- (1.) Heard learned counsel for the parties and perused the record.
(2.) The short question involved in this second appeal is as to whether the provisions of Hindu Succession (Amendment) Act, 2005 can be given effect to in the pending proceedings ?
(3.) The brief facts giving rise to this second appeal are that the plaintiff-appellants have filed a suit for partition on the ground that the appellant no.1 being the daughter of late Sri Dargahi Lal and the appellants no.2 and 3 being the daughter's daughter (grand daughter) of late Sri Dargahi Lal had inherited the undivided share in the immovable property left by Sri Dargahi Lal. The suit was contested by the respondents, who are none other than widow and son of late Sri Dargahi Lal. The main ground of challenge was that the appellants being the daughter and grand-daughter of late Sri Dargahi Lal could not claim partition of their share as provided under Section 23 of the Hindu Succession Act, 1956. Section 23 as it stood prior to the Amendment Act, 2005 is reproduced as under:- "23. Special provision respecting dwelling houses:-Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein: Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.";