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HINDU SUCCESSION ACT – Section 23 – Special provision relating to dwelling houses – Omission of by Hindu Succession (Amendment) Act, 2005 – Effect of – Constitution of India, Article 136. Will – Proof of – Concurrent finding that it was validly proved – No reason to differ with the same. CONSTRUCTION OF STATUTES: Report of the Law Commission may be looked into for the purpose of construction of a statute – But the same would not prevail over a clear and unambiguous provision. In this appeal, the question involved was as to the effect of the amendment made to Hindu Succession Act, 1956 by the Amending Act, 2005 thereby omitting Section 23 of the Hindu Succession Act, which was a special provision relating to dwelling houses.= Dismissing the appeal, the Court HELD:1. Section 23 of the Hindu Succession Act has been omitted so as to remove the disability on female heirs contained in that Section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparacenary property is concerned has been sought to be removed, this Court fails to understand as to how such a disability could be allowed to be retained in the statute book in respect of the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto. Restrictions imposed on a right must be construed strictly. In the context of the restrictive right as contained in Section 23 of the Act, it must be held that such restriction was to be put in operation only at the time of partition of the property by metes and bounds, as grant of a preliminary decree would be dependant on the right of a co-sharer in the joint property. Concededly a preliminary decree could be passed declaring each co-sharer to be entitled to 1/5th share therein in terms of the provisions contained in Section 8 of the Act. 1/5th share in each co-sharer upon death of the predecessor-in-interest of the parties is absolute. They cannot be divested of the said right as the restriction in enjoyment of right by seeking partition by metes and bounds is removed by reason of Section 3 of the 2005 Act. Where a partition has not taken place, Sub-section (5) of Section 3 shall apply. [Para 22] [1019-B-F] `174th Report of the Law Commission’, referred to. 2.1. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. The operation of the said statute is no doubt prospective in nature. [Paras 22 and 23] [1020-F- G] 2.2. It is now a well-settled principle of law that the question as to whether a statute having prospective operation will affect the pending proceeding would depend upon the nature as also text and context of the statute. Whether a litigant has obtained a vested right as on the date of institution of the suit which is sought to be taken away by operation of a subsequent statute will be a question which must be posed and answered. [Para 24] [1021-A-B] 3. It is trite that although omission of a provision operates as an amendment to the statute but then Section 6 of the General Clauses Act, could have been applied provided it takes away somebody’s vested right. Restrictive right contained in Section 23 of the Act, cannot be held to remain continuing despite the 2005 Act. [Para 25] [1021-C-D] Eramma v. Verrupanna AND OTHERS (1966) 2 SCR 626; The State of Orissa v. Bhupendra Kumar Bose AND OTHERS AIR 1962 SC 945; S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India AND ANOTHER (2006) 2 SCC 740; Brihan Maharashtra Sugar Syndicate Ltd. v. Janardan Ramchandra Kulkarni AND OTHERS AIR 1960 SC 794; Raja Narayanlal Bansilal v. Maneck Phiroz Mistry AIR 1961 SC 29; State of Punjab AND OTHERS v. Bhajan Kaur AND OTHERS 2008 (8) SCALE 475; Vishwant Kumar v. Madan Lal Sharma AND ANOTHER (2004) 4 SCC 1; Subodh S. Salaskar v. Jayprakash M. Shah AND ANOTHER 2008 (11) SCALE 42; Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector AND Etio AND OTHERS (2007) 5 SCC 447; Atma Ram Mittal v. Ishwar Singh Punia (1988) 4 SCC 284 and M/s Kesho Ram AND Co. AND OTHERS etc. v. Union of India AND OTHERS (1989) 3 SCC 151, held inapplicable. Kolhapur Canesugar Works Ltd. AND ANOTHER v. Union of India AND OTHERS (2000) 2 SCC 536, referred to. 4.1. Institution of a suit is not barred. What is barred is actual partition by metes and bounds. [Para 26] [1031-A] 4.2. A right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. Indisputably, when there are two male heirs, at the option of