Holding

The omission of Section 23 by the Hindu Succession (Amendment) Act, 2005 removes the disability on female heirs, operates prospectively, and does not affect the pending partition suit; the will was not validly proved.

Summary

The appeal arose from a partition suit concerning the self‑acquired property of the deceased Govinda Singh, who allegedly left a will in favour of his son (the appellant). The daughters contested the will’s validity and sought partition of the dwelling house. The key legal issue was the effect of the Hindu Succession (Amendment) Act, 2005, which omitted Section 23 – a special provision restricting female heirs from partitioning a dwelling house – and whether that omission, being prospective, applied to the pending suit. The Supreme Court held that the omission removed the disability on female heirs, that the amendment operates prospectively and does not revive the restriction for suits instituted before its commencement, and that the will was not proved due to numerous suspicious circumstances. Consequently, the appeal was dismissed.

Issues considered

The effect of the omission of Section 23 of the Hindu Succession Act by the 2005 Amendment – whether it is prospective or retrospective.
Whether the restriction in Section 23 continues to bar the female heirs from seeking partition of the dwelling house in the pending suit.
The validity and proof of the alleged will dated 29‑11‑1995.

Legislation cited

Constitution of Indias. Article 136, s. Article 14, s. Article 15
General Clauses Act, 1897s. 6
Hindu Succession Act, 1956s. 14, s. 23, s. 6, s. 8
Hindu Succession (Amendment) Act, 2005
Registration Act, 1908

Subjects

Hindu Succession ActSection 23dwelling houseprospective amendmentwill validitypartition suitgender equalityGeneral Clauses Actstatutory interpretation

Judgment

'
'

1 [2009] 5 S.C.R. 1005

,, G. SEKAR A
v.
GEETHA & ORS.
(Civil Appeal No. 2535 of 2009)

> APRIL 15, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]

HINDU SUCCESSION ACT - Section 23 - Special
. provision relating to dwelling houses - Omission of by Hindu
Succession (Amendment) Act, 2005 - Effect of - Constitution c
of India, Article 136.

Will - Proof of - Concuffent finding that it was validly
proved - No reason to differ with the same.
} D
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.
E
In this appeal, the qt1estion 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.
F·
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 G
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
1005 H
1006 SUPREME COURT REPORTS [2009) 5 S.C.R.
t

A tails 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
B 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
c 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
D
divested of the said right as the restriction in enjoyment 1
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]
E
'174th Reporl 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
F 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
G 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
H
G. SEKAR v. GEETHA & ORS. 1007
~ -/

be a question which must be posed and answered. [Para A
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
B
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 c
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 Narayan/al Bansi/af v. Maneck Phiroz D
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 & Elio E
J & Ors. (2007) 5 SCC 447; Atma Ram Mitta/ v. lshwar Singh
Punia (1988) 4 SCC 284 and Mis Kesho Ram & Co. & ors.

..
--'
I
~
etc. v. Union of India & Ors. (1989) 3 SCC 151, held
inapplicable.

Kolhapur Canesugar Works Ltd. & Anr. v. Union of India
F
& 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] G

,. 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,
H
1008 SUPREME COURT REPORTS [2009] 5 S.C.R.
t

A 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
B
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}
c
Sheela Devi & Ors. v. Lal Chand & Anr. (2006) 8 SCC
581, held inapplicable.

Shyam Sunder & Ors. v. Ram Kumar & Anr. (2001) 8
D SCC 24; Narashimaha Murthy v. Susheelabai (Smt) and
i
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
E 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
F 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
G 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

H
G. SEKAR v. GEETHA & ORS. 1009

proved. There is no reason to differ therewith. [Para 31] A
[1037-C-D]

Case Law Reference:
(1966) 2 SCR 626 held inapplicable Para 22
B
) AIR 1962 SC 945 held inapplicable Para 25
(2006) 2 sec 140 held inapplicable Para 25
AIR 1960 SC 794 held inapplicable Para 25
AIR 1961 SC 29 held inapplicable Para 25 c
2008 (8) SCALE 475 held inapplicable Para 25
(2000) 2 sec 536 referred to Para 25
(2004) 4 sec 1 - held inapplicable Para 26 D
2008 (11) SCALE 42 held inapplicable Para 26
(2001) 5 sec 447 held inapplicable Para 26
(1988) 4 sec 284 beld inapplicable Para 26
E
(1989) 3 sec 151 held inapplicable Para 26
(2006) 8 sec 581 held inapplicable Para 26
(2001) 8 sec 24 referred to Para 26
~ F
(1996) 3 sec 644 referred to Para 27
'
(2004) 18 BHRC 52 referred to Para 29
I
•
~

AIR 2008 SC 663 referred to Para 29

CIVIL APPELLATE JURISDICTION : Civil Appeal No . G
...•
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. H
1010 SUPREME COURT REPORTS [2009] 5 S.C.R.

A KV. 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.
B The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.

2. Effect of the amendment in the Hindu Succession Act,
C 1956 (for short "the Act") by reason of the Hindu Succession
(Amendment) Act, 2005 (for short "the 2005 Act") insofar as
therein Section 23 has been omitted is the question involved
herein.

3. The said question arises in the following factual matrix.
D
The property in suit was owned by one Govinda Singh. He {
purported to have executed a Will in favour of his son, the
appellant herein on 29.11.1995. His wife Sakunthala Bai
predeceased him. The said Govinda Singh died on 9.01.1996
E leaving behind the appellant (original defendant No. 1) and four
daughters, viz., Geetha and Vijaya (plaintiffs) and Shanthi and
Uma (original defendant Nos. 2 and 3).

