November 21, 2024
DU LLBFamily law 2Semester 2

Ganduri Koteshwaramma and Anr. v. ChakiriYanadi and Anr.

JUDGMENT: R.M. LODHA, J.

2. The question that arises in this appeal, by special leave, is: whether the benefits of Hindu

Succession (Amendment) Act, 2005 are available to the Appellants.

3. The Appellants and the Respondents are siblings being daughters and sons of Chakiri Venkata

Swamy. The 1st Respondent (plaintiff) filed a suit for partition in the court of Senior Civil Judge,

Ongole impleading his father Chakiri Venkata Swamy (1st Defendant), his brother Chakiri Anji

Babu (2nd Defendant) and his two sisters – the present Appellants – as 3rd and 4th Defendant

respectively. In respect of schedule properties ‘A’, ‘C’ and ‘D’ – coparcenary property – the Plaintiff

claimed that he, 1st Defendant and 2nd Defendant have 1/3rd share each. As regards schedule

property ‘B’-as the property belonged to his mother-he claimed that all the parties have 1/5th

equal share.

4. The 1st Defendant died in 1993 during the pendency of the suit.

5. The trial court vide its judgment and preliminary decree dated March 19, 1999 declared that

Plaintiff was entitled to 1/3rd share in the schedule ‘A’, ‘C’ and ‘D’ properties and further entitled

to 1/4th share in the 1/3rd share left by the 1st Defendant. As regards schedule property ‘B’ the

Plaintiff was declared to be entitled to 1/5th share. The controversy in the present appeal does not

relate to schedule ‘B’ property and is confined to schedule ‘A’, ‘C’ and ‘D’ properties. The trial

court ordered for separate enquiry as regards mesne profits.

6. The above preliminary decree was amended on September 27, 2003 declaring that Plaintiff was

entitled to equal share along with 2nd, 3rd and 4th Defendant in 1/5th share left by the 1st

Defendant in schedule property ‘B’.

7. In furtherance of the preliminary decree dated March 19, 1999 and the amended preliminary

decree dated September 27, 2003, the Plaintiff made two applications before the trial court (i) for

passing the final decree in terms thereof; and (ii) for determination of mesne profits. The trial

court appointed the Commissioner for division of the schedule property and in that regard

directed him to submit his report. The Commissioner submitted his report.

8. In the course of consideration of the report submitted by the Commissioner and before passing

of the final decree, the Hindu Succession (Amendment) Act, 2005 (for short, ‘2005 Amendment

Act’) came into force on September 9, 2005. By 2005 Amendment Act, Section 6 of the Hindu

Succession Act, 1956 (for short ‘1956 Act’) was substituted. Having regard to 2005 Amendment

Act which we shall refer to appropriately at a later stage, the present Appellants (3rd and 4th

Defendant) made an application for passing the preliminary decree in their favour for partition of

schedule properties ‘A’, ‘C’ and ‘D’ into four equal shares; allot one share to each of them by metes

and bounds and for delivery of possession.

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9. The application made by 3rd and 4th Defendant was contested by the Plaintiff. Insofar as 2nd

Defendant is concerned he admitted that the 3rd and 4th Defendant are entitled to share as

claimed by them pursuant to 2005 Amendment Act but he also submitted that they were liable for

the debts of the family.

10. The trial court, on hearing the parties, by its order dated June 15, 2009, allowed the

application of the present Appellants (3rd and 4th Defendant) and held that they were entitled for

re-allotment of shares in the preliminary decree, i.e., they are entitled to 1/4th share each and

separate possession in schedule properties ‘A’, ‘C’ and ‘D’.

11. The Plaintiff (present Respondent No. 1) challenged the order of the trial court in appeal

before the Andhra Pradesh High Court. The Single Judge by his order dated August 26, 2009

allowed the appeal and set aside the order of the trial court.

12. 1956 Act is an Act to codify the law relating to intestate succession among Hindus. This Act

has brought about important changes in the law of succession but without affecting the special

rights of the members of a Mitakshara Coparcenary. The Parliament felt that non-inclusion of

daughters in the Mitakshara Coparcenary property was causing discrimination to them and,

accordingly, decided to bring in necessary changes in the law. The statement of objects and

reasons of the 2005 Amendment Act, inter alia, reads as under:

…The retention of the Mitakshara coparcenary property without including the females in it means

that the females cannot inherit in ancestral property as their male counterparts do. The law by

excluding the daughter from participating in the coparcenary ownership not only contributes to

her discrimination on the ground of gender but also has led to oppression and negation of her

fundamental right of equality guaranteed by the Constitution. Having regard to the need to render

social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra

have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara

coparcenary property.

