Partition rights and Will proof: omission of Section 23 applied to pending cases, while suspicious circumstances defeated the Will.

Omission of Section 23 of the Hindu Succession Act, 1956 by the 2005 amendment removed the statutory bar that had postponed a female heir's claim to partition of a Hindu dwelling house, because the provision was only a disability regulating timing and did not create a vested right in male heirs. It therefore applied to pending proceedings where no partition by metes and bounds had already been effected, and female heirs could seek partition. The Will propounded by the appellant was also rejected, as material contradictions among the attesting and supporting witnesses, together with suspicious circumstances, justified the finding that due execution and genuineness were not proved. The appeal failed on both grounds.

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Issues: (i) Whether the omission of Section 23 of the Hindu Succession Act, 1956 by the Hindu Succession (Amendment) Act, 2005 removed the bar to a female heir seeking partition of a dwelling house in a pending matter; and (ii) whether the Will propounded by the appellant was duly executed and proved.

Issue (i): Whether the omission of Section 23 of the Hindu Succession Act, 1956 by the Hindu Succession (Amendment) Act, 2005 removed the bar to a female heir seeking partition of a dwelling house in a pending matter.

Analysis: The statutory scheme under Section 8 of the Hindu Succession Act, 1956 conferred absolute succession rights on the heirs of a Hindu male dying intestate, while Section 23 operated only as a disabling provision postponing a female heir's claim for partition of a dwelling house until the male heirs chose to divide their shares. The amendment omitted Section 23 to remove discrimination against female heirs. The restriction was held not to create a vested or enduring right in favour of the male heirs, and therefore its removal could apply to pending proceedings where no partition by metes and bounds had already been effected. The provision was treated as one regulating the timing of enforcement rather than the existence of title.

Conclusion: The bar under Section 23 no longer applied, and the female heirs were entitled to seek partition.

Issue (ii): Whether the Will propounded by the appellant was duly executed and proved.

Analysis: The evidence of the attesting and supporting witnesses contained material contradictions on the preparation, typing, attestation, and surrounding circumstances of the Will. The courts below found these inconsistencies, taken cumulatively with the suspicious circumstances relating to execution, sufficient to disbelieve due execution and genuineness. Those findings were concurrent findings of fact and no compelling reason was shown to disturb them in appellate jurisdiction.

Conclusion: The Will was not proved to have been duly executed and was not accepted as valid.

Final Conclusion: The appeal failed on both the legal challenge to the partition claim and the factual challenge to the Will, leaving the decree in favour of the respondents undisturbed.

Ratio Decidendi: Omission of a statutory disability that merely postpones a co-heir's right to seek partition does not impair any vested right and applies to pending proceedings unless a partition has already been finally effected; concurrent findings rejecting a Will on suspicious circumstances will not ordinarily be disturbed in appeal.

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