one, partition of a dwelling house is also permissible. [Para 28] [1033-C-D] 4.3. In terms of Articles 14 and 15 of the Constitution of India, the female heirs, subject to the statutory rule operating in that field, are required to be treated equally to that of the male heirs. Gender equality is recognized by the world community in general in the human rights regime. [Para 29] [1033-F] Sheela Devi AND OTHERS v. Lal Chand AND ANOTHER (2006) 8 SCC 581, held inapplicable. Shyam Sunder AND OTHERS v. Ram Kumar AND ANOTHER (2001) 8 SCC 24; Narashimaha Murthy v. Susheelabai (Smt) and Others (1996) 3 SCC 644 and Anuj Garg AND OTHERS v. Hotel Association of India AND OTHERS AIR 2008 SC 663, referred to. Bhe AND OTHERS v. The Magistrate, Khayelisha AND OTHERS (2004) 18 BHRC 52 (South African Constitutional Court), referred to. 5. It is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution of India as the fact remains that Section 23 of the Hindu Succession Act as it stood was to be applicable on the date of the institution of the suit. Respondents may file a new suit and obtain a decree for partition. [Para 29] [1034-E-F] 6. Both the courts below have considered all the essential ingredients of proof of Will, viz., preparation of the Will, attestation thereof as also suspicious circumstances surrounding the same. They have arrived at a concurrent finding that the Will was not validly proved. There is no reason to differ therewith. [Para 31] [1037-C-D] Case Law Reference: (1966) 2 SCR 626 held inapplicable Para 22 AIR 1962 SC 945 held inapplicable Para 25 (2006) 2 SCC 740 held inapplicable Para 25 AIR 1960 SC 794 held inapplicable Para 25 AIR 1961 SC 29 held inapplicable Para 25 2008 (8) SCALE 475 held inapplicable Para 25 (2000) 2 SCC 536 referred to Para 25 (2004) 4 SCC 1 held inapplicable Para 26 2008 (11) SCALE 42 held inapplicable Para 26 (2007) 5 SCC 447 held inapplicable Para 26 (1988) 4 SCC 284 held inapplicable Para 26 (1989) 3 SCC 151 held inapplicable Para 26 (2006) 8 SCC 581 held inapplicable Para 26 (2001) 8 SCC 24 referred to Para 26 (1996) 3 SCC 644 referred to Para 27 (2004) 18 BHRC 52 referred to Para 29 AIR 2008 SC 663 referred to Para 29 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2535 of 2009. From the Judgment AND Order dated 29.01.2007 of the High Court of Judicature at Madras in O.S.A. Nos.196 and 197 of 2001. K.V. Viswanathan, P.B. Suresh and Vipin Nair (for Temple Law Firm) for the Appellant. K. Kamamoorthy, B.P. Balaji, N. Shoba, Sriram J. Thalapathy and Adhi Venkataraman for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2535 OF 2009 [Arising out of SLP (Civil) No. 9221 of 2007] G. Sekar …Appellant Versus Geetha & Ors. …Respondents J U D G M E N T S.B. SINHA, J : 1. Leave granted. 2. Effect of the amendment in the … Continue reading
Section 41(h) of Specific Relief Act= Section 41(h) provides that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding. The relief of specific performance is equally efficacious, rather more efficacious, remedy than the suit for injunction simplicitor.= when remedy of a suit for specific performance is available to the plaintiff, he :8: 616.10.ao.j cannot file a suit for injunction simplicitor nor he can claim temporary injunction in pending suit for injunction simplicitor. 10 In the present case the plaintiff could have filed suit for specific performance of the contract as soon as he found that defendant no.1 had repudiated contract and was trying to dispose of the property to somebody else. The plaintiff filed the suit on the basis of the agreement allegedly executed by defendant no.1 in his favour and that agreement shows that consent terms in the earlier suit were accepted and defendant no.1 was entitled to retain and dispose of the premises. The defendant no.1 denies execution of this agreement. When pleadings of the plaintiffs show that there was no impediment in filing suit for specific performance, now he cannot say that because of the earlier suit he could not file suit for specific performance. These aspects were not considered by the trial court while granting temporary injunction in favour of the plaintiff. 11 In view of the above circumstances, as the suit for injunction simplicitor itself is not tenable in view of Section 41(h) of the Specific Relief Act, the plaintiff is also not entitled to temporary injunction pending the suit.
