THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.544 of 1999 Between: N. Sridevi ……Appellant. AND N. Srinivasa Rao and others. ……Respondents. THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.544 of 1999 JUDGMENT: The appellant in this second appeal had filed O.S.No.2348 of 1987 on the file of VI Assistant Judge (Junior Civil Judge), City Civil Court, Hyderabad for partition claiming 17th share in the suit schedule property. On contest, the said suit was decreed. It is not necessary to mention details of the claims on either side, in view of the judgment now proposed. Against the decree passed in the said suit, the 2nd defendant filed a first appeal in A.S.No.281 of 1994 before the lower appellate Court, which was allowed under the impugned judgment and decree, primarily, on the ground that under Section 23 of the Hindu Succession Act, 1956 (for short ‘the Act’), the appellant/plaintiff is not entitled to seek partition as the suit schedule house is a dwelling house. The preliminary decree accordingly was set aside. The said judgment is questioned in this Second Appeal inter alia on various grounds and by order of this Court dated 06.08.1999, this appeal was admitted and interim injunction as prayed for was granted. The said status continues as such even today. It is apparent that by inadvertent, while admitting this appeal, this Court did not formulate the substantial questions of law, which arise for consideration in this appeal. Since the appeal is pending on the file of this Court from 1999, under Section 100 (5) of the C.P.C., I have formulated the following substantial questions of law, which arises for consideration as stated in Para No.14 (a) (b) and (c) of grounds:- “(14) (a) Whether Section 23 of the Hindu Succession Act applies to a case where there is only one male heir to a deceased Hindu? (b) Whether Section 23 of the Hindu Succession Act applies to a dwelling house, which is being enjoyed in severalty and is being used as more than one dwelling unit? (c) Whether even if the female heirs are not entitled to seek partition by reason of Section 23 of the Hindu Succession Act, the male heir is not bound to pay the amount of profits representing the shares of the female heir.” After hearing the learned counsel for either side, an important subsequent event is brought to the notice of this Court namely; that by virtue of the Central Act 39/2005, Section 23 of the Act is now deleted w.e.f 09.09.2005. The earlier impediment that a female member is not entitled to seek partition of the suit schedule property, which is a dwelling house, now stands deleted by the said amendment. Since the lower appellate Court had allowed the First Appeal only on the basis of Section 23 of the Act, in view of it’s deletion, it is appropriate that the lower appellate Court is directed to consider the first appeal afresh. Therefore, the matter is remitted back to the lower appellate Court. The lower Appellate Court shall decide the matter and dispose of the first appeal afresh by taking into consideration the oral and documentary evidence led by the parties in accordance with law. The First Appellate Court shall endeavor to hear and decide the appeal afresh, preferably, within a period of six months from the date of receipt of a copy of this judgment. The appellate Court shall give opportunity to both sides to amend their pleadings, lead additional evidence, if so requested and found necessary, in view of the legislative amendment mentioned above. With the aforesaid directions, the Second Appeal is disposed of. No order as to costs. _________________________ VILAS V. AFZULPURKAR, J Date:24.06.2011. Note: Furnish CC within a week. B/O mrb