Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 144/2007
th
% 12 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
RFA No. 144/2007 Page 1 of 4
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Section 23 being repealed from the Hindu Succession Act.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repealed, a fresh suit can be filed and the existing suit, which was filed
RFA No. 144/2007 Page 2 of 4
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.
RFA No. 144/2007 Page 3 of 4
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 &
th
Sessions Judge, Central, Tis Hazari Courts, Delhi on 16 January,
2019 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
Ne
RFA No. 144/2007 Page 4 of 4