:1: 616.10.ao.j ata IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.616 OF 2010 IN NOTICE OF MOTION NO. Ex.2 OF 2008 FROM B. C. C. C. Suit No. 1602 OF 2008 WITH CIVIL APPLICATION NO.193 OF 2012 Mr. Abdul Wahid Residing at Room No.22,1st floor, Ramzan Building, Hans Road, Neara National Diary, Byculla(W), Mumbai .. Appellant Vs. 1.Shri. Manish Hansraj Chandaria Residing at Flat No.8,3rd Floor, Link Corner, Residential and Nonresidential Premises Cooperative Society(Prop.)Ltd, Plot No. 231, T. P. S. III, Linking Road, Bandra(W), Mumbai 2. Smt. Nasreen wd/o Yusuf Ibrahim Shaikh Residing at Flat No.16 and 17, Building No. 185, Nishant Pada,Dongri, Mumbai .. Respondents :2: 616.10.ao.j Mr. Jagdish N. Jayale,for the Appellant/Applicant.. Dr. Amod S. Tilak, for the Respondent No.1. CORAM : J. H. BHATIA,J. DATE : FEBRUARY 17, 2012 JUDGMENT 1 Rule. Rule made returnable forthwith. With the consent of the learned counsel for both the parties, the appeal is heard forthwith. 2 The appeal is preferred by the original defendants challenging the order dated 21.04.2010 passed by the learned Judge, City Civil Court in Notice of Motion whereby … Continue reading
Section 4 of the Act reads as under: “4. Fixation of Fair Rent. – (1) The Controller shall on application made by the tenant or the landlord of a building and after holding such enquiry as he thinks fit, fix the fair rent for such building in accordance with the principles set out in the following sub-sections: (2) The fair rent for any residential building shall be nine per cent gross return per annum on the total cost of such building. 3) The fair rent for any non-residential building shall be twelve per cent gross return per annum on the total cost of such building. 4) The total cost referred to in sub-section (2) and sub- Section (3) shall consist of the market value of the site in which the building is constructed, the cost of construction of the building and the cost of provision of anyone or more of the amenities specified in schedule 1 as on the date of application for fixation of fair rent. Provided that while calculating the market value of the site in which the building is constructed, the Controller shall take into account only that portion of the site on which the building is constructed and of a portion upto fifty per cent, thereof of the vacant land, if any, appurtenant to such building the excess portion of the vacant land, being treated as amenity; Provided further that the cost of provision of amenities specified in Schedule 1 shall not exceed- i) in the case of any residential building, fifteen per cent; and ii) in the case of any non-residential building, twenty- five per cent, of the cost of site in which the building is constructed and the cost of construction of the building as determined under this section.” From the principles set out in sub-Sections (2) to (4) of Section 4 it is apparent that market value of the site on which the building is constructed is an important factor to be taken into consideration for fixing the fair rent of the building. 15. Reverting to the facts of this case, we find that the appellants are tenant of three premises of which the respondents are the landlords. Out of the three premises, the first premises is a non-residential building constructed on land bearing D.No.23, T.T.K. Road, Chennai relating to which fair rent has already been determined by the Rent Controller in RCOP NO. 1046 of 1994. In the said case, the Rent Controller (Small Causes Court), Chennai by judgment dated 28.6.1996 determined the market fair rent on accepting the market value of the land at Rs.25 lakhs per ground. Against the said judgment, appeals have been preferred by both the appellant-tenants and the respondent-landlords but no order of stay has been passed by the appellate authority; matter is still pending. With