G. SEKAR v. GEETHA & Ors.

Judgment

' ' ,, 1 . > } ~ [2009] 5 S.C.R. 1005 G. SEKAR v. GEETHA & ORS. (Civil Appeal No. 2535 of 2009) APRIL 15, 2009 A B [S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.] HINDU SUCCESSION ACT - Section 23 - Special provision relating to dwelling houses - Omission of by Hindu Succession (Amendment) Act, 2005 - Effect of - Constitution c of India, Article 136. Will - Proof of - Concuffent finding that it was validly proved - No reason to differ with the same. CONSTRUCTION OF STATUTES: Report of the Law Commission may be looked into for the purpose of construction of a statute - But the same would not prevail over a clear and unambiguous provision. In this appeal, the qt1estion involved was as to the effect of the amendment made to Hindu Succession Act, 1956 by the Amending Act, 2005 thereby omitting Section 23 of the Hindu Succession Act, which was a special provision relating to dwelling houses. D E F· Dismissing the appeal, the Court HELD:1. Section 23 of the Hindu Succession Act has been omitted so as to remove the disability on female heirs contained in that Section. It sought to achieve a G 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, this Court 1005 H t 1 1006 SUPREME COURT REPORTS [2009) 5 S.C.R. A tails 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 B 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 c 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. Where a partition has not taken place, Sub-section (5) of Section 3 shall apply. [Para 22] [1019-B-F] D E '174th Reporl of the Law Commission: referred to.

2.1. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already F been taken place. The operation of the said statute is no doubt prospective in nature. [Paras 22 and 23) [1020-F- G]

2.2. 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 G H ~ -/ G. SEKAR v. GEETHA & ORS. 1007 be a question which must be posed and answered. [Para A 24] (1021-A-B]

#3. 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, could have been applied provided it takes away somebody's vested right. Restrictive right contained in Section 23 of the Act, cannot be held to remain continuing despite the 2005 Act. [Para 25] (1021-C-D] B Eramma v. Verrupanna & Ors. (1966) 2 SCR 626; The c State of Orissa v. Bhupendra Kumar Bose & ors. AIR 1962 SC 945; S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India & Anr. (2006) 2 SCC 740; Brihan Maharashtra Sugar Syndicate Ltd. v. Janardan Ramchandra Kulkarni & ors. AIR 1960 SC 794; Raja Narayan/al Bansi/af v. Maneck Phiroz D Mistry AIR 1961 SC 29; State of Punjab & Ors. v. Bhajan Kaur & Ors. 2008 (8) SCALE 475; Vishwant Kumar v. Madan Lal Sharma & Anr. (2004) 4 SCC 1; Subodh S. Salaskar v . Jayprakash M. Shah & Anr. 2008 (11) SCALE 42; Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & Elio E & Ors. (2007) 5 SCC 447; Atma Ram Mitta/ v. lshwar Singh Punia (1988) 4 SCC 284 and Mis Kesho Ram & Co. & ors. etc. v. Union of India & Ors. (1989) 3 SCC 151, held inapplicable. Kolhapur Canesugar Works Ltd. & Anr. v. Union of India F & Ors. (2000) 2 SCC 536, referred to.

4.1. Institution of a suit is not barred. What is barred is actual partition by metes and bounds. [Para 26] [1031- A] G

4.2. 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, H ~ ...... J .. --' I ~ ~ ,. A B 1008 SUPREME COURT REPORTS [2009] 5 S.C.R. t 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. [Para 28] [1033-C-D]

4.3. 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 treated equally to that of the male heirs. Gender equality is recognized by the world community in general in the human rights "' • ' c regime. [Para 29) [1033-F} Sheela Devi & Ors. v. Lal Chand & Anr. (2006) 8 SCC 581, held inapplicable.