THE present appeal has arisen from a partition suit filed by plaintiff Ramsiya who is respondent No. 1. The suit was partly decreed on 14-12-2001 resulting into filing of this appeal. During the pendency of this appeal Section 23 has been omitted and section 6 of the Act has been amended by amendment Act of 2005. Since the appeal is continuation of the suit therefore I am of the view that even in pending proceedings the amended Section 6 would be applicable which would mean that present plaintiff is also entitled to sue for partition in respect of a dwelling house of a joint hindu family being a coparcener.(12.) THUS this appeal so far as it relates to the dwelling houses of Udaipura and rehma is disposed of by holding that plaintiff/respondent No. 1 is also having 1/4 share.
Prabhudayal Versus Ramsiya
(1.) THIS first appeal under section 96 of the Code of Civil Procedure 1908 has been preferred by defendant No. 1 assailing the judgment and decree dated 14th December 2001 passed by learned 1st additional District Judge Raisen in Civil suit No. 17-A/2000 partly decreeing the suit of plaintiff/respondent No. 1.(2.) THE facts leading to this first appeal are narrated in detail in paras 2 to 10 of the judgment passed by this Court on 10-4-2007 when this first appeal was decided and allowed in part in terms of para 25 of the judgment. Thereafter appellants who are the LRs of defendant No. 1 as well as plaintiff/respondent No. 1 filed review applications which were registered as M. C. C. No. 1393/ 2007 and MCC No. 1339/2007 respectively. Review application MCC No. 1393/2007 which was filed by legal representatives of defendant No. 1 was in regard to certain typographical errors and accordingly the said review application (MCC No. 1393/2007 was allowed on 8-1-2008 and disposed of with a direction mentioned in para 4 of the said order which reads thus :4. In this view of the matter since there is a typographical error in the judgment and the position is not disputed by learned senior counsel for the respondent/plaintiff it is hereby held that in Khasra Nos. 6 7 8 21 71/2 and 97 of village Rehma LRs of defendant No. 1 - Prabhudayal namely Smt. Saroj Shrivastava and others are having 3/ 4 share and plaintiff - Smt. Ramsiya is having 1/4th share. MCC No. 1393/2007 is
accordingly allowed and disposed of with no order as to cost. (3.) REVIEW application (MCC No. 1339/ 2007) which was filed by plaintiff Smt. Ramsiya was also allowed since the amended provision of Section 6 of Hindu Succession apt 1956 (in short the 'act') vis-a-vis to section 23 of the Act was not taken into consideration and the said review application of plaintiff Ramsiya was also allowed and this first appeal was kept open for a limited purpose only. It would be relevant to quote paras 8 9 and 10 of the order dated 8-1- 2008 passed in the review application which reads thus :8. This Court while deciding first appeal No. 45/2002 filed on behalf of LRs of defendant No. 1-Prabhudayal against appellant Ramsiya only considered Section 23 of the said Act and after testing the case on the anvil of Section 23 held that plaintiff cannot ask for partition in the dwelling houses as there is bar in Section 23 of the said Act. This Court did not take into consideration that what would be the impact of section 6 of the said Act as amended by amendment Act of 2005. I must fairly state that Shri Patel learned senior counsel for plaintiff addressed this Court while arguing the above said first appeal in respect to the provisions of Section 6 of the amendment Act of 2005 and therefore in view of the Division Bench decision of this Court jaswantpuri and others (supra) this review application filed on behalf of plaintiff rarnsiya is hereby allowed and that part of the judgment of First Appeal No. 45/2002 holding that plaintiff is not entitled to any share in the dwelling houses of village rehma and Udaipura is hereby set aside and the above said first appeal so far as it relates to the dispute in regard to dwelling houses of village Rehma and Talapura is hereby directed to be reheard and the said first appeal be listed for hearing on that limited point only. 9. Accordingly M. C. C. No. 1339/2007 is also hereby allowed with no order as to costs. 10. Registry is hereby directed to list F. A. No. 45/2002 for rehearing on a limited point only as indicated hereinabove. (4.) IN this manner for a limited purpose only that what is the impact of Section 6 of the Act as amended by Hindu Succession (Amendment) Act 2005 (for brevity 'the amended Act of 2005') on the dwelling houses of Udaipura and Rehma is to be taken into consideration. The appeal on all other points has already been decided on 8-1-2008.(9.) IN para 38 of the said decision the supreme Court further held that the position is well known that at common law the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it had never been passed and the statute must be considered as a law that never existed. The only exception is engrafted by the provisions of section 6 (1) of the General Clauses Act. If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings all actions must stop where the omission finds them and if final relief has not been granted before the omission goes into effect it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the saving applicable.(10.) ON going through the amended Section 6 as well as omitted Section 23 of the act there is no provision that pending proceedings shall continue under the old provision which has been omitted. On going through the Amendment Act of 2005 it is revealed that it does not contain the saving clause which would mean that omitted Section 23 of the Act is not saved for pending cases. Since there is no saving provision in favour of the pending proceedings in view of the decision of Supreme Court Kolhapur canesugar Works Ltd. (AIR 2000 SC 811) (supra) Section 6 of the General Clauses act has no application and therefore I am of the view that plaintiff/respondent No. 1 Smt. Ramsiya is having 1 /4th share in the dwelling house of Udaipura and village Rehma and is entitled to get those houses partitioned up to the extent of her share.(11.) THE present appeal has arisen from a partition suit filed by plaintiff Ramsiya who is respondent No. 1. The suit was partly decreed on 14-12-2001 resulting into filing of this appeal. During the pendency of this appeal Section 23 has been omitted and section 6 of the Act has been amended by amendment Act of 2005. Since the appeal is continuation of the suit therefore I am of the view that even in pending proceedings the amended Section 6 would be applicable which would mean that present plaintiff is also entitled to sue for partition in respect of a dwelling house of a joint hindu family being a coparcener.(12.) THUS this appeal so far as it relates to the dwelling houses of Udaipura and rehma is disposed of by holding that plaintiff/respondent No. 1 is also having 1/4 share. Appellants who are the heirs of defendant no. 1 Prabhudayal are entitled to 3/4th share in those houses. The cross-objections of plaintiff is allowed to that extent. The other points have already been decided in judgment dated 10-4-2007. The decree of the trial Court is accordingly modified.(13.) LOOKING to the facts and circumstances of the case the parties are directed to bear their own costs. Ord. er accordingly.
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