13. With the above object in mind, the Parliament substituted the existing Section 6 of the 1956

Act by a new provision vide 2005 Amendment Act.( Refer Section 6 of Hindu Succession Act,

1956).

14. The new Section 6 provides for parity of rights in the coparcenary property among male and

female members of a joint Hindu family on and from September 9, 2005. The Legislature has

now conferred substantive right in favour of the daughters. According to the new Section 6, the

daughter of a copercener becomes a coparcener by birth in her own rights and liabilities in the

same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall

have same rights and liabilities in the coparcenary property as she would have been a son is

unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a

share in the ancestral property and is a coparcener as if she had been a son.

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15. The right accrued to a daughter in the property of a joint Hindu family governed by the

Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances

provided in the proviso appended to Sub-section (1) of Section 6. The excepted categories to

which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition

or alienation including any partition has taken place before December 20, 2004; and (ii) where

testamentary disposition of property has been made before December 20, 2004. Sub-section (5) of

Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition

which has been effected before December 20, 2004. For the purposes of new Section 6 it is

explained that `partition’ 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. In light of

a clear provision contained in the Explanation appended to Sub-section (5) of Section 6, for

determining the non-applicability of the Section, what is relevant is to find out whether the

partition has been effectedbefore December 20, 2004 by deed of partition duly registered under

the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position

with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question

that we have to answer is as to whether the preliminary decree passed by the trial court on March

19, 1999 and amended on September 27, 2003 deprives the Appellants of the benefits of 2005

Amendment Act although final decree for partition has not yet been passed.

16. The legal position is settled that partition of a Joint Hindu family can be effected by various

modes, inter-alia, two of these modes are (one) by a registered instrument of a partition and (two)

by a decree of the court. In the present case, admittedly, the partition has not been effected before

December 20, 2004 either by a registered instrument of partition or by a decree of the court. The

only stage that has reached in the suit for partition filed by the Respondent No. 1 is the

determination of shares vide preliminary decree dated March 19, 1999 which came to be

amended on September 27, 2003 and the receipt of the report of the Commissioner.

17. A preliminary decree determines the rights and interests of the parties. The suit for partition is

not disposed of by passing of the preliminary decree. It is by a final decree that the immovable

property of joint Hindu family is partitioned by metes and bounds. After the passing of the

preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e.

after passing of the preliminary decree and before the final decree is passed, the events and

supervening circumstances occur necessitating change in shares, there is no impediment for the

court to amend the preliminary decree or pass another preliminary decree redetermining the rights

and interests of the parties having regard to the changed situation. We are fortified in our view by

a 3-Judge Bench decision of this Court in the case of Phoolchand and Anr. v. Gopal Lal

MANU/SC/0284/1967 : AIR 1967 SC 1470 where in this Court stated as follows:

We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing

of more than one preliminary decree if circumstances justify the same and that it may be

necessary to do so particularly in partition suits when after the preliminary decree some parties

die and shares of other parties are thereby augmented…. So far therefore as partition suits are

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concerned we have no doubt that if an event transpires after the preliminary decree which

necessitates a change in shares, the court can and should do so;…. there is no prohibition in the

Code of Civil Procedure against passing a second preliminary decree in such circumstances and

we do not see why we should rule out a second preliminary decree in such circumstances only on

the ground that the Code of Civil Procedure does not contemplate such a possibility… for it must

not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction

to decide all disputes that may arise after the preliminary decree, particularly in a partition suit

due to deaths of some of the parties….a second preliminary decree can be passed in partition suits

by which the shares allotted in the preliminary decree already passed can be amended and if there

is dispute between surviving parties in that behalf and that dispute is decided the decision

amounts to a decree….

18. This Court in the case of S. Sai Reddy v. S. Narayana Reddy and Ors. MANU/SC/0609/1991

: (1991) 3 SCC 647 had an occasion to consider the question identical to the question with which

we are faced in the present appeal. That was a case where during the pendency of the proceedings

in the suit for partition before the trial court and prior to the passing of final decree, the 1956 Act

was amended by the State Legislature of Andhra Pradesh as a result of which unmarried

daughters became entitled to a share in the joint family property. The unmarried daughters

Respondents 2 to 5 there in made application before the trial court claiming their share in the

property after the State amendment in the 1956 Act. The trial court by its judgment and order

dated August 24, 1989 rejected their application on the ground that the preliminary decree had

already been passed and specific shares of the parties had been declared and, thus, it was not open

to the unmarried daughters to claim share in the property by virtue of the State amendment in the

1956 Act. The unmarried daughters preferred revision against the order of the trial court before

the High Court. The High Court set aside the order of the trial court and declared that in view of

the newly added Section 29A, the unmarried daughters were entitled to share in the joint family

property. The High Court further directed the trial court to determine the shares of the unmarried

daughters accordingly. The Appellant therein challenged the order of the High Court before this

Court. This Court considered the matter thus;

…A partition of the joint Hindu family can be effected by various modes, viz., by a family

settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a

decree of the court. When a suit for partition is filed in a court, a preliminary decree is passed

determining shares of the members of the family. The final decree follows, thereafter, allotting

specific properties and directing the partition of the immovable properties by metes and bounds.