regard to rest two rented premises, the building are situated on the adjacent land bearing D.No. 22, TTK Road, Chennai which are the subject matter of dispute. The mere fact that the appeal filed by appellants and respondents remain pending for disposal for more than 8 years and during the pendency the respondent-landlord filed two petitions under Section 4 of the Act before the Rent Controller, cannot be made a ground to deprive the appellants-tenants of their legitimate right to rely on a market value of adjacent land (D.No. 23, TTK Road, Chennai) already determined by the Rent Controller. Even if the appeals are dismissed by the appellate authority, the market value of the adjacent land as determined will remain Rs. 25 lakhs per ground. In the cases in hand, it was not open to the appellate authority to ignore the market value of the adjacent land already determined on the ground of pendency of an appeal. The High Court failed to appreciate the aforesaid fact though it was a fit case for the High Court to interfere under Article 227 of the Constitution of India. 16. In the result, the appeals are allowed in part; the impugned judgments of the Appellate Authority dated 14.10.2006 as affirmed by the High Court, so far as it relates to “market value of the land” is concerned, are set aside; Appeals, RCOP No. 1393, 1394, 1404 and 1405 of 2004 are remitted to the appellate authority (learned VIIIth Judge, Court of ‘Small Causes Court’, Chennai) for determination of limited issue relating to the market value of the land on which the building premises is situated (D.No. 22, TTK Road, Chennai-18) taking into consideration the evidence on record including Exh.A-4, Exh.A-9 and the market value of the adjacent land as was determined by the Rent Controller in RCOP No. 1046 of 1994, etc., preferably within six months. 17. So far as the findings of the appellate authority with respect to ‘classification of building’, ‘depreciation’, ‘plinth area’, ‘construction charges’ and of basic amenities of the petition building as affirmed by the High Court are not interfered with by this Court and they are upheld. There shall be no order as to costs.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 5218-22 OF 2012 (ARISING OUT OF SLP(C) NO.20550-20554 OF 2008) V.S. KANODIA ETC. ETC. … APPELLANTS VERSUS A.L.MUTHU (D) THR. LRS. & ANR. … RESPONDENTS J U D G M E N T SUDHANSU JYOTI MUKHOPADHAYA,J. 1. Leave granted. These appeals have … Continue reading
The issue regarding filing of petition before the High Court after having availed first revision petition before the Court of Sessions has come up before the Supreme Court and this Court repeatedly. While laying that section 397(3) Cr.P.C. laid statutory bar of second revision petition, the courts have held that High Court did enjoy inherent power under section 482 Cr.P.C. as well to entertain petitions even in those cases. But, that power was to be exercised sparingly and with great caution, particularly, when the person approaching the High Court has already availed remedy of first revision in the Sessions Court. This was not that in every case the person aggrieved of the order of the first revision court would have the right to be heard by the High Court to assail the same order which was the subject matter of the revision before Sessions Court.=It is settled proposition of law that at the stage of framing of charges it is not obligatory for the Judge of trial to consider any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording of final guilt or otherwise of accused, is not exactly to be applied at the stage of deciding the matter under section 227 and 228 of Cr.P.C. Further at this stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, leading the court to think that there is ground for presuming that the accused has committed an offence is enough.
