G.Sekar Vs. Geetha
& Ors.  INSC 741 (15 April 2009)
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 &
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
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).
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, 3 viz., Jothi, Maya and himself.
It was on the aforementioned premise, Ramesh was impleaded as a party in the
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
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
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 5 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.
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 6 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."
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
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
(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 7 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 8 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
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
(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
9 The Schedule
appended to the Act specifies the persons who would be the relations of Class
"Class I : Son;
daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased
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-
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 10 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:
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 11 although restricted so long as the male heirs do not
choose to affect partition of the same but it expressly recognizes her right to
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.
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."
13 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.
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.
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:
15 "(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
16 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.
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
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 536] considered the effect of omission
of the Rules in a subordinate legislation, holding:
18 "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
19 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 20 Act expressly keeps
alive old rights and liabilities but whether it manifests an intention to
It was furthermore
"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 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:
22 "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.
principles of interpretation of statute, the 1988 Act cannot be given
retrospective effect, more particularly, when it came into force on or about
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
"(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.
23 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:
24 "...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
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 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.
Jayprakash M. Shah & Anr. [2008 (11) SCALE 42], wherein it was noticed:
25 "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.
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 26 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
Petrochemical Industries Co. Ltd. v. Electricity Inspector & Etio &
ors. [(2007) 5 SCC 447], it was held:
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."
27 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:
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 28
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 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.
decisions for the reasons stated supra are not applicable in the instant case.
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
"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 30 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
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 31 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) 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 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
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 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
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
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
35 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
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
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:
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.
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
37 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:
notarized the affidavit of Govinda Singh few days after attesting the
"I do not
remember whether the testator signed any other affidavit on 29.11.95 apart from
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 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.
[Dr. Mukundakam Sharma]
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