Veena Rani vs Om Dutt Sharma And Ors.
2018 Latest Caselaw 7325 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 144/2007

%                                                  12th December, 2018

VEENA RANI                                               ..... Appellant
                          Through:       Mr.    Kamlesh        Mahajan,
                                         Advocate with Mr. Prince
                                         Kumar,     Advocate         (M.
                                         No.9313083343).
                          versus

OM DUTT SHARMA AND ORS.                                ..... Respondents

                Through:                 Mr. K.K. Sharma, Advocate
                                         and Mr. S. Khan, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the Judgment of the trial court dated 23.02.2007 by which

the trial court has decided the preliminary issue in a suit filed for

partition by a female legal heir, being the appellant/plaintiff and by

relying upon Section 23 of the Hindu Succession Act, 1956 and

holding that since when the suit was filed on 02.08.2004, a female heir

could not seek partition of the family dwelling house, accordingly, the

suit was dismissed although during the pendency of the suit and before

the impugned judgment was passed on 23.02.2007, there was an

amendment to the Hindu Succession Act by the 2005 Act resulting in

Section 23 being repealed from the Hindu Succession Act.

2. The Ld. Counsel for the appellant/plaintiff has rightly

placed reliance upon the judgment of the Hon'ble Supreme Court in

the case of G. Sekar v. Geetha, (2009) 6 SCC 99 and this judgment

holds that there is no issue of prospectivity and retrospectivity when

Section 23 of the Hindu Succession Act is removed from the statute

book because by the repeal, all that has happened is that the bar to

seek partition has gone. In para 22 of this judgment, the Hon'ble

Supreme Court has observed that once the disability is removed from

the statute book, then the filing of a suit is no longer barred. In para 18

of the said judgment, the Hon'ble Supreme Court has further observed

that Section 23 only restricted the right, which was an existing right,

but limited to certain extent that a female could not seek partition of

the dwelling house by metes and bounds but after Section 23 has been

repealed, a fresh suit can be filed and the existing suit, which was filed

prior to the repeal of Section 23 of the 2005 Act, can continue. In para

25, the Hon'ble Supreme Court has clarified that there does not arise

an issue of applicability of Section 6 of the General Clauses Act, 1897

because there is no issue of any vested right being taken away.

Further, a clarification is given by the Hon'ble Supreme Court in para

26 of its judgment stating that Section 23 was merely a disabling

provision and it cannot be said that the male members have an accrued

or vested right to permanently deny partition by metes and bounds,

once the disability is taken away by the amendment to the statute.

Finally, in para 28 of the judgment, the Hon'ble Supreme Court has

observed that a right in terms of Section 23 of the Hindu Succession

Act to obtain a decree for partition is one whereby the right to seek

partition is kept in abeyance, but once the rights become enforceable,

the restrictions must be held to be removed. It is noted that in the facts

of the case before the Hon'ble Supreme Court in the case of G. Sekar

(supra), the suit was filed in the year 1996 and during pendency of the

litigation, an amendment came to the Hindu Succession Act and by

this 2005 amendment, Section 23 of the Hindu Succession Act was

repealed.

3. The aforesaid judgment of the Supreme Court was

followed by this Court in the case of Shashi Bahadur and Ors. v.

Malka Bahadur, 248 (2018) DLT 277 wherein this Court has upheld

the judgment of the trial court by which the trial court has referred to

the judgment in G. Sekar's (supra) case and held that Section 23 only

contains a disability and not a vested right.

4. In view of the aforesaid discussion, impugned judgment

of the trial court dated 23.02.2007 is set aside and it is held that the

suit is maintainable and the suit will now be decided by the trial court

in accordance with law. Parties to appear before the District &

Sessions Judge, Central, Tis Hazari Courts, Delhi and the District &

Sessions Judge will now mark the suit for disposal to a competent

court in accordance with law.

DECEMBER 12, 2018                               VALMIKI J. MEHTA, J
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