Indisputably, the parties to the suit were residing in the
premises in suit. Govinda Singh was also a government
1
F contractor. He was running a business of transport. His
daughters were also partners in the firm. Inter alia on the
premise that Govinda Singh died intestate and as disputes and
differences arose between the plaintiffs and the defendants as
regards enjoyment of the property, a suit for partition was filed
G on 11.03.1996 (marked as C.S. No. 153 of 1996) in the High
Court of Judicature at Madras. The suit property inter alia
consisted of residential premises being No. 36, First Cross -'I
Street, West C.l.T. Nagar, Madras - 600 035 as also some
movable properties.
H
-}.
G. SEKAR v. GEETHA & ORS. [S.B. SINHA, J.] 1011

4. Defendant No. 4 Ramesh filed an application for A
impleadment in the said suit alleging that Govinda Singh had
married one 'Saroja' who was, thus, his second wife and
through her he had two daughters and one son, viz.. Jothi, Maya
and himself. It was on the aforementioned premise, Ramesh
was impleaded as a party in the said suit. B
"·
· Appellant in his written statement inter alia contended:

(i) In terms of the aforementioned Will dated
29.11.1995, the suit property, having been
bequeathed in his favour, has vested in him c
absolutely.

(ii} In any event, having regard to the provisions of
Section 23 of the Act, the suit for partition was not
maintainable. D
~

5. Defendant No. 4 also filed a written statement alleging
that the Will was not a genuine one and was prepared
subsequent to 10.12.1995.
In the said suit, the following issues were framed: E
"{1) Whether the deceased Mr. M.K. Govinda Singh died
intestate?

~ (2) Whether the suit for partition by the daughters of the
deceased M.K. Govinda Singh, who died intestate, is F
maintainable or not?

(3) Whether the alleged will dated 29.11.1995 said to have
been executed is genuine one and, if so, who are the
beneficiaries?" G
,

~
6. On or about 7.01.1999, an additional issue was framed,
which reads as under:
"Whether the D-4 is entitled to have any share in the
schedule property? If so what is his share? H
1012 SUPREME COURT REPORTS [2009) 5 S.C.R. \..

A 7. Indisputably, the appellant also initiated a testamentary
proceedings for grant of Letters of Administration with a copy
of the Will annexed thereto, which was marked as O.P. NO. 329
of 1996. The plaintiffs of the suit No. 153 of 1996 entered
caveat in the said proceeding; it was marked as T.O.S. No. 4
B of 1998. A

The issue framed in the said testamentary proceedings
was:

"(1) Whether the Will of Late M.K. Govinda Singh is true,
c valid and genuine?"

8. The learned Single Judge held that the appellant could
not prove due execution of the Will as several suspicious
circumstances surrounded the same.
D It was furthermore held that having regard to the omission 1

of Section 23 of the Act and in view of the fact that even the
Defendant No. 4 in his written statement asked for partition of
the property, Section 23 of the Act would not stand in the way
of plaintiffs' suit for partition. It was directed:
·E
"28. In the result, T.O.S. No. 4 of 1998 is dismissed with
cost of the defendants. In C.S. No. 153 of 1996, there shall
be a preliminary decree for partition of the suit property
into eight equal shares and allotment of two shares
~
F together to the plaintiffs. C.S. No. 153of1996 shall stand
adjourned sine die."
9. Two intra-court appeals were preferred against the said
judgment and decree, which were marked as O.S.A. Nos. 196
and 197 of 2001. By reason of the impugned judgment, the said
G appeals have been dismissed.

As regards the issue of the validity and/ or genuineness
of the Will, the Division Bench held:
""'

H "21. It is no doubt true that P.W.4 belongs to a noble
, G. SEKAR v. GEETHA & ORS. [S.B. SINHA, J.] 1013

profession and ordinarily great weight is to be attached to A
such evidence. However, apart from the fact that several
contradictions are available from the evidence, P.W.4
cannot be characterized as an independent witness as it
is she who had given the reply notice Ex. D-3 on behalf of
the propounder of the Will. At the time when she gave the B
,I,
reply, there is no whisper in such reply that in fact she had
drafted the will and attested the same. These are many of
the aspects appearing from the evidence of P.Ws. 1 to 4
which create sufficient doubt regarding the due execution
of the Will. It is of course true that many of the contradictions c
may appear to be innocuous in isolation. But, when all
these contradictions are considered together along with
the fact that thumb impression was given by the executant,
even though he was obviously signing the document, and
the fact that in the typed will line-spacing in different pages
D
appear to be irregular, they create sufficient doubt
regarding the due execution and genuineness of the will."

As regards application of Section 23 of the Act, it was
opined:
E
"... It is no doubt true that such amendment has come into
force during pendency of the appeal. However, even
assuming that there was any embargo at the time of filing
the suit or passing the judgment by the learned Single
~ Judge as contemplated under Section 23 of the Act as it F
stood, in view of the amendment and deletion of such
provision, it is obvious that there is no such embargo after
9.9.2005. In other words, after 9.9.2005 any female heir
can seek for partition even in respect of a dwelling house.
This subsequent event arising out of change in law is G
obviously to be applied and, therefore, the question of
,,. applying bar under Section 23 of the Act no longer arises
for consideration."
'
10. Mr. K.V. Viswanathan, learned counsel would, in
H
1014 SUPREME COURT REPORTS [2009] 5 S.C.R.

A support of the appeal, raise the following contentions:

(i) The High Court committed a serious error in
passing the impugned judgment insofar as it failed
to take into consideration that the amendment
carried out in the Act by reason of the 2005 Act is
B ),
only prospective in nature, as would be evident
from the report of the Law Commission as also the
Statement of Objects and Reasons thereof and,
thus, the impugned judgment is liable to be set
aside.
c
(ii) The 2005 Act, on a plain reading, cannot be held
to have retrospective effect and, thus, rights and
obligations of the parties should have been
determined as were obtaining on the date of
D institution of the suit.

