The recent amendment to the Hindu Succession Act, deleting Section 23, was deemed to entitle the plaintiff to seek partition of the dwelling house property despite the lower court's dismissal based on Section 23.

This appeal is focussed as against the judgment and decree dated 26.06.1997, passed by the learned V Addl. City Civil Judge, Madras in O.S.No.11886 of 1996. For the sake of convenience, the parties are referred to here under according to their litigative status before the trial Court.

2. Niggard and bereft of details, the case of the plaintiff as stood exposited from the plaint could be portrayed thus:

One R. Rajagopal had seven children, so to say, the plaintiff and defendants 2 to 7. D1 is the widow of deceased Rajagopal who died in the year 1992 leaving behind the plaintiff and the defendants as his legal heirs. The defendants 1 to 3 entered appearance and filed their written statement. Others remained ex parte. The trial Court framed the relevant issues.

3. On the side of the plaintiff P.W.1 was examined and Exs.A1 was marked. On the side of the defendants D.W.1 was examined and no exhibit was marked.

4. Ultimately the trial Court dismissed the suit for partition on the sole ground that the plaintiff being a female member cannot ask for partition of a dwelling house in the occupation of a male heir as per Section 23 of the Hindu Succession Act. However, the lower Court ordered accounts to be furnished to the plaintiff relating to the income derived from the house, as a portion of the house was rented out to tenants. Being aggrieved by and dissatisfied with the judgment of the lower Court, this appeal has been filed on various grounds, the gist and kernel of them would be to the effect that the trial Court should have ordered partition as the true purport of Section 23 of the Hindu Succession Act would not be a bar for seeking partition in the facts and circumstances of the case, as part of the property was already let out to the tenants and it is not in the exclusive possession of the male members.

5. Despite notice to the respondents, no one appeared.

6. At the hearing, the learned counsel for the appellant appropriately and appositely, correctly and convincingly drew the attention of this Court to the recent amendment to the Hindu Succession (Amendment) Act, 2005 (39 of 2005) deleting Section 23 of the Act. No doubt the amendment Act shall have prospective effect, but practically if the matter is viewed, it is clear that as per the Hindu Succession (Amendment) Act, 2005 the plaintiff is entitled to partition of the dwelling house property also and such an amendment has come into vogue during the pendency of the appeal. The appeal is deemed to be in continuation of the suit proceedings. It would be a mere hyper technicality if the appellant/plaintiff is driven to the extent of filing a fresh suit invoking the said recent Hindu Succession (Amendment) Act 2005 (39 of 2005) and in such a case, I am having no hesitation in construing that in this case the erstwhile Section 23 is having no application and accordingly partition could be ordered in respect of the 1/8th share of the plaintiff.

7. Accordingly, preliminary decree is ordered to be passed and to that effect, that portion of the judgment and decree of the lower Court in dismissing the first prayer of the plaintiff in the suit shall stand set aside. It is quite obvious and apparent that the said Rajagopal died leaving behind his seven children and his widow and as such, each one is entitled to 1/8th share. Accordingly, this appeal is disposed of. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.