved

and all  purported  suspicious  circumstances  had  been explained,

the High Court committed a serious error in opining that the Will

dated 25.11.1995 had not duly been proved.

11. Mr. K. Ramamoorthy, learned senior counsel appearing on behalf of

the respondents, on the other hand, would support the impugned judgment.

12. Before adverting to the rival contentions raised herein, we may place

on record that the High Court by reason of the impugned judgment has set

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aside that part  of the order of the learned single judge whereby Govinda

Singh was held to have married Saroja and had begotten Ramesh and two

other daughters, viz., Jothi and Maya.  Ramesh has accepted the said finding

as no appeal has been preferred therefrom.  

13. The Act brought about 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

equal right in the matter of succession and inheritance with that of the male

heirs.   

Section 8 of the Act reads as under:

“8  -  General  rules  of  succession  in  the  case  of males  The property of a male Hindu dying intestate shall devolve  according  to  the  provisions  of  this Chapter— (a)  firstly,  upon  the  heirs,  being  the  relatives specified in class I of the Schedule; (b)  secondly,  if  there  is  no  heir  of  class  I,  then upon  the  heirs,  being  the  relatives  specified  in class II of the Schedule; (c)  thirdly,  if  there  is  no heir  of  any of  the two classes, then upon the agnates of the deceased; and (d)  lastly,  if  there  is  no  agnate,  then  upon  the cognates of the deceased.”

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The Schedule appended to the Act specifies the persons who would

be the relations of Class I, viz.:

“Class I : Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre- deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre- deceased son; daughter of a pre-deceased son of a pre-deceased son;  widow  of  a  pre-deceased  son  of  a  pre- deceased son…”

14. 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,  makes  an  exception  to  the

aforementioned rule by providing the manner in which the interest  in the

coparcenary 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 provisions of the

Act.   

15. The property in the hands of Govinda Singh was not a coparcenary

property.  It was his self-acquired property.  The parties hereto, therefore,

obtained  equal  shares  being  the  relatives  specified  in  Class-I  of  the

Schedule.  Plaintiffs – Respondents, therefore, became owners to the extent

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of 1/5th share of the said property.  The title to the aforementioned extent of

each  co-sharer,  having  devolved  upon  them  by  reason  of  operation  of

statute, was absolute.   

16. Section 23 of the Act, however, curtails the rights of the daughters to

obtain a decree for partition in respect of dwelling houses, stating:

“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 appended to Section 23 of the Act confers right of the

daughter  who  is  separate  from her  husband  and  giving  the  right  to  the

widow in spite of the fact that her husband has left a dwelling house.  The

right  of  a  female  heir  to  claim  partition  of  the  family  dwelling  house

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although restricted so long as the male heirs do not choose to affect partition

of the same but it expressly recognizes her right to reside therein.      

17. The  said  property  belonging  to  Govinda  Singh,  therefore,  having

devolved upon all  his  heirs  in  equal  share  on his  death,  it  would not  be

correct to contend that the right, title and interest in the property itself was

subjected to the restrictive right contained in Section 23 of the Act.  The

title  by  reason  of  Section  8  of  the  Act  devolved  absolutely  upon  the

daughters as well as the sons of Govinda Singh.  They had, thus, a right to

maintain a suit for partition.   

Section 23 of the Act, however, carves out an exception in regard to

obtaining a decree for possession inter alia in a case where dwelling house

was possessed by a male heir. Apart therefrom, the right of a female heir in

a property of her father, who has died intestate is equal to her brother.   

18. Section 23 of the Act merely restricts the right to a certain extent.  It,

however, recognizes the right of residence in respect of the class of females

who come within the purview of proviso thereof.  Such a right of residence

does not depend upon the date on which the suit has been instituted but can

also be subsequently enforced by a female, if she comes within the purview

of proviso appended to Section 23 of the Act.

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19. We have been taken through the 174th Report of the Law Commission

which  recommended  omission  of  Section  23  of  the  Act  in  view  of

amendment in Section 6 of the Act.   

Report of the Law Commission although may be looked into for the

purpose of construction of a statute but, it is trite that the same would not

prevail  over  a  clear  and  umambiguous  provision  contained  therein.   We

may, however, notice Clause 3.2.9 of the Report of the Law Commission, to

which our attention has been drawn to, 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  HSA 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   HSA needs  to  be  deleted  altogether and there is  great support   for   this   from  various   sections   of society  while  replying  to  the questionnaire.”

