RSA No.3503 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3503 of 2008 Date of Decision:11.11.2008 Swaran Singh ....appellant Versus Charanjit Kaur & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Ashish Gupta,Advocate for the appellant **** RAKESH KUMAR GARG J. This is defendants' second appeal challenging the judgment and decree of the Lower Appellate Court whereby suit of the plaintiffs has been decreed to the effect that they are co-sharers/co-owners to the extent of 3/5 share and defendant No.1 Swaran Singh is co-sharer/co-owner of 1/5 share and the defendants No.2 to 4 are co-owners/co-sharers in equal shares to the extent of 1/5 share and a preliminary decree for partition was passed. Briefly stated, the facts of the case are that the plaintiffs namely Charanjit Kaur, Manjit Kaur and Surjit Kaur filed a suit for separate possession by way of partition of the house in dispute as detailed in the head note of the plaint and situated at Kurali, Tehsil Kharar, District Ropar and for permanent injunction restraining the defendants from raising any construction. The plaintiffs submitted in their plaint that originally the house No.102, Ward No.4, Kurali was owned and possessed by Ujjal Singh and after his death the same was inherited by his wife, Kauro, through a Will dated 28.02.1988. After the death of Kauro the house in dispute was inherited by the plaintiffs and defendant No.1 and mother of RSA No.3503 of 2008 2 defendants No.2 to 4 namely Swaran Kaur. Each inherited the 1/5 share. So the plaintiffs have 3/5 share and defendant No.1 has 1/5 share and defendants No.2 to 4 have 1/5 share in the house in dispute. The plaintiffs are entitled for separate possession of 3/5 share being owner of the same. There remains a dispute between the parties and hence the plaintiffs filed this suit for separate possession and injunction by way of partition. Notice of the suit was given to the defendants. Defendants filed written statement and denied the averments of the plaint and further submitted that house in dispute is ancestral and coparcenary property of defendant No.1 and same is in possession of defendant No.1. Earlier the house in dispute was owned and possessed by Tulsi, grand father of the defendants and later on it was occupied by Ujjal Singh, father of defendant No.1 and after his death defendant No.1 is in possession of the same being his ancestral house. The defendant denied the execution of Will dated 28.02.1988. The defendant denied the share of plaintiffs in the suit property. It was stated that after the death of Kauro house in dispute is owned and possessed by defendant Swaran Singh alone. Earlier a dispute arose between the wife of defendant No.1 and his mother Kauro and the same was compromised on 03.02.1992. It was further averred that the suit is barred under the provision of Hindu Succession Act, so the defendant prayed for dismissal of the suit. From the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether the plaintiffs are co-sharers in the suit property? OPP 2. Whether the suit of the plaintiff is not maintainable in the present form? OPD 3. Whether the suit is barred by the provisions of Hindu Succession Act? OPD RSA No.3503 of 2008 3 4. Whether the plaintiffs are entitled to the separate possession of the suit property by way of partition?OPP 5. Relief. After hearing the parties and considering the evidence on record the trial Court dismissed the suit by relying upon Section 23 of Hindu Succession Act which barred the female member from claiming partition of a dwelling house. Aggrieved by the aforesaid judgment and decree of the trial Court, plaintiffs filed an appeal, which was accepted by the Additional District Judge( Ad hoc)-cum-Presiding Officer, Fast Track Court, Rupnagar and a preliminary decree was passed to the effect that plaintiffs are co- owners to the extent of 3/5 share and defendant No.1 Swaran Singh is co- sharer of 1/5 share and defendant Nos. 2 to 4 are co-owners in equal shares to the extent of 1/5 share. The Lower Appellate Court held that after the death of original owner, Smt.Kauro became the owner of the house in dispute and after the death of Ujjal Singh and Kauro, the plaintiffs and the defendants are legal heirs of deceased Ujjal Singh as well as his wife Kauro as per Hindu Succession Act. The Lower Appellate Court also found that by amendment of the Hindu Succession Act, which came into existence on 09.09.2005, Section 23 has been deleted and therefore the bar created by this Section is removed and the plaintiffs are entitled to get the dwelling house partitioned. Still not satisfied, the defendants have filed the instant appeal in this Court challenging the judgment and decree of the Lower Appellate Court. The learned counsel for the appellant has vehemently argued that the present suit was filed on 30.07.1999 i.e.much prior to the amendment dated 09.09.2005 and the same cannot be made applicable retrospectively and that this amendment will affect only those proceedings RSA No.3503 of 2008 4 in which the succession has opened after 09.09.2005 i.e.the date of notification of the amendment, whereas in the present case the succession of Ujjal Singh has opened on 30.07.1999 i.e.the date of filing of the suit and in such a situation there was no effect of the amending Act and therefore the trial Court rightly passed the judgment and decree on the basis of Section 23 of the Hindu Succession Act. On the basis of the above arguments, the following substantial question of law has been sought to be raised in the present appeal: “Whether the effect of Amending Act of Hindu Succession Act will effect those cases also where the succession has been opened much prior to the amendment? “ I have heard learned counsel for the appellant and perused the record. Admittedly, the house in dispute was owned by Ujjal Singh, who was father of plaintiffs and defendant Swaran Singh and Swaran Kaur (represented by defendant Nos.2 to 4). Kauro, mother of the plaintiffs and defendant No.1 and grand mother of defendant Nos.2 to 4 became the owner in possession of the house in dispute, after the death of Ujjal Singh. The plaintiffs along with defendants became the co-owners of the house in dispute being legal heirs of Kauro. It is useful to refer to Section 23 of Hindu Succession Act as it stood prior to 09-09-2005:- “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 RSA No.3503 of 2008 5 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.” From the aforesaid provisions, it is clear that before the amendment, Section 23 of the Hindu Succession Act created a bar on the right of female heirs of Hindu intestate to claim partition of dwelling house, however female heirs could get the share if the male heir decided to partition the dwelling house. Even prior to the amendment dated 09.09.2005 a bar created under Section 23 of the Hindu Succession Act 1956, applied only on the right of female heir of Hindu intestate to claim partition of dwelling house and there was no bar to the inheritance of the property of Hindu intestate being inherited by the daughters/female being Class-I heir under the Hindu Succession Act. Thus, the right of inheritance of a female being Class-I heir of a Hindu dying intestate was never under cloud and a female cannot be non-suited to inherit the property on the basis of Section 23 of the Hindu Succession Act as there is no change to the law of natural succession as per Hindu Succession Act. Even otherwise, by the amendment dated 09.09.2005, the bar created by the erstwhile Section 23 to claim partition by a female heir has been removed. The appeal is a continuation of the suit. In this case, Section 23 has been deleted on 09.09.2005, whereas the civil suit was decreed thereafter i.e.on 16.03.2006. Thus, the Court was bound to take note of the change in law which has taken place during the pendency of the case and decide the case as per the law of the land as applicable. In this case, the succession to the estate of Ujjal Singh by the appellant has never been disputed by the respondents. The dispute is only that they RSA No.3503 of 2008 6 could not file the suit for partition. The change in law is not being made effective retrospectively and the same has been applied only after the amendment has taken place. For the sake of argument, even if it is assumed that the suit for partition prior to 09.09.2005 was barred yet there is no bar to institute a fresh suit for partition on behalf of the appellant after 09.09.2005. Thus, the argument raised by the learned counsel for the appellant is misconceived. For the reasons recorded above, I find no merit in this appeal. No question of law arises in this appeal. Dismissed. (RAKESH KUMAR GARG) JUDGE 11.11.2008 neenu