(iii) If Section 23 of the Act is given retrospective effect,
Section 6 of the Act will also stand amended with
retrospective effect.
E (iv) In view of the fact that execution of the said Will had
been proved and all purported suspicious
circumstances had been explained, the High Court
committed a serious error in opining that the Will
dated 25.11.1995 had not duly been proved.
F
11. Mr. K. Ramamoorthy, learned senior counsel appearing
on behalf of the respondents, on the other hand, would support
the impugned judgment.
12. Before adverting to the rival contentions raised herein,
G we may place on record that the High Court by reason of the
impugned judgment has set aside that part of the order of the _.,
learned single judge whereby Govinda Singh was held to have
married Saroja and had begotten Ramesh and two other
daughters, viz., Jothi and Maya. Ramesh has accepted the said
H finding as no appeal has been preferred therefrom.
G. SEKAR v. GEETHA & ORS. [S.B. SINHA, J.] 1015
.>

-- 13. The Act brought about revolutionary changes in the old
Hindu Law. It was enacted to amend and codify the law relating
to intestate succession amongst Hindus. By reason of the Act,
A,

all female heirs were conferred equal right in the matter of
succession and inheritance with that of the male heirs.
B
Section 8 of the Act reads as under:

"8 - General rules of succession in the case of males

The property of a male Hindu dying intestate shall devolve

- according to the provisions of this Chapter-

(a) firstly, upon the heirs, being the relatives specified in
class I of the Schedule;
c

(b) secondly, if there is no heir of class I, then upon the
heirs, being the relatives specified in class II of the D
Schedule;
(c) thirdly, if there is no heir of any of the two classes, then
upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of E
the deceased."

The Schedule appended to the Act specifies the persons
who would be the relations of Class I, viz.:
- "Class I : Son; daughter; widow; mother; son of a pre-
deceased son; daughter of a pre-deceased son; son of a
F

pre-deceased daughter; daughter of a pre-deceased
daughter; widow of a pre-deceased son; son of a pre-
deceased son of a pre- deceased son; daughter of a pre-
G
deceased son of a pre-deceased son; widow of a pre-
f
deceased son of a pre-deceased son ... "

;;. 14. By reason of Section 14 of the Act, a woman who had
limited interest in the property but was possessed of the same
was to become absolute owner. Section 6 of the Act, however, H
1016 SUPREME COURT REPORTS [2009) 5 S.C.R.
...

A makes an exception to the aforementioned rule by providing
the manner in which the interest in the coparcenary property
shall devolve upon the heirs stating that the rule of survivorship
would operate in respect thereof. The right, title and interest of
an heir, whether male or female, thus, are governed by the
B provisions of the Act.
15. The property in the hands of Govinda Singh was not a
coparcenary property. It was his self-acquired property. The
parties hereto, therefore, obtained equal shares being the
relatives specified in Class-I of the Schedule. Plaintiffs -
c Respondents, therefore, became owners to the extent of 1/Sth
share of the said property. The title to the aforementioned
--
extent of each co-sharer, having devolved upon them by reason
of operation of statute, was absolute.

D 16. Section 23 of the Act, however, curtails the rights of
the daughters to obtain a decree for partition in respect of
dwelling houses, stating:

"23. Special provision respecting dwelling houses.-
Where a Hindu intestate has left surviving him or her both
E
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
F 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
G 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." -'\

The proviso appended to Section 23 of the Act confers
right of the daughter who is separate from her husband and
H
G. SEKAR v. GEETHA & ORS. [S.B. SINHA, J.] 1017

giving the right to the widow in spite of the fact that her husband A
has left a dwelling house. The right of a female heir to claim
partition of the family dwelling house although restricted so long
as the male heirs do not choose to affect partition of the same
but it expressly recognizes her right to reside therein.
B
17. The said property belonging to Govinda Singh,
therefore, having devolved upon all his heirs in equal share on
his death, it would not be correct to contend that the right, title
and interest in the property itself was subjected to the restrictive
right contained in Section 23 of the Act. The title by reason of
Section 8 of the Act devolved absolutely upon the daughters
c
as well as the sons of Govinda Singh. They had, thus, a right
to maintain a suit for partition.

Section 23 of the Act, however, carves out an exception
in regard to obtaining a decree for possession inter alia in a D
case where dwelling house was possessed by a 111ale heir.
Apart therefrom, the right of a female heir in a property of her
father, who has died intestate is equal to her brother.

18. Section 23 of the Act merely restricts the right to a E
certain extent. It, however, recognizes the right of residence in
respect of the class of females who come within the purview
of proviso thereof. Such a right of residence does not depend
upon the date on which the suit has been instituted but can also
.\ be subsequently enforced by a female, if she comes within the
F
purview of proviso appended to Section 23 of the Act.

19. We have been taken through the 174th Report of the
Law Commission which recommended omission of Section 23
of the Act in view of amendment in Section 6 of the Act.
G
Report of the Law Commission although may be looked
into for the purpose of construction of a statute but, it is trite
that the same would not prevail over a clear and umambiguous
provision contained therein. We may, however, notice Clause
3.2.9 of the Report of the Law Commission, to which our H
1018 SUPREME COURT REPORTS (2009) 5 S.C.R.

A attention has been drawn to, reads as under:

"3.2.9 It is further felt that once a daughter is made a
coparcener on the same footing as a son then her right
as a coparcener should be real in spirit and content. In that
event section 23 of the HSA should be deleted. Section
8
23 provides that on the death of a Hindu intestate, in case
of a dwelling house wholly occupied by members of the
joint family, a female heir is not entitled to demand partition
unless the male heirs choose to do so; it further curtails
the right of residence of a daughter unless she is
c unmarried or has been deserted by or has separated from
her husband or is a widow. Section 23 of HSA needs to
be deleted altogether and there is great support for this
from· various sections of society while replying to the
questionnaire."
D
t
The last sentence of the said paragraph clearly shows that
it was thought necessary to delete the said provision as there
was a great support therefor from various sections of the society.
Indisputably, the amending Act was not enacted in total
E consonance of the recommendations of the Law Commission.

