TMI Blog2009 (4) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, viz., Jothi, Maya and himself. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. The Schedule appended to the Act specifies the persons who would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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, how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 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 constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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. Reliance has been placed by Mr. Viswanathan on The State of Orissa v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 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 ₹ 15,000/- to ₹ 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cient 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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