9911796707
TMI Blog2009 (4) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cterized 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected 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. 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. 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. 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 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "-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 was submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mains 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. 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 typedwritte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