20. We may in the aforementioned backdrop notice the
relevant portion of the Statement of Objects and Reasons of
the 2005 Act, which reads as under:
F ~
"3. It is proposed to remove the discrimination as
contained in section 6 of the Hindu Succession Act, 1956
by giving equal rights to daughters in the Hindu Mitakshara
coparcenary property as the sons have. Section 23 of the
Act disentitles a female heir to ask for partition in respect
G of a dwelling house wholly occupied by a joint family until
the male heirs choose to divide their respective shares
therein. It is also proposed to omit the same section so
as to remove the disability on female heirs contained in
that section."
H
G. SEKAR v. GEETHA & ORS. [S.8. SINHA, J.] 1019

21. It is, therefore, evident that the Parliament intended to A
achieve the goal of removal of discrimination not only as
contained in Section 6 of the Act but also conferring an
absolute right in a female heir to ask for a partition in a dwelling
house wholly occupied by a joint family as provided for in terms
of Section 23 of the Act. 8
22. Section 23 of the 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 C
is concerned has been sought to be removed 1 we fail 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 D
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 E
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 F
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.
We may notice Sub-section (5) of the 2005 Act, which reads
as under: G

"(5} Nothing contained in this section shall apply to a
partition, which has been effected before the 20th day of
December,2004

Explanation- For the purposes of this section "partition" H
1020 SUPREME COURT REPORTS [2009] 5 S.C.R.

A means any partition made by execution of a deed of
partition duly registered under the Registration Act, 1908
or partition effected by a decree of a court."

Thus, where a partition has not taken place, the said
provision shall apply.
B
Reliance has also been placed by Mr. Viswanathan on
Eramma v. Verrupanna & ors. [(1966) 2 SCR 626], wherein it
was held:

c "It is clear from the express language of the section that it
applies only to coparcenary property of the male Hindu
holder who dies after the commencement of the Act. It is
manifest that the language of s. 8 must be construed in the
context of s. 6 of the Act. We accordingly hold that the
provisions of s. 8 of the Hindu Succession Act are not
D
retrospective in operation and where a male Hindu died
before the Act came into force i.e., where succession
opened before the Act, s. 8 of the Act will have no
application."
E In the factual matrix obtaining in Eramma (supra), Section
8 was construed in the light of Section 6 of the Act, as one of
the questions raised therein was as to whether the property was
a coparcenery property or not.

F Neither the 1956 Act nor the 2005 Act seeks to reopen
vesting of a right where succession had already been taken
place.

23. The operation of the said statute is no doubt
prospective in nature.
G
The High Court might have committed a mistake in opining
that the operation of Section 3 of the 2005 Act is retrospective
in character, but, for the reasons aforementioned, it does not
make any difference. What should have been held was that
H although it is not retrospective in nature, its application is
G. SEKAR v. GEETHA & ORS. [S.B. SINHA, J.] 1021
...

prospective. A

24. 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 B
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.

25. It is trite that although omission of a provision operates
as an amendment to the statute but then Section 6 of the c
General Clauses Act, whereupon reliance has been placed by
Mr. Viswanathan, could have been applied provided it takes
away somebody's vested right. Restrictive right contained in
Section 23 of the Act, in view of our aforementioned
discussions, cannot be held to remain continuing despite the D
)
2005 Act.

Reliance has been placed by Mr. Viswanathan on The
State of Orissa v. Bhupendra Kumar Bose & ors. [AIR 1962
SC 945] wherein the effect of a lapsing of the ordinance vis-a- E
vis non applicability of Section 6 of the General Clauses Act
to such a situation was examined by this Court to hold that even
in the case of right created by a temporary statute if the right
is of an enduring character and has vested in the person that
right cannot be taken away because the statute by which it was
F
· created has expired. We are not faced with such a situation.

We may notice that a Constitution Bench of this Court in
Kolhapur Canesugar Works Ltd. & Anr. v. Union of India &
Ors. [(2000) 2 SCC 536] considered the effect of omission of
the Rules in a subordinate legislation, holding: G

"34 ... It is not correct to say that in considering the
question of maintainability of pending proceedings initiated
0
under a particular provision of the rule after the said
provision was omitted the Court is not to look for a H
1022 SUPREME COURT REPORTS [2009) 5 S.C.R.

A provision in the newly added rule for continuing the pending
proceedings. It is also not correct to say that the test is
whether there is any provision in the rules to the effect that
pending proceedings will lapse on omission of the rule
under which the notice was issued. It is our considered
B view that in such a case the Court is to look to the
provisions in the rule which has been introduced after
omission of the previous rule to determine whether a
pending proceeding will continue or lapse. If there is a
provision therein that pending proceeding shall continue
c and be disposed of under the old rule as if the rule has
not been deleted or omitted then such a proceeding will
continue. If the case is covered by Section 6 of the General
Clauses Act or there is a pari materia provision in the
statute under which the rule has been framed in that case
also the pending proceeding will not be affected by
D
omission of the rule. In the absence of any such provision
in the statute or in the rule the pending proceedings would
lapse on the rule under which the notice was issued or
proceeding was initiated being deleted/omitted. It is
relevant to note here that in the present case the question
E of divesting the Revenue of a vested right does not arise
since no order directing refund of the amount had been
passed on the date when Rule 10 was omitted."

The observations made therein instead of advancing the
F cause of the appellant goes against his contentions.

We are not oblivious of the fact that correctness of the said
decision was doubted in S.L. Srinivasa .lute Twine Mills (P)
Ltd. v. Union of India & Anr. ((2006) 2 SCC 740] wherein
G omission of Section 16(1)(d) of the Employees' Provident Fund
& Miscellaneous Provisions Act, 1952, which gave infancy
protection, was held not to take away the right of parties
existing on that date, opining that the right to infancy protection
accrued prior to that date held continue to survive for the
H balance infancy period.
~
G. SEKAR v. GEETHA & ORS. [S.S. SINHA, J.] 1023

The said decision has no application in the fact of the A
present case.

