The provision as it was there before omission by the 2005 Act in my considered view was purely standing as a temporary bar for exercising the right to partition by the female heirs over the dwelling house wholly occupied by the members of the family. The female had the right over the property to the extent of her share as a class-I heir, but it was remaining under suspension or abeyance so as to be exercised and worked out in reality. Thus the right over the dwelling house of the family wholly occupied by the members of the family standing recognized as such was put under restriction only for being exercised. It was therefore a restrictive right with restrictions put therein to get the same wholly worked out. This in no way was thus creating or clothing any vested right in favour of male heirs although standing as a weapon in their arms to put the right of class-I female heirs on hold from being exercised till such time the male heirs either choose to divide or put the said dwelling house into use in a manner running counter or offending the very objective sought to be achieved by that provision as then existing for the purpose of maintaining the sanctity of the family dwelling house respecting tradition of preserving family dwelling house to effectuate family unity and prevent its fragmentation or disintegration. Even if in a suit for non-fulfillment of those conditions, she was not being allowed with a share over the dwelling house but a suit or suits at a later date on happening of all those events was not legally barred. The provision was in relation to the exercise of the right at appropriate time but not concerning total de-recognition or negation of the right to claim for all times to come. The right over the property by virtue of that provision had not been given a total burial but it was as if being larva inside the volcano in readiness for eruption, at the moment of environmental disorder suiting the purpose when the conditions getting fulfilled. Thus, no finality was attached to such judgment of the courts denying the right to the female heirs to claim partition over the dwelling house. The exercise of the right was remaining in a dormant stage and springing up to life so as to be put into action on the happening of the enumerated eventualities.
Therefore, even in the instant suit, assuming for the sake of argument if we say that the plaintiff being the female heir is not entitled to exercise the right of partition over the dwelling house; however, in view of the omission of the said provision in the statute, she can very well file a suit again for the very same relief on the very day of disposal of the suit or on the next day onwards. So, when the present lis is continuing in the second appeal which has already been admitted and this Court finds that the provision creating the temporary bar to exercise the right has already been omitted, there arises no legal objection or impediment in answering it in favour of the plaintiff that she can well seek for partition of the said dwelling house in accordance with her share as the class-I heir of the Satyabadi against the defendant No. 2, the other class-I heir of Satyabadi. The provision of section 23 of the Act as was existing within all its four was thus a procedural one prescribing the appropriate time so as to the institution of the lis to enforce the right and it was merely a restriction for such time that its exercisable at such point of time when the events would so happen.
15. Although omission of the said section is not expressly stated to be retrospective yet now regard being had to the object behind such omission, it has to be said to be having the application to the pending lis at any stage in the court since the omission is not reopening a decision which had been rendered in that very lis that has reached its finality. But as it has earlier been said that there was no finality to the decision and the right under the earlier provision in the Act was exercisable on the happening of eventualities, the female heirs having been denied with the right to claim partition in a lis now can very well file it again in view of the omission of the provision from the statute and can get a decree if it is otherwise permissible in law even without establishing the eventualities which were required to happen as per earlier provision (since omitted) as the preconditions for grant of decree for partition of the dwelling house at the instance of the female heirs and notwithstanding all those.
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 225 of 2004
Decided On: 01.07.2016
Maheswar Amat and Ors.
Vs.
Ujala Amat
Coram:D. Dash, J.
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