Crl.MCNo.583/2009 Page 1 of 11 * THE HIGH COURT OF DELHI AT NEW DELHI + Crl.MC No.583/2009 Date of Decision: 10.02.2012 Dy. Commissioner of Income Tax …… Petitioner Through: Mr. Sanjeev Rajpal and Mr. Karan Chaudhan, Advocate Versus General Sales Pvt. Ltd. & Ors. …… Respondent Through: Mr. Harish Gulati & Mr. Anindya Malhotra, Advocates … Continue reading
Indian Partnership Act, 1932; Section 32: Partnership firm-Liabilities of retiring partners against third party-Held: In the absence of an agreement between third party, new firm and retiring partners discharging retiring partners from liabilities or notice thereof by the retiring partners, their liabilities to third party continue. Creditor adopting reconstituted firm/new firm as debtor-Rights against the old firm-Held: Such an act of adoption of new firm as debtor does not deprive the creditor enforcing his rights against the old firm particularly when there existed no fresh agreement between him and the new firm-In the facts and circumstances of the case priori-assumption that creditor entered into an agreement to discharge retiring partner from liability does not follow. Words and Phrases: `Priori-assumption’-Meaning and applicability of Plaintiff-appellant, a Bank had filed two suits against the respondent- firms for recovery of certain amount borrowed by the firm from the Bank with interest. The firm was dissolved and taken over by one of the partners. Trial Court decreed the suit against the firm and the owner of the new firm. Appellant-Bank filed appeals praying for decree against all the partners of the old firm. The High Court affirmed the decree of the trial Court. Hence the present appeals. It was contended for the appellant-Bank that the loan was availed of by all the partners after jointly executing the requisite documents for getting the loan amount; that dissolution of the firm would not affect the liabilities of partners as inter se agreement between them was not binding on the appellant-bank; and that in view of provisions in the Partnership Act the retiring partners of the firm could not escape from their liabilities against the third party. On behalf of the respondents/partners it was submitted that since notice of dissolution of the firm was given to the appellant-Bank, retiring partners should not be held liable to discharge liabilities of the firm. =Allowing the appeals, the Court HELD: 1.1. Under sub-section (2) of Section 32 of the Indian Partnership Act the liability of the retiring partner as against third party would be discharged only if there is an agreement made by the retiring partner, with the third party, and the partners of the reconstituted firm. Of course, an agreement could be implied by the course of dealing between such third party and the reconstituted firm, after retirement of a partner. In the instant case, there was no agreement between the appellant-Bank and respondent nos.2 and 3 as regards their liability in respect of the dissolved firm. There is also no evidence to show that there was an implied contract between the appellant and respondent no.4, owner of the reconstituted firm, who allegedly agreed to discharge the liabilities of respondent nos.2 and 3. It is also pertinent to note that there was no public notice under sub-Section (3) of Section 32 of the Indian Partnership Act by respondent nos. 2 and 3. Even if there was a public notice, it may not alter the position as the alleged liabilities of respondent nos. 2 and 3 were incurred by them prior to the dissolution of the firm. [217-G, H; 218-A, B] Thummala Rama Rao and Ors v. Chodagam Venkateswara Rao and Ors., AIR (1963) A.P. 154, distinguished. Lindley and Banks on Partnership (Sixth Edition) page 358, referred to. 1.2. There is no priori presumption to the effect that the creditors of a firm do on the retirement of a partner, enter into an agreement to discharge him from liability. An adoption by the creditor of the new firm as his debtor does not by any means necessarily deprive him of his rights against the old firm especially when the creditor is not a party to the arrangement and then there is no fresh agreement between the creditor and the newly constituted firm. After the creditor has taken a new security for a debt from a