Hon’ble Mahendra Dayal, J.—Heard learned counsel for the parties and perused the record.

The short question involved in this second appeal is as to whether the provisions of Hindu Succession (Amendment) Act, 2005 can be given effect to in the pending proceedings ?

2. The brief facts giving rise to this second appeal are that the plaintiff-appellants have filed a suit for partition on the ground that the appellant No. 1 being the daughter of late Sri Dargahi Lal and the appellants No. 2 and 3 being the daughter’s daughter (grand daughter) of late Sri Dargahi Lal had inherited the undivided share in the immovable property left by Sri Dargahi Lal. The suit was contested by the respondents, who are none other than widow and son of late Sri Dargahi Lal. The main ground of challenge was that the appellants being the daughter and grand-daughter of late Sri Dargahi Lal could not claim partition of their share as provided under Section 23 of the Hindu Succession Act, 1956. Section 23 as it stood prior to the Amendment Act, 2005 is reproduced as under :

“23. Special provision respecting dwelling houses :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 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.”

3. A bare perusal of provisions of Section 23 reflects that the right of any female to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein. Thus, the female heir although having share in the house, could not claim partition unless a male hair chooses to seek partition of his respective share. Meaning thereby that if a male heir files a suit for partition of his share, the female heir will also be entitled to seek relief of division of her share in the same suit. The learned trial Court dismissed the suit filed by the appellants by the judgment and decree dated 18.8.1999. Feeling aggrieved by the aforesaid judgment and decree, the appellants filed first appeal being Regular Civil Appeal No. 161 of 1999, which was also dismissed by Second Additional District Judge, Faizabad vide judgment and order dated 24.1.2002. Being dissatisfied with both the aforesaid judgments, the appellants have preferred this second appeal which has also admitted for hearing by the order dated 15.2.2002.

4. Learned counsel for the appellants has submitted that during the pendency of the second appeal, the Hindu Succession (Amendment) Act, 2005 came into force and the provisions of Section 23 of the Hindu Succession Act were omitted. The effect of omission of Section 23 would be that now female heir will also be entitled to claim division of her share irrespective of the fact whether the male heir files a suit for partition or not ? The submission on behalf of the appellants is that since the second appeal is a continuation of the suit filed by the appellants, therefore, the Amendment Act, 2005 referred to above will be fully applicable in the present case and the matter should be remitted back to the trial Court concerned for decision afresh in view of the bar created by Section 23 having being removed by the Amendment Act, 2005.

5. Learned counsel for the respondent has on the other hand submitted that the Hindu Succession (Amendment) Act, 2005 came into force w.e.f. September 9, 2005 when the original sui