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Supreme Court Of India

(From : 2007 (3) Mad LJ 1029)

Hon'ble Judge(s): Satya Brata Sinha, Mukundakam Sharma , JJ

(A) Hindu Succession Act (30 of 1956) , S.23— (as omitted in 2005) S.23 omitted to remove disability on female heirs to ask for partition - Neither 1956 Act nor amending Act of 2005 seek to reopen vesting of right where succession had already taken place - Operation of 2005 Amendment Act is prospective in nature. The Parliament intended to achieve the goal of removal of discrimination not only as contained in S. 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. S. 23 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, one 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 S. 8 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 S. 23 it must be held that such restriction was to be put in operation only at the time of partition....