continuing partner, it may be a strong evidence of an intention to look only the continuing partner for the payment due from the firm, it has long been recognized that partnership is not a species of joint tendency and that, in the absence of some contrary agreement, there is no survivorship as between partners, at least so far as it concerns their beneficial interests in the partnership assets. Having due regard to these principles, the High Court erred in confirming the judgment passed by the trial court and the plaintiff appellant had every right to proceed against all the defendants in the suit. Hence, the impugned decree is modified to the extent that there shall be a decree against all the respondents in both the suits. [219-D-G] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1337 of 1995. From the Judgment and Order dated 7.3.1994 of the Karnataka High Court in R.F.A. No. 631 of 1987. WITH C.A. No. 3765 of 1995. =2003 AIR 1311, 2003(1 )Suppl.SCR213 , 2003(6 )SCC265 , 2003(4 )SCALE648 , 2003(4 )JT578
CASE NO.: Appeal (crl.) 11 of 2000 PETITIONER: Karamjit Singh RESPONDENT: State (Delhi Administration) DATE OF JUDGMENT: 26/03/2003 BENCH: S. Rajendra Babu & G.P. Mathur JUDGMENT: JUDGMENT G.P. Mathur, J. Karamjit Singh has preferred this appeal against the judgment and order dated 2.2.1996 of the Designated Judge, New Delhi in Sessions Case No.140 of 1991, … Continue reading
HINDU SUCCESSION ACT – Section 23 – Special provision relating to dwelling houses – Omission of by Hindu Succession (Amendment) Act, 2005 – Effect of – Constitution of India, Article 136. Will – Proof of – Concurrent finding that it was validly proved – No reason to differ with the same. CONSTRUCTION OF STATUTES: Report of the Law Commission may be looked into for the purpose of construction of a statute – But the same would not prevail over a clear and unambiguous provision. In this appeal, the question involved was as to the effect of the amendment made to Hindu Succession Act, 1956 by the Amending Act, 2005 thereby omitting Section 23 of the Hindu Succession Act, which was a special provision relating to dwelling houses. -Dismissing the appeal, the Court HELD:1. Section 23 of the Hindu Succession Act has been omitted so as to remove the disability on female heirs contained in that Section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparacenary property is concerned has been sought to be removed, this Court fails to understand as to how such a disability could be allowed to be retained in the statute book in respect of the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto. Restrictions imposed on a right must be construed strictly. In the context of the restrictive right as contained in Section 23 of the Act, it must be held that such restriction was to be put in operation only at the time of partition of the property by metes and bounds, as grant of a preliminary decree would be dependant on the right of a co-sharer in the joint property. Concededly a preliminary decree could be passed declaring each co-sharer to be entitled to 1/5th share therein in terms of the provisions contained in Section 8 of the Act. 1/5th share in each co-sharer upon death of the predecessor-in-interest of the parties is absolute. They cannot be divested of the said right as the restriction in enjoyment of right by seeking partition by metes and bounds is removed by reason of Section 3 of the 2005 Act. Where a partition has not taken place, Sub-section (5) of Section 3 shall apply. [Para 22] [1019-B-F] `174th Report of the Law Commission’, referred to. 2.1. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. The operation of the said statute is no doubt prospective in nature. [Paras 22 and 23] [1020-F- G] 2.2. It is now a well-settled principle of law that the question as to whether a statute having prospective operation will affect the pending proceeding would depend upon the nature as also text and context of the statute. Whether a litigant has obtained a vested right as on the date of institution of the suit which is sought to be taken away by operation of a subsequent statute will be a question which must be posed and answered. [Para 24] [1021-A-B] 3. It is trite that although omission of a provision operates as an