We may, however, notice that in Brihan Maharashtra
Sugar Syndicate Ltd. v. Janardan Ramchandra Kulkarni &
ors. [AIR 1960 SC 794], while dealing with the scope of Section
}
6 of the General Clauses Act, this Court held:
B

"5. Now it has been held by this Court in State of Punjab
v. Mohar Singh (AIR 1955 SC 84), that S. 6 applies even
where the repealing Act contains fresh legislation on the
same subject but in such a ~ase one would have to look c
to the provisions of the new Act for the purposes of
determining whether they indicate a different intention. The
Act of 1956 not only repeals the Act of 1913 but contains
other fresh legislation on the matters enacted by the Act
> of 1913. It was further observed in State of Punjab v. D
Mohar Singh (AIR 1955 SC 84), that in trying to ascertain
whether there is a contrary intention in the new legislation,
i
J "the line of enquiry would be not whether the new Act
expressly keeps alive old rights and liabilities but whether
it manifests an intention to destroy them.'"' E
It was furthermore observed:

"9. We are unable to accept these contentions. Section 10
t of the Act of 1956 deals only with the jurisdiction of courts.
It shows that the District Courts can no longer be F
empowered to deal with applications under the Act of
1956 in respect of matters contemplated by s. 153-C bf
the Act of 1913. This does not indicate that the rights
created by s. 153-C of the Act of 1913 were intended to
be destroyed. As we have earlier pointed out from State G
of Punjab v. Mohar Singh (AIR 1955 SC 84), the contrary
intention in the repealing Act must show that the rights
under the old Act were intended to be destroyed in order
to prevent the application of s. 6 of the General Clauses
Act. But it is said that s. 24 of the General Clauses Act H
1024 SUPREME COURT REPORTS [2009) 5 S.C.R. ..
A puts an end to the notification giving power to the District
Judge, Poona to hear the application under s. 153-C of ...
the Act of 1913 as that notification is inconsistent with s.
10 of the Act of 1956 and the District Judge cannot,
therefore, continue to deal with the application. Section 24
B does not however purport to put an end to any notification.
It is not intended to terminate any notification; all it does
is to continue a notification in force in the stated
circumstances after the Act under which it was issued, is
repealed. Section 24 therefore does not cancel the
notification empowering the District Judge of Poona to
c exercise jurisdiction under the Act of 1913. It seems to us
that s.ince under s. 6 of the General Clauses Act the
proceeding in respect of the application under s. 153-C
of the Act of 1913 may be continued after the repeal of
that Act, it follows that the District Judge of Poona
D continues to have jurisdiction to entertain it. If it were not
~

• so, then s. 6 would become infructuous."

Yet again in Raja Narayan/al Bansi/al v. Maneck Phiroz
Mistry [AIR 1961 SC 29] this Court, while interpreting the
E provisions of Section 645 of the Companies Act, opined:

"The effect of this section is clear. If an inspector has been
appointed under the relevant section of the old Act, on
repeal of the old Act and on coming into force of the new
Act, his appointment shall have effect as if it was made
F
u'nder or in pursuance of the new Act. Indeed it is common
ground that if s. 645 had stood alone and had not been
followed by s. 646 there would have been no difficulty in
holding that the inspector appointed under the old Act
could exercise his powers and authority under the relevant
G provisions of the new Act, and the impugned notices would
then be perfectly valid. Incidentally we may refer to the
provisions of s. 652 in this connection. Under this section
"'
any person appointed to that office under or by virtue of
any previous company law shall be deemed to have been
H
• G. SEKAR v. GEETHA & ORS. [S.B. SINHA, J.] 1025

appointed to that office under this Act." A

In State of Punjab & Ors. v. Bhajan Kaur & Ors. [2008 (8)
SCALE 475), while dealing with the question as to whether the
quantum of no fault liability enhanced from Rs.15,000/- to
Rs.50,000/- could be awarded, it was held:
B
"13. No reason has been assigned as to why the 1988 Act
should be held to be retrospective in character. The rights
and liabilities of the parties are determined when cause
of action for filing the claim petition arises. As indicated
hereinbefore, the liability_ under the Act is a statutory c
liability. The liability could, thus, be made retrospective only
by reason of a statute or statutory rules. It was required to
be so stated expressly by the Parliament.

i Applying the principles of interpretation of statute, the D
1988 Act cannot be given retrospective effect, more
particularly, when it came into force on or about 1.07.1989.

14. Reference to Section 6 of the General Clauses Act, in
our opinion, is misplaced. Section 217 of the 1988 Act
contains the repeal and saving clause. Section 140 of the E
1988 Act does not find place in various clauses contained
in Sub-section (2) of Section 217 of the 1988 Act. Sub-
section (4) of Section 217 of the 1988 Act reads, thus:

"(4) The mention of particular matters in this section F
shall not be held to prejudice or affect the general
application of Section 6 of the General Clauses
Act, 1897 (10 of 1897) with regard to the effect of
repeals.""
G
26. Indisputably, the question as to whether an amendment
~ is prospective or retrospective in nature, will depend upon its
construction.

It is merely a disabling provision. Such a right could be
enforced if a cause of action therefor arose subsequently. A right H
1026 SUPREME COURT REPORTS (2009] 5 S.C.R. ..

A of the son to keep the right of the daughters of the last male
owner to seek for partition of a dwelling house being a right of
the male owner to keep the same· in abeyance till the division
takes place is not a right of enduring in nature. It cannot be said
to be an accrued right or a vested right. Such a right
B indisputably can be taken away by operation of the statute and/
or by removing the disablement clause.

In Bhajan Kaur (supra), it was held:

"16. Section 6 of the General Clauses Act, therefore, inter
c alia saves a right accrued and/ or a liability incurred. It does
not create a right. When Section 6 applies only ar. existing
right is saved thereby. The existing right of a party has to
be determined on the basis of the statute w~ich was
applicable and not under the new one. If a new Act confers
D a right, it does so with prospective effect when it comes ~
into force, unless expressly stated otherwise."

