2009 Supreme(SC) 687

Supreme Court of India
THE HONOURABLE MR. JUSTICE S.B. SINHA & THE HONOURABLE DR. JUSTICE MUKUNDAKAM SHARMA
G. Sekar
Versus
Geetha & Others
Civil Appeal No. 2535 of 2009 [Arising Out of SLP (Civil) No. 9221 of 2007]
Decided on : 15-04-2009

IMPORTANT POINTS
Title in self acquired property devolving in equal share amongst son and daughters not subject to restrictive right u/s 23, except in case of a dwelling house possessed by a male heir. Daughters had a right to maintain a suit for partition.
Report of Law Commission may be looked into for construction of a statute, but it cannot prevail over a clear and unambiguous provision.
Operation of the Hindu Succession (Amendment) Act 2005 is prospective in nature.
With the omission of section 23 the restriction on daughters seeking partition must be held to have been removed.
In the age of gender equality to treat sons and daughters differently is not permissible.
A concurrent finding of Will not having been proved after considering the various aspects such as preparation of the Will, attestation thereof as also suspicious circumstances surrounding the same cannot be disturbed.

Headnote:(a) Hindu Succession Act, 1956 – Section 8 and 23 – Property of Govinda Singh – Not coparcenary, but self acquired – Devolving upon all his heirs son and daughters in equal share – Title so devolved not subject to restrictive right u/s 23, except in case of a dwelling house possessed by a male heir – Daughters therefore had a right to maintain a suit for partition. (Para 17)

       (b) Hindu Succession Act, 1956 – Section 23 – Right of residence in dwelling house – Does not depend upon date of filing of suit – Can be enforced even subsequently. (Para 18)

       (c) Interpretation of statute – Report of Law Commission – May be looked into for construction of a statute – It cannot prevail a clear and unambiguous provision. (Para 19)

       (d) Hindu Succession Act, 1956 – Section 8 – Amendment Act, 2005 – Section 3 – Operation of Act 2005 is prospective in nature. (Para 23)

       (1966) 2 SCR 626 – Referred

       (e) Administration of Justice – Amendment of statute – Pending proceedings – Effect – Would depend upon the nature as also text and context of the statute – Hindu Succession Act, 1956 – Section 23 – Restricted rights – Rights u/s 23 cannot be said to be continuing after Amendment Act 2005 – With the omission of section 23 the restriction on daughters seeking partition must be held to have been removed. (Para 24, 28)

       (1996) 3 SCC 644 – Relied upon

       (2006) 2 SCC 740; AIR 1960 SC 794; AIR 1961 SC 29 – Referred

       AIR 1962 SC 945; (2000) 2 SCC 536 – Distinguished

       (f) Administration of Justice – Amendment of statute – Prospective or retrospective nature of amendment – Will depend upon its construction – It is merely a disabling provision – Right of the son to keep the right of the daughters of the last male owner to seek for partition of a dwelling house – Not a right of enduring in nature – Not an accrued right or a vested right – Can be taken away by operation of the statute and/or by removing the disablement clause. (Para 26)

       2008 (8) SCALE 475; (2004) 4 SCC 1; 2008 (11) SCALE 42; 2008 AIR SCW 295; (2007) 5 SCC 447 – Relied upon

       (1988) 4 SCC 284; (2001) 8 SCC 24 – Distinguished

       (g) Constitution of India – Article 14 and 16 – Gender equality – To treat sons and daughters differently – Not permissible. (Para 29)

       AIR 2008 SC 663 – Relied upon

       (2004) 18 BHRC 52 – Referred

       (h) Hindu Succession Act, 1956 – Section 23 – Suit for partition filed when section 23 was operational – After omission of the same, respondents can file a fresh suit. (Para 29)

       (h) Testamentary law – Will – Proving of – Courts below considering the various aspects such as preparation of the Will, attestation thereof as also suspicious circumstances surrounding the same – Concurrently holding the Will not to be proved – No reason to hold otherwise. (Para 30, 31)

       Facts of the case:

       The property in suit was owned by one Govinda Singh. He is purported to have executed a Will in favour of his son, the appellant herein on 29.11.1995. His wife Sakunthala Bai predeceased him. The said Govinda Singh died on 9.01.1996 leaving behind the appellant (original defendant No. 1) and four daughters, viz., Geetha and Vijaya (plaintiffs) and Shanthi and Uma (original defendant Nos. 2 and 3).

       On the premise that Govinda Singh died intestate and as disputes and differences arose between the plaintiffs and the defendants as regards enjoyment of the property, a suit for partition was filed in the High Court.

       The learned Single Judge held that the appellant could not prove due execution of the Will as several suspicious circumstances surrounded the same.

       It was furthermore held that having regard to the omission of Section 23 of the Act and in view of the fact that even the Defendant No. 4 in his written statement asked for partition of the property, Section 23 of the Act would not stand in the way of plaintiffs’ suit for partition. LPA was dismissed.

       Finding of the Court:

       There is no reason to differ from the concurrent findings of the courts below.

       Result:

       Appeal dismissed.