amendment to the statute but then Section 6 of the General Clauses Act, could have been applied provided it takes away somebody’s vested right. Restrictive right contained in Section 23 of the Act, cannot be held to remain continuing despite the 2005 Act. [Para 25] [1021-C-D] Eramma v. Verrupanna & Ors. (1966) 2 SCR 626; The State of Orissa v. Bhupendra Kumar Bose & ors. AIR 1962 SC 945; S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India & Anr. (2006) 2 SCC 740; Brihan Maharashtra Sugar Syndicate Ltd. v. Janardan Ramchandra Kulkarni & ors. AIR 1960 SC 794; Raja Narayanlal Bansilal v. Maneck Phiroz Mistry AIR 1961 SC 29; State of Punjab & Ors. v. Bhajan Kaur & Ors. 2008 (8) SCALE 475; Vishwant Kumar v. Madan Lal Sharma & Anr. (2004) 4 SCC 1; Subodh S. Salaskar v. Jayprakash M. Shah & Anr. 2008 (11) SCALE 42; Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & Etio & Ors. (2007) 5 SCC 447; Atma Ram Mittal v. Ishwar Singh Punia (1988) 4 SCC 284 and M/s Kesho Ram & Co. & ors. etc. v. Union of India & Ors. (1989) 3 SCC 151, held inapplicable. Kolhapur Canesugar Works Ltd. & Anr. v. Union of India & Ors. (2000) 2 SCC 536, referred to. 4.1. Institution of a suit is not barred. What is barred is actual partition by metes and bounds. [Para 26] [1031-A] 4.2. A right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. Indisputably, when there are two male heirs, at the option of one, partition of a dwelling house is also permissible. [Para 28] [1033-C-D] 4.3. In terms of Articles 14 and 15 of the Constitution of India, the female heirs, subject to the statutory rule operating in that field, are required to be treated equally to that of the male heirs. Gender equality is recognized by the world community in general in the human rights regime. [Para 29] [1033-F] Sheela Devi & Ors. v. Lal Chand & Anr. (2006) 8 SCC 581, held inapplicable. Shyam Sunder & Ors. v. Ram Kumar & Anr. (2001) 8 SCC 24; Narashimaha Murthy v. Susheelabai (Smt) and Others (1996) 3 SCC 644 and Anuj Garg & Ors. v. Hotel Association of India & ors. AIR 2008 SC 663, referred to. Bhe & Ors. v. The Magistrate, Khayelisha & Ors. (2004) 18 BHRC 52 (South African Constitutional Court), referred to. 5. It is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution of India as the fact remains that Section 23 of the Hindu Succession Act as it stood was to be applicable on the date of the institution of the suit. Respondents may file a new suit and obtain a decree for partition. [Para 29] [1034-E-F] 6. Both the courts below have considered all the essential ingredients of proof of Will, viz., preparation of the Will, attestation thereof as also suspicious circumstances surrounding the same. They have arrived at a concurrent finding that the Will was not validly proved. There is no reason to differ therewith. [Para 31] [1037-C-D] Case Law Reference: (1966) 2 SCR 626 held inapplicable Para 22 AIR 1962 SC 945 held inapplicable Para 25 (2006) 2 SCC 740 held inapplicable Para 25 AIR 1960 SC 794 held inapplicable Para 25 AIR 1961 SC 29 held inapplicable Para 25 2008 (8) SCALE 475 held inapplicable Para 25 (2000) 2 SCC 536 referred to Para 25 (2004) 4 SCC 1 held inapplicable Para 26 2008 (11) SCALE 42 held inapplicable Para 26 (2007) 5 SCC 447 held inapplicable Para 26 (1988) 4 SCC 284 held inapplicable Para 26 (1989) 3 SCC 151 held inapplicable Para 26 (2006) 8 SCC 581 held inapplicable Para 26 (2001) 8 SCC 24 referred to Para 26 (1996) 3 SCC 644 referred to Para 27 (2004) 18 BHRC 52 referred to Para 29 AIR 2008 SC 663 referred to Para 29 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2535 of 2009. From the Judgment & Order dated 29.01.2007 of the High Court of Judicature at Madras in O.S.A. Nos.196 and 197 of 2001. K.V. Viswanathan, P.B. Suresh and Vipin Nair (for Temple Law Firm) for the Appellant. K. Kamamoorthy, B.P. Balaji, N. Shoba, Sriram J. Thalapathy and Adhi Venkataraman for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2535 OF 2009 [Arising out of SLP (Civil) No. 9221 of 2007] G. Sekar …Appellant Versus Geetha & Ors. …Respondents JUDGMENT S.B. SINHA, J : 1. Leave granted. 2. Effect of the amendment in the Hindu Succession Act, 1956 (for short “the … Continue reading
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