In Vishwant Kumar v. Madan Lal Sharma & Anr~ ((2004)
4 SCC 1), a three judge Bench of this Court repelled a similar
contention that Section 9 of the Delhi Rent Control Act providing
E
for the exclusion of operation thereof in the following words:

"... There is a difference between a mere right c:1nd what
is right acquired or accrued. We have to examine the
question herein with reference to Sections 4, 6 and 9 of
F the Act. It is correct that under Section 4 of the Hent Act,
the tenant is not bound to pay rent in excess of the standard
rent, whereas under Section 9 he has a right to get the
standard rent fixed. Such a right is the right to take
advantage of an enactment and it is not an accru1:id right."
G
It was furthermore opined:
~.

"What is unaffected by repeal is a right acquired or
accrued under the Act. That till the decree is passed, there
is no accrued right. The mere right existing on date of
H repeal to take advantage of the repealed provisicns is not
G. SEKAR v. GEETHA & ORS. [S.B. SINHA, J.] 1027

a right accrued within Section 6(c) of the General Clauses A
Act. Further, there is a vast difference between rights of a
tenant under the Rent Act and the rights of the landlord.
The right of a statutory tenant to pay rent not exceeding
standard rent or the right to get standard rent fixed are
protective rights and not vested rights. On the other hand, B
the landlord has rights recognised under the law of Contract
and Transfer of Property Act which are vested rights and
which are suspended by the provisions of the Rent Act but
the day the Rent Act is withdrawn, the suspended rights
of the land lord revive." c
A similar question came up for consideration recently in
Subodh S. Sa/askar v. Jayprakash M. Shah &Anr. (2008 (11)
SCALE 42], wherein it was noticed:

"25. In Madishetti Bala Ramu/ (Dead) By LRs. v. Land D
Acquisition Officer [(2007) 9 SCC 650], this Court held as
under:

"18. It is not the case of the appellants that the total
amount of compensation stands reduced. If it had E
not been, we fail to understand as to how Section
25 will have any application in the instant case.
Furthermore, Section 25 being a substantive
provision will have no retrospective effect. The
original award was passed on 8-2-1981: Section F
}
25, as it stands now, may, therefore, not have any
application in the instant case."

The question is now covered by a judgment of this
Court in Anil Kumar Goel v. Kishan Chand Kaura
[2008 AIR sew 295] holding: G

"8. All laws that affect.substantive rights generally
operate prospectively and there is a presumption
against their retrospectivity if they affect vested
rights and obligations. unless the legislative intent H
1028 SUPREME COURT REPORTS [2009] 5 S.C.R.

A is clear and compulsive. Such retrospective effect
may be given where there are express words giving
retrospective effect or where the language used
necessarily implies that such retrospective
operation is intended. Hence the question whether
B a statutory provision has retrospective effect or not
depends primarily on the language in which it is
couched. If the language is clear and unambiguous,
effect will have to be given to the provision is
question in accordance with its tenor. If the
c language is not clear then the court has to decide
whether, in the light of the surrounding
circumstances, retrospective effect should be given
to it or not. (See: Punjab Tin Supply Co.,
Chandigarh etc. etc. v. Central GovemmE!nt and
Ors., AIR 1984 SC 87).
D
9. There is nothing in the amendment made to
Section 142(b) by the Act 55 of 2002 that th13 same
was intended to operate retrospectively. In fact that
was not even the stand of the respondent.
E Obviously, when the complaint was filed on
28.11.1998, the respondent could not have
foreseen that in future any amendment providing for
extending the period of limitation on sufficient cause
being shown would be enacted.""
F
In Southern Petrochemical Industries Co. Ltd. v.
Electricity Inspector & Etio & ors. [(2007) 5 SCC 447], it was
held:
"... The expression "privilege" has a wider meaning than
G right. A right may be a vested right or an accrued right or
an acquired right. Nature of such a right would depend
upon and also vary from statute to statute."

Strong reliance has been placed by Mr. Viswanathan on
H Atma Ram Mittal v. lshwar Singh Punia [[(1988) 4 SCC 284],
G. SEKAR v. GEETHA & ORS. [S.B. SINHA, J.] 1029

wherein it was held: A

"8. It is well-settled that no man should suffer because of
the fault of the Court or delay in the procedure. Broom has
stated the maxim"actus curiam neminem gravabit"-an act
of Court shall prejudice no man. Therefore, having regard 8
to the time normally consumed for adjudication, the 10
years exemption or holiday from the application of the Rent
Act would become illusory, if the suit has to be filed within
that time and be disposed of finally. It is common
knowledge that unless a suit is instituted soon after the C
date of letting it would never be disposed of within 1O
years and even then within that time it may not be disposed
of. That will make the 10 years holidays from the Rent Act
illusory and provide no incentive to the landlords to build
new houses to solve problem of shortages of houses. The
purpose of legislation would thus be defeated. Purposive D
interpretation in a social amelioration legislation is an
imperative irrespective of anything else. n

Yet again, reliance has been placed on Mis Kesho Ram
& Co. & ors. etc. v. Union of India & Ors. [(1989) 3 SCC 151), E
wherein it was held:

"13. Learned Counsel urged that the impugned Notification
enlarged the period of exemption for an indefinite period
and it tends to amend Section 13 of the Act and it is F
contrary to the object and purpose of the Act. Developing
the argument it was submitted that the Notification granted
exemption to newly constructed buildings in the urban area
of Chandigarh for a period of five years only from the
operation of Section 13 of the Act, therefore, no exemption
could be available to newly constructed buildings after the G
expiry of five years. A suit if instituted during the period of
exemption could not be decreed, nor such decree could
be executed after the expiry of five years period but the
last portion of the Notification which states that Section 13
H
1030 SUPREME COURT REPORTS [2009] 5 S.C.R.

