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.
