1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 389 OF 1991 1. Vinayak Asaram Patil; 2. Sau. Jijabai Vinayak Patil ....Appellants. Versus Smt. Khatobai Pushpa Vasant Patil ....Respondents. Shri. Anil Kasliwal, Advocate for the appellants. Shri. Arvind R. Kawade h/f. Shri. Pradip R. Patil, Advocate for the respondent. CORAM : R.K. DESHPANDE, J. DATE : 9th September, 2009 ORAL JUDGMENT : 1. The appellants are the original defendant Nos. 1 and 2 and the respondent No. 1 is the original Plaintiff. The parties shall hereinafter be referred to as per their status as 'plaintiff' and 'defendants' in the Regular Civil Suit No. 28/1982. The plaintiff is the daughter in law of defendant Nos. 1 and 2. By this appeal, the defendants have challenged the judgment and order passed by the learned Additional District Judge, Amalner on 12th of March 1991, dismissing their Civil Appeal No. 2 376/1989, challenging the judgment and decree dated 31st of January 1985 passed by the learned Civil Judge, Junior Division, Amalner in Regular Civil Suit No. 28/1982. The Trial Court has passed the decree holding that in suit properties, the defendant Nos. 1 and 2 each, have 1/3 share and the deceased Vasant s/o. Vinayak Patil (the husband of the plaintiff) had remaining 1/3 share. It has been further held that the plaintiff and the defendant No. 2 have each got half share in 1/3 share of the deceased Vasant and the plaintiff is entitled to partition and separate possession of the suit properties as per her share. The Trial Court has further directed an inquiry in to the mesne profits under Order 20, Rule 12(1)(c) of the Code of Civil Procedure and has further directed that the partition of the field property shall be made by the Collector Jalgaon or any Gazetted subordinate of the Collector, Jalgaon with further direction that the properties given in schedule Serial Nos. 1 and 2 shall be partitioned by appointing Commissioner. 2. The dispute in the suit relates to Gat No. 204, open plot No. 40 and residential Gram Panchayat House NO. 75. The plaintiff has filed the suit for partition and separate possession of these properties, alleging that the suit properties are ancestral properties of defendant No. 1 in which the husband of plaintiff had share. The defendants denied that the properties are ancestral properties. They further denied that the plaintiff has any right to institute any suit for partition in view of bar under section 23 of the Hindu Succession Act 1956, hereinafter referred to as 3 the "said Act". In respect of Gat No. 204, the Trial Court recorded a finding that Exh. 33 clearly shows that Asaram Vithoba, the father of the defendant No. 1, was tenant in respect of the said property between 1956 to 1959 and he died on 4.10.1959. This property was purchased by Asaram Vithoba as protected tenant and that the defendants have inherited the said property. The son of the defendant No. 1, who was the husband of the plaintiff was therefore, entitled to have share in the said property. In respect of Plot No. 40 also, it was held that the same was an ancestral property of the defendants. In respect of the house No. 75 also, there was no dispute that the same was an ancestral property. The Trial Court rejected the contention of the defendants that section 23 of the Hindu Succession Act operate as a bar for the plaintiff to file a suit for partition and separate possession. It was held that section 23 was not applicable as only one male heir was survived. 3. The appellate Court confirmed the findings recorded by the Trial Court holding that all the three properties were the ancestral properties of the defendants and the husband of the plaintiff being the member of the joint family was entitled to have share in it. The contention of the defendants that Gat No. 204 was the self-acquired property of the defendants, were also rejected. The Appellate Court also held that the provisions of section 23 of the Hindu Succession Act were not applicable. 4. This Court admitted the instant appeal on 16.1.1992. However, 4 while admitting the appeal, no substantial question of law was framed. Shri. Kasliwal, the learned counsel for the defendant, framed three substantial questions of law on 11.8.2009 which are reproduced below :- "1. Whether daughter-in-law can demand the partition in the residential house which is used for common residence or she has only right to reside in the same. 2. In view of Sec. 23 of the Hindu Succession Act whether the female member has only right to reside or claim partition when the other male member of the family is alive. 3. Whether the land gat No. 204 which is tenanted land can be transferred by way of partition without prior permission of the Collector in view of Sec. 43 of the Bombay Tenancy and Agricultural Lands Act." The learned counsel for the plaintiff was given time to study the matter on these substantial questions of law and thereafter, the matter is heard. 5. In fact, the questions of law as are framed above, all revolve around Section 23 of the Said Act. In respect of the question, whether daughter-in-law can demand the partition in the residential house which is used for common residence or she has only right to reside in the same, as provided under Sec. 23 of the said Act, the learned counsel for the appellant has relied upon the decision of the Apex Court reported in AIR 1996 Supreme Court 1826, Narashimaha Murthy V. Susheelabai and others. The judgment of the Apex Court impliedly overruled the 5 view taken by this Court in the case reported in AIR 1994 Bombay 319, Anant V. Janaki bai. It was the view taken by this Court in the aforesaid reported judgment that whether there is only one male surviving member in the family, section 23 of the Hindu Succession Act, 1956 is not attracted. The learned counsel for the defendants submits that this is the view taken by both the Courts below in the instant case also and hence, the matter is no more res-integra in view of the judgment of the Apex Court referred to above in Narashimaha's case. It is true that the judgment of this Court reported in Anant's case stands overruled and the provisions of section 23 of the Hindu Succession Act have been held to be applicable even where there is only sole surviving member of the joint family. However, the matter does not rest there. 