A of the Act shall not apply to decree of civil courts whether
such decree was passed during the period of exemption
or "at any time thereafter" enlarged the period of
exemption for an indefinite period of time, and it seeks to
amend Section 13 of the Act. We do not find merit in the
B submission. As noticed earlier Section 13(1) imposes a
complete ban against the eviction of a tenant in execution
of a decree passed by a civil court before or after the
commencement of the Act and it further lays down that a
tenant in possession of a building or rented land shall not
c be evicted except in accordance with the provisions of
Section 13 or an order made in pursuance of the
provisions of the Act. Sub-Section (2) of Section 13 sets
out statutory grounds on which the Controller, an authority
constituted under the Act has power to pass order of
eviction against a tenant. Section 13 takes away the
D
jurisdiction of civil court to pass a decree of eviction or
execution thereof against a tenant in respect of a building
which is subject to the provisions of the Act The impugned
Notification grants immunity to newly constructed buildings
from the shackles of Section 13 of the Act for a period of
E five years. While doing so, the Notification has taken care
to make the exemption effective by providing that the
exemption shall be available to the building even if the
decree is passed after the expiry of the period of five years
provided the suit is instituted during the period of
F exemption. The emphasis is on the institution of the suit
within the period of exemption of five years. Once the
landlord institutes a suit before the expiry of the period of
exemption, the decree even if passed after the period of
five years will not be subject to the provisions of Section
G 13 of the Act. This is the true meaning of the Notification
The Notification does not enlarge the period of exemption
instead it safeguards the rights of the parties which
crystalise on the date of institution of the suit.

H The aforementioned decisions for the reasons stated supra
G. SEKAR v. GEETHA & ORS. [S.B. SINHA, J.] 1031
A

are not applicable in the instant case. A

As indicated hereinbefore, the institution of a suit is not
barred. What is barred is actual partition by metes and bounds.

Reliance has also been placed on Sheela Devi & Ors. v.
Lal Chand & Anr. [(2006) 8 SCC 581]. The question which B
arose therein was vesting of right of a coparcener of a
mitakshra family under the old Hindu Law vis-a-vis Hindu
Succession Act, 1956. The contention raised therein that the
provisions of the Amendment Act, 2005 will have no
,,_ application as the succession had opened in 1989 was c
negatived, holding:

"21. The Act indisputably would prevail over the old Hindu
Law. We may notice that the Parliament, with a view to
confer right upon the female heirs, even in relation to the D
, joint family property, enacted Hindu Succession Act, 2005.
>
Such a provision was enacted as far back in 1987 by the
State of Andhra Pradesh. The succession having opened
in 1989, evidently, the provisions of Amendment Act, 2005
would have no application. Sub-section (1) of Section 6
E
of the Act governs the law relating to succession on the
death of a coparcener in the event the heirs are only male
r
descendants. But, proviso appended to Sub-section (1) of
Section 6 of the Act creates an exception. First son of
Babu Lal, viz., Lal Chand, was, thus, a coparcener. Section
6 is exception to the general rules. It was, therefore, F
obligatory on the part of the Plaintiffs-Respondents to show
that apart from Lal Chand, Sohan Lal will also derive the
benefit thereof. So far as the Second son Schan Lal is
concerned, no evidence has been brought on records to
show that he was born prior to coming into force of Hindu G
Succession Act, 1956. Thus, it was the half share in the
;.. property of Babu Ram, which would devolve upon all his
heirs and legal representatives as at least one of his sons
was born prior to coming into force of the Act."
H
1032 SUPREME COURT REPORTS [2009] 5 S.C.R.

A The said decision, thus, cannot be said to have any
application whatsoever in this case.

Reliance has also been placed by Mr. Viswanathan in
Shyam Sunder & Ors. v. Ram Kumar & Anr. [(2001) 8 SCC
24], wherein it was held that ordinarily a statute should be
B
construed to have prospective operation. In that case, a right
of pre-emption was sought to be taken away by Section 15 of
the Punjab Pre-emption Act, 1913 as substituted by Haryana
Act 10 of 1995 and it was on that premise, held:

c "28. From the aforesaid decisions the legal position that
emerges is that when a repeal of an enactment is followed
by a fresh legislation such legislation does not effect the
substantive rights of the parties on the date of suit or
adjudication of suit unless such a legislation is ...
D retrospective and a court of appeal cannot take into
consideration a new law brought into existence after the (

judgment appealed from has been rendered because the
rights of the parties in an appeal are determined under the
law in force on the date of suit. However, the position in
E law would be different in the matters which relate to
procedural law but so far as substantive rights of parties
are concerned they remain unaffected by the amendment
in the enactment. We are, therefore, of the view that where
a repeal of provisions of an enactment is followed by fresh
F legislation by an amending Act such legislation is
prospective in operation and does not effect substantive
~
.
or vested rights of the parties unless made retrospective
either expressly or by necessary intendment. We are
further of the view that there is a presumption against the
retrospective operation of a statue and further a statute is
G
not to be construed have a greater retrospective operation
than its language renders necessary, but an amending act
which affects the procedure is presumed to be ..
retrospective, unless amending act provides otherwise."
H
G. SEKAR v. GEETHA & ORS. [S.B. SINHA, J.] 1033

27. Mr. Viswanathan also placed strong reliance upon a A
;_ decision of this Court in Narashimaha Murthy v. Susheelabai
(Smt) and Others [(1996) 3 SCC 644]. The principal question
which arose for consideration therein was as to whether the
premises which are tenanted ones would come within the
definition of 'dwelling house' so as to attract the rigours of B
Section 23 of the Act. This Court clearly held that the
succession cannot be postponed and Section 23 has been
engrafted "respecting tradition of preserving family dwelling
house to effectuate family unity and prevent its fragmentation
or disintegration by dividing it by metes and bounds". It was c
furthermore held that "the prohibition gets lifted when male heirs
have chosen to partition it".

28. Thus, 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, D
~
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.
E
29. Another aspect of the matter must also be borne in
mind.

In terms of Articles 14 and 15 of the Constitution of India,
the female heirs, subject to the statutory rule operating in that
F
• 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.