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The  last  sentence  of  the  said  paragraph  clearly  shows  that  it  was

thought necessary to delete the said provision as there was a great support

therefor from various sections of the society.  Indisputably, the amending

Act was not enacted in total consonance of the recommendations of the Law

Commission.  

20. We may in the aforementioned backdrop notice the relevant portion

of the Statement of Objects and Reasons of the 2005 Act, which 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.”

21. It is,  therefore,  evident  that  the  Parliament intended to achieve the

goal of removal of discrimination not only as contained in Section 6 of the

Act  but  also  conferring  an  absolute  right  in  a  female  heir  to  ask  for  a

partition in a dwelling house wholly occupied by a joint family as provided

for in terms of Section 23 of the Act.

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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:

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“(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.”

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In  the  factual  matrix  obtaining  in  Eramma (supra),  Section  8  was

construed in the light of Section 6 of 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.  

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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.   

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-à-vis  non applicability of Section 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:

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“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. 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.  

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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.  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

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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 of 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 therefore 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

20

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 of Section 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 by s. 646 there 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:

21

“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. 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.

22

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. 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:

23

“…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:

24

“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 will have any application in the instant case. Furthermore,  Section  25  being  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

25

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. Nature of such  a  right  would  depend  upon  and  also  vary from statute to statute.”

26

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  would  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  Act illusory 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

27

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 13 of 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) imposes 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 of Section 13 or an order made in pursuance of the provisions of the Act. Sub-Section (2) of Section 13  sets  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 takes 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

28

during the period of exemption. 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-à-

vis  Hindu Succession  Act,  1956.   The contention  raised  therein  that  the

provisions  of  the  Amendment  Act,  2005 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

29

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. 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

30

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 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

31

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 has 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.

29. Another aspect of the matter must also be borne in mind.   

  In terms of Articles 14 and 15 of the Constitution of India, the female

heirs, subject to the statutory rule operating in that field, are required to be

32

treated equally to that of the male heirs.  Gender equality is recognized by

the world community in general in the human rights regime.   

It  is  of  some  significance  to  notice  that  the  South  African

Constitutional Court in  Bhe & Ors. v.  The Magistrate, Khayelisha & Ors.

[(2004) 18 BHRC 52] declared the Black Administration Act, 1927 (South

Africa) and the Regulations of the Administration and Distribution of the

Estates of Deceased Blacks (South Africa) ultra vires as in terms whereof

the customary law of succession where principle of male primogeniture was

central to customary law of succession was provided for.  

It was held by the majority that the rule of male primogeniture as it

applied  in  customary law to  the inheritance of  property was inconsistent

with the constitution and invalid to the extent that it excluded or hindered

women and extra-marital  children  from inheriting  property.  The  rules  of

succession in customary law had not been given the space to adapt and to

keep pace with changing societal conditions and values. Instead, they had

over  time  become  increasingly  out  of  step  with  the  real  values  and

circumstances of the societies they were meant to serve. The application of

the customary law rules of succession in circumstances vastly different from

their  traditional  setting  caused  much hardship.  Thus  the  official  rules  of

33

customary  law  of  succession  were  no  longer  universally  observed.  The

exclusion of women from inheritance on the grounds of gender was a clear

violation of the constitutional prohibition against unfair discrimination.  

The said view of the Constitutional Court of South Africa has been

noticed by this Court in Anuj Garg & Ors. v. Hotel Association of India &

ors. [AIR 2008 SC 663].

Even  otherwise,  it  is  not  a  fit  case  where  we should  exercise  our

discretionary jurisdiction under Article 136 of the Constitution of India as

the fact remains that Section 23 of the Hindu Succession Act as it stood was

to be applicable on the date of the institution of the suit. Respondents may

file a new suit and obtain a decree for partition.   

30. The question as to whether the Will was validly executed or not is

essentially a question of fact.   Both the learned Single Judge as also the

Division  Bench  pointed  out  a  large  number  of  prevailing  suspicious

circumstances to opine that the same had not been validly executed.

Let us now briefly consider the question as to whether the execution

of the Will has duly been proved.  