Unless and until the final decree is passed and the allottees of the shares are put in possession of

the respective property, the partition is not complete. The preliminary decree which determines

shares does not bring about the final partition. For, pending the final decree the shares themselves

are liable to be varied on account of the intervening events. In the instant case, there is no dispute

that only a preliminary decree had been passed and before the final decree could be passed the

amending Act came into force as a result of which Clause (ii) of Section 29A of the Act became

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applicable. This intervening event which gave shares to Respondents 2 to 5 had the effect of

varying shares of the parties like any supervening development. Since the legislation is beneficial

and placed on the statute book with the avowed object of benefitting women which is a

vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For

this reason also, we cannot equate the concept of partition that the legislature has in mind in the

present case with a mere severance of the status of the joint family which can be effected by an

expression of a mere desire by a family member to do so. The partition that the legislature has in

mind in the present case is undoubtedly a partition completed in all respects and which has

brought about an irreversible situation. A preliminary decree which merely declares shares which

are themselves liable to change does not bring about any irreversible situation. Hence, we are of

the view that unless a partition of the property is effected by metes and bounds, the daughters

cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast

section of the fair sex of the benefits conferred by the amendment. Spurious family settlements,

instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial

effect of the legislation depriving a vast section of women of its benefits.

19. The above legal position is wholly and squarely applicable to the present case. It surprises us

that the High Court was not apprised of the decisions of this Court in Phoolchand1 and S. Sai

Reddy2

. High Court considered the matter as follows:

In the recent past, the Parliament amended Section 6 of the Hindu Succession Act (for short ‘the

Act’), according status of coparceners to the female members of the family also. Basing their

claim on amended Section 6 of the Act, the Respondents 1 and 2 i.e., Defendants 3 and 4 filed

I.A. No. 564 of 2007 under Order XX Rule 18 of Code of Civil Procedure, a provision, which

applies only to preparation of final decree. It hardly needs an emphasis that a final decree is

always required to be in conformity with the preliminary decree. If any party wants alteration or

change of preliminary decree, the only course open to him or her is to file an appeal or to seek

other remedies vis–vis the preliminary decree. As long as the preliminary decree stands, the

allotment of shares cannot be in a manner different from what is ordained in it.

20. The High Court was clearly in error in not properly appreciating the scope of Order XX Rule

18 of Code of Civil Procedure In a suit for partition of immovable property, if such property is

not assessed to the payment of revenue to the government, ordinarily passing of a preliminary

decree declaring the share of the parties may be required. The court would thereafter proceed for

preparation of final decree. In Phoolchand1

, this Court has stated the legal position that Code of

Civil Procedure creates no impediment for even more than one preliminary decree if after passing

of the preliminary decree events have taken place necessitating the readjustment of shares as

declared in the preliminary decree. The court has always power to revise the preliminary decree

or pass another preliminary decree if the situation in the changed circumstances so demand. A

suit for partition continues after the passing of the preliminary decree and the proceedings in the

suit get extinguished only on passing of the final decree. It is not correct statement of law that

once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis

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that the rights of the parties in a partition suit should be settled once for all in that suit alone and

no other proceedings.

21. Section 97 of C.P.C. that provides that where any party aggrieved by a preliminary decree

passed after the commencement of the Code does not appeal from such decree, he shall be

precluded from disputing its correctness in any appeal which may be preferred from the final

decree does not create any hindrance or obstruction in the power of the court to modify, amend or

alter the preliminary decree or pass another preliminary decree if the changed circumstances so

require.

22. It is true that final decree is always required to be in conformity with the preliminary decree

but that does not mean that a preliminary decree, before the final decree is passed, cannot be

altered or amended or modified by the trial court in the event of changed or supervening

circumstances even if no appeal has been preferred from such preliminary decree.

23. The view of the High Court is against law and the decisions of this Court in Phoolchand1 and

S. Sai Reddy2

.

24. We accordingly allow this appeal; set aside the impugned judgment of the High Court and

restore the order of the trial court dated June 15, 2009. The trial court shall now proceed for the

preparation of the final decree in terms of its order dated June 15, 2009. No costs.

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