It is of some significance to notice that the South African
Constitutional Court in Bhe & Ors. v. The Magistrate, G
Khaye/isha & Ors. [(2004) 18 BHRC 52] declared the Black
Administration Act, 1927 (South Africa) and the Regulations of
>
the Administration and Distribution of the Estates of Deceased
'
Blacks (South Africa) ultra vires as in terms whereof the
customary law of succession where principle of male H
1034 SUPREME COURT REPORTS [2009] 5 S.C.R.

A primogeniture was central to customary law of succession was
provided for.

It was held by the majority that the rule of male
primogeniture as it applied in customary law to the inheritance
B of property was inconsistent with the constitution and invalid to
the extent that it excluded or hindered women and extra-marital
children from inheriting property. The rules of succession in
customary law had not been given the space to adapt and to
keep pace with changing societal conditions and values.
Instead, they had over time become increasingly out of step
c with the real values and circumstances of the societies they
were meant to serve. The application of the customary law rules
of succession in circumstances vastly different from their
-
traditional setting caused much hardship. Thus the official rules
of customary law of succession were no longer universally ,.
D observed. The exclusion of women from inheritance on the
grounds of gender was a clear violation of the constitutional ~

prohibition against unfair discrimination.

The said view of the Constitutional Court of South Africa
E has been noticed by this Court in Anuj Garg & Ors. v. Hotel
Association of India & ors. [AIR 2008 SC 663].

Even otherwise, it is not a fit case where we should
exercise our discretionary jurisdiction under Article 136 of the
Constitution of India as the fact remains that Section 23 of the
F 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.

30. The question as to whether the Will was validly
G executed or not is essentially a question of fact. Both the
learned Single Judge as also the Division Bench pointed out
a large number of prevailing suspicious circumstances to opine
that the same had not been validly executed. " "
Let us now briefly consider the question as to whether the
H
G. SEKAR v. GEETHA & ORS. (S.B. SINHA, J.] 1035

execution of the Will has duly been proved. A

Appellant stated in his evidence that one Ms. Radhai,
Advocate (PW-4) prepared the Will and that the testator gave
instructions in the morning of 29.11.1995 therefor. He further
stated that at the time his father gave instructions for
B
preparation of the Will, their neighbour Vishwanathan (PW-3)
and Mrs. Radhai, Advocate were present. He further stated:

"I do not know where exactly the Will was typewritten".

However, in Ex. D-3, it has not been mentioned that Ms. c
Radhai prepared the Will and had attested the same.

PW-3 Vishwanathan deposed that "at the instance of
' Govinda Singh, Radhai brought the typed written Will". However,
in cross examination, he stated: "I do now know where the Will
~
was typed". He furthermore stated: D

"I was present when Govinda Singh gave instructions to
Mrs. Radhai for preparation of the Will. None else were
present. Govinda Singh gave instructions to Mrs. Radhai
by 10.00 A.M. She brought the typed Will by 2.00 P.M., I E
was not present throughout in the hospital."

PW-4 Ms. Radhai in her examination in chief stated:

~ "On 29.11.1995 at 10.00 a.m. I went to Devaki Hospital. I
met Govinda Singh, PW-2 and PW-3 were present in the F
hospital. PW-2 going here and there in the hospital. The
testator gave instructions to me to draft the Will. I noted
the instructions in a piece of paper, came to High Court
and got the Will typed. The Will was typed by a typist who
was available in the corridors. The typist was s. Teresa. G
At about 2.00 P.M. I went to the hospital on the same day,
?
read the contents of the Will to the testator, then he affixed
his left thumb impression ... then I signed the Will. Thereafter
PW-3 signed the Will."
H
1036 SUPREME COURT REPORTS [2009] 5 S.C.R.

A However, in the cross-examination, she .stated:

"On 29.11.95 at about 8.00 a.m. in the morning
Vishwanathan came to my house and told that the testator
wanted me to meet him ... I do not know the mother-tongue
of the testator. I did not retain the note of instructions given
B
by the testator for drafting the Will. Teresa was the regular
typist. Because the testator used to talk to me in Tamil, I
drafted the Will in Tamil. The testator had not instructed me
that the Will should be in Tamil only. I was not by the side
of Teresa when she typed the Will. I only gave instructions
c to her. Teresa had not drafted the Will. I drafted the Will in
writing and gave it to her for typing. I do not have the
manuscript. I did not compare the typed Will with the
manuscript." ,,

D Appellant filed an affidavit in support of his case, which was /.
attested and drafted by PW-4 Ms. Radhai in English. Appellant
did not speak of this affidavit. PW-3 Vishwanathan in the cross-
examination admitted:

"I do not know whether Govinda Singh signed any other
E
paper apart from Ex. P.1".

PW-4 Ms. Radhai in the cross-examination stated:

"I have notarized the affidavit of Govinda Singh few days
F after attesting the Will."
However, she admitted:

"I do not remember whether the testator signed any other
affidavit on 29.11.95 apart from the Will."
G
On further cross-examination, she deposed:

"Ex. P.2 is an affidavit which I have attested on 29.11.95.
I have attested P-2 in my office. I have drafted the affidavit.
...
..
I supplied the stamp paper for drafting the affidavit.
H
G. SEKAR v. GEETHA & ORS. [S.B. SINHA, J.] 1037

Because the attestator wanted an affidavit to confirm the A
Will, Ex. P.2 was drafted. I purchased the stamp papers
for drafting the affidavit."

However, it has been brought to our notice that the stamp
paper had been purchased by PW-4 on 11.10.1995 in the B
name of M.K. Govinda Singh from a place called Thiriuviyaru
in Thanjore District which is 200 miles away from Chennai. She
further deposed:

"I do not remember where I purchased the stamp papers
for drafting Ex. P.2. There is no particular reason as to why C
the affidavit was drafted in English".

31. 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 o
surrounding the same. They have arrived at a concurrent finding
that the Will was not validly proved. We do not find any reason
to differ therewith.

32. For the reasons aforementioned, the appeal is
dismissed. However, in the facts and circumstances of the E
case, there shall be no order as to costs.
G.N. Appeal dismissed.