34

Appellant stated in his evidence that one Ms. Radhai, Advocate (PW-

4) prepared the Will and that the testator gave instructions in the morning of

29.11.1995  therefor.   He  further  stated  that  at  the  time  his  father  gave

instructions for preparation of the Will, their neighbour Vishwanathan (PW-

3) and Mrs. Radhai, Advocate were present.  He further stated:

“I  do  not  know  where  exactly  the  Will  was typewritten”.

However,  in  Ex.  D-3,  it  has  not  been  mentioned  that  Ms.  Radhai

prepared the Will and had attested the same.  

PW-3 Vishwanathan deposed that “at the instance of Govinda Singh,

Radhai brought the typedwritten Will”.  However, in cross examination, he

stated: “I do now know where the Will was typed”.  He furthermore stated:

“I  was  present  when  Govinda  Singh  gave instructions to Mrs. Radhai for preparation of the Will.   None  else  were  present.   Govinda  Singh gave instructions  to  Mrs.  Radhai  by 10.00 A.M. She brought the typed Will by 2.00 P.M., I was not present throughout in the hospital.”

PW-4 Ms. Radhai in her examination in chief stated:

35

“On 29.11.1995  at  10.00  a.m. I  went  to  Devaki Hospital.  I met Govinda Singh, PW-2 and PW-3 were present in the hospital.  PW-2 going here and there  in  the  hospital.   The  testator  gave instructions to me to draft  the Will.   I noted the instructions  in  a  piece  of  paper,  came  to  High Court and got the Will typed.  The Will was typed by  a  typist  who  was  available  in  the  corridors. The typist  was  s.  Teresa.   At about  2.00 P.M. I went  to  the  hospital  on  the  same  day,  read  the contents of the Will to the testator, then he affixed his left thumb impression…then I signed the Will. Thereafter PW-3 signed the Will.”

However, in the cross-examination, she stated:

“On 29.11.95 at  about  8.00  a.m. in  the  morning Vishwanathan came to my house and told that the testator  wanted me to meet him…I do not  know the mother-tongue of the testator.  I did not retain the note  of  instructions  given by the testator  for drafting the Will.   Teresa was the regular  typist. Because the testator used to talk to me in Tamil, I drafted  the  Will  in  Tamil.   The  testator  had  not instructed  me  that  the  Will  should  be  in  Tamil only.  I was not by the side of Teresa when she typed the Will.    I only gave instructions to her. Teresa had not drafted the Will.  I drafted the Will in writing and gave it to her for typing.  I do not have the manuscript.  I did not compare the typed Will with the manuscript.”

36

Appellant filed an affidavit in support of his case, which was attested

and drafted by PW-4 Ms. Radhai in English.  Appellant did not speak of this

affidavit.  PW-3 Vishwanathan in the cross-examination admitted:

“I do not know whether Govinda Singh signed any other paper apart from Ex. P.1”.

PW-4 Ms. Radhai in the cross-examination stated:

“I have notarized the affidavit  of Govinda Singh few days after attesting the Will.”  

However, she admitted:

“I  do  not  remember  whether  the  testator  signed any  other  affidavit  on  29.11.95  apart  from  the Will.”

On further cross-examination, she deposed:

“Ex. P.2 is  an affidavit  which I have attested on 29.11.95.  I have attested P-2 in my office.  I have drafted the affidavit.   I supplied the stamp paper for  drafting the affidavit.   Because the  attestator wanted an affidavit  to  confirm the Will,  Ex.  P.2 was  drafted.   I  purchased  the  stamp  papers  for drafting the affidavit.”

However, it has been brought to our notice that the stamp paper had

been purchased by PW-4 on 11.10.1995 in the name of M.K. Govinda Singh

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from a place called Thiriuviyaru in Thanjore District  which is  200 miles

away from Chennai.  She further deposed:

“I do not remember where I purchased the stamp papers for drafting Ex. P.2.  There is no particular reason  as  to  why  the  affidavit  was  drafted  in English”.

31. Both the courts below have considered all the essential ingredients of

proof  of  Will,  viz.,  preparation  of  the  Will,  attestation  thereof  as  also

suspicious  circumstances  surrounding  the  same.   They have  arrived  at  a

concurrent finding that the Will was not validly proved.  We do not find any

reason to differ therewith.

32. For the reasons aforementioned, the appeal is dismissed.  However, in

the facts and circumstances of the case, there shall be no order as to costs.  

………………………….J. [S.B. Sinha]

..…………………………J.     [Dr. Mukundakam Sharma]

New Delhi; April 15, 2009

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