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,

2

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?”

3

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

4

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

5

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

6

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

7

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.”

8

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

9

of 1/5

th

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

10

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 174

th

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.”

12

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.

13

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

1/5

th

share therein in terms of the provisions contained in Section 8 of the

Act. 1/5

th

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:

14

“(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.”

15

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.

16

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:

17

“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.

18

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

19

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

37

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

38