6. The learned counsel appearing for the plaintiff has, on the other hand, relied upon the judgment of the Apex Court reported in (2009) 6 Supreme Court Cases 99, G. Sekar Vs. Geetha and others, and also the decision of the Division Bench of this Court reported in 2007 (2) ALL MR 679, Smt. Kaushalyabai Biharilal Pateriya Vs. Hiralal Bhagwandas Gupta. It has been urged that by way of amendment which has been introduced by Amended Act 1939 of 2005, section 23 of the said Act has been omitted. As a result of such omission, the female member, who is the plaintiff herein, who is daughter in law of defendants, is entitled to share in the dwelling house. 6 7. Both the Courts below have recorded a finding of fact that Gat No. 204 was purchased by Asaram, the father of the defendants on 1.4.1957 and he died on 4.10.1959. The defendants have inherited the tenancy right which became the ancestral property. This finding is based upon the documentary evidence of Exhs. 32 and 33. The learned counsel for the appellant could not point out any infirmity in recording such finding. In my view, no substantial question of law arises out of such concurrent findings recorded by the Courts below. The finding that Gat No. 204 is the ancestral property of defendants, is based upon the evidence available on record, the same is, therefore, required to be maintained. 8. So far as the question of dwelling house is concerned, the learned counsel for the appellants conceded to the position that in view of the decision of the Apex Court in G. Sekar's case cited supra, the suit for partition is maintainable. However, what he urged is that the bar under section 23 of the said Act would operate for effecting partition by metes and bounds, as has been observed by the Apex Court. The learned counsel further urged that section 23 of the said Act was on the statue book when the suit was instituted and the amendment to omit section 23 which came in to force in the year 2005 i.e. during pendency of this appeal, would not affect decision of suit. According to him, the omission would operate prospectively and it will not operate retrospectively to cover the controversy involved in the suit which is filed earlier to the 7 amendment. 9. The Apex Court in G. Sekar's case cited supra was dealing with the case which arose out of the suit for partition instituted for real sisters of the defendants therein. The learned Single Judge of the High Court held that the suit for partition was maintainable and a bar under section 23 of the said Act will not operate. In appeal the Division Bench observed that the amendment came in to force during the pendency of the appeal. However, even assuming that there was any embargo at the time of filing the suit or the judgment by the 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. It was further observed that after 9.9.2005 any female heir can seek for partition even in respect of the dwelling house. The 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. The Apex Court dismissed the appeal. Para No. 30 and 31 of the judgment which are material are reproduced below :- "30. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. 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 8 not retrospective in nature, its application is prospective. 31. It is now a well-settled principle of law that the question as to whether a statue having prospective operation will affect the pending proceedings would depend upon the nature as also the 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." It is thus apparent that although the High Court held that operation of section 3 of 2005 Act is retrospective in character, it does not make any difference. The Apex Court held that what should have the High Court have held is that although it is not retrospective in nature, it's application is prospective. Thus, it was held that the provision was applicable even during the pendency of the appeal and the bar of section 23 stood removed. The Apex Court further held in para 55 that the fact remains that the section 23 of the Hindu Succession Act as it stood was applicable on the date of the institution of the suit and the respondent may file a new suit and obtain a decree for partition. Thus, the view was confirmed by holding that the deletion of section 23 of the said Act conferred the right upon a daughter to institute a suit for partition and to get her share by metes and bounds without any restrictions as were available under section 23 of the said Act. The learned counsel for defendants did not press the claim in respect of plot No. 40. 9 10. In view of above, I do not find any substance in the contentions raised by the learned counsel for the appellants. On the question urged, I conclude my judgment by holding that the bar under section 23 of the Hindu Succession Act, 1956 having been removed by its omission effected by way of amendment by 2005 Act, the female became entitled to claim partition even when there is only one male surviving member, the Regular Civil Suit No. 28/1982, filed by the plaintiff for partition and possession of ancestral property of the defendant No. 1 was maintainable, the suit properties were the ancestral properties of defendants, the plaintiff is entitled to share in a dwelling house. In view of this position, there is no transfer of property in a manner which would attract Sec. 43 of the Bombay Tenancy and Agricultural Lands Act. The judgment and decree as has been passed by trial Court on 31st January 1985 in R.C.S.No. 28/1982, as confirmed in Civil Appeal No. 376/1989, is maintained. 11. The appeal is dismissed without any order as to costs. [ R.K. DESHPANDE, J. ] ssc/sa389.91