IMPORTANT POINT
The question as to applicability of Hindu Succession (Amendment) Act, 2005, to the cases of inheritance prior to enforcement of the Act referred to Larger Bench.

Anand Byrareddy, J.—This appeal is filed by the legal representatives of the plaintiff. The plaintiff is said to have died during the pendency of the suit, in the year 2008.

2. The suit was for partition and separate possession of the properties described in Schedules ‘A’ and ‘B’ to the suit. Defendants 1 to 3 were the brothers of the plaintiff and defendants 4 and 5 were the sister and sister-in-law, respectively, of the plaintiff. The parties were admittedly governed by the Hindu law. (Please see table on next page)

The plaintiff’s father had died 37 years prior to the suit. The mother of the plaintiff had died 5 years prior to the suit. It was claimed that the suit properties were joint family properties and were acquired out of joint family funds, though some items of the suit properties were shown in the name of the fifth defendant, the wife of the first defendant. The plaintiff is said to have issued a legal notice in the year 2000 claiming partition of the suit properties and to be put in possession of 1/5th share of the same. Since the defendants refused to comply, the suit was instituted.

The defendants 1 to 3 and 5 are said to have filed written statement to contend that only items 1 and 2 of Schedule A and items 3 and 4 of Schedule B were joint family properties and that the other items were the self-acquired properties of the defendants, as detailed therein. Further, it was denied that the plaintiff was entitled to 1/5th share in the suit properties and that she was at best entitled to 1/20th share of three items of the four joint family properties mentioned above. It was contended that she was not entitled to a share in item 3 of Schedule B properties.

3. The Trial Court had framed the following issues on the above pleadings:

“1. Whether the plaintiff proves that all suit schedule properties are joint family properties?

2. Whether the defendants prove that the suit schedule properties items 4 and 12 are self-acquired properties of 1st defendant?

3. Whether the defendants prove that the suit schedule items 3, 9, 10, 14, 15, 17, 19, 20 and 25 in ‘A’ Schedule properties are self-acquired properties of 2nd defendant?

4. Whether the defendants prove that suit schedule properties items 5, 7, 8, 11, 13, 16, 21, 22, 23 and 24 are self-acquired properties of 3rd defendant?

5. Whether defendants prove that suit schedule properties items 6 and 18 are self-acquired properties of 5th defendant?

6. Whether the defendants prove that the plaintiff is not entitled for share in item 3 of ‘B’ schedule properties?

7. Whether the defendants prove that as on the date of death of B. Siddalingappa his debts were to the tune of Rs. 25,000-/?

8. Whether the suit is bad for non-joinder of necessary parties?

9. Whether the suit is bad for partial partition?

10. Whether the plaintiff has valued the suit property and paid the sufficient Court fee?

11. Whether the plaintiff is entitled for one-fifth share?”

The Court below had answered the above issues 1, 6 and 10 in the affirmative and decreed that the plaintiff was entitled to 1/20th share in Schedule A properties and items 1, 2 and 4 of Schedule B properties.

The Court below has held that the plaintiff was not entitled to a share in item 3 of Schedule B as it is the residential house of the family and that in terms of Section 23 of the Hindu Succession Act, 1956 (hereinafter referred to as the ‘HS Act’, for brevity), she was not entitled to a share in the dwelling house. Though the section had been deleted by Act No. 39 of 2005, it was held that the deletion was prospective in effect, in the view of the Trial Court, and that the plaintiff could not claim the benefit of the deletion.

Further, the Trial Court has held that it is the unamended Section 6 of the HS Act, which would be applicable to the case and the shares of the parties were determined on the basis of a notional partition, on the reasoning that the rights of the parties and the extent of their share stood determined on the dea