& ANR. Vs. Chakiri Yanadi & ANR.
R.M. Lodha, J.
question that arises in this appeal, by special leave, is: whether the benefits
of Hindu Succession (Amendment) Act, 2005 are available to the appellants.
appellants and the respondents are siblings being daughters and sons of Chakiri
Venkata Swamy. The 1 st 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.
1st defendant died in 1993 during the pendency of the suit.
trial court vide its judgment and preliminary decree dated March 19, 1999 declared
that plaintiff was entitled to 1/3 rd 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 1/5 th 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.
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'.
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.
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.
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.
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'.
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.
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 4objects 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."
the above object in mind, the Parliament substituted the existing Section 6 of
the 1956 Act by a new provision vide 2005 Amendment Act. After substitution, the
new Section 6 reads as follows : "6. Devolution of interest in coparcenary
property. (1) On and from the commencement of the Hindu Succession (Amendment)
Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter
of a coparcener shall, (a) by birth become a coparcener in her own right in the
same manner as the son; (b) have the same rights in the coparcenary property as
she would have had if she had been a son; (c) be subject to the same liabilities
in respect of the said coparcenary property as that of a son, 5and any
reference to a Hindu Mitakshara coparcener shall be deemed to include a reference
to a daughter of a coparcener: Provided that nothing contained in this sub-section
shall affect or invalidate any disposition or alienation including any
partition or testamentary disposition of property which had taken place before
the 20th day of December, 2004.
(2) Any property to
which a female Hindu becomes entitled by virtue of sub-section (1) shall be held
by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding
anything contained in this Act or any other law for the time being in force in,
as property capable of being disposed of by her by testamentary disposition. (3)
Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act,
2005, his interest in the property of a Joint Hindu family governed by the Mitakshara
law, shall devolve by testamentary or intestate succession, as the case may be,
under this Act and not by survivorship, and the coparcenary property shall be deemed
to have been divided as if a partition had taken place and,-
(a) the daughter is
allotted the same share as is allotted to a son; (b) the share of the pre-deceased
son or a pre- deceased daughter, as they would have got had they been alive at the
time of partition, shall be allotted to the surviving child of such
pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased
child of a pre- deceased son or of a pre-deceased daughter, as such child would
have got had he or she been alive at the time of the partition, shall be allotted
to the child of such pre-deceased child of the pre- deceased son or a
pre-deceased daughter, as the case may be. Explanation.- For the purposes of this
sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be
the share in the property that would have been 6allotted to him if a partition
of the property had taken place immediately before his death, irrespective of whether
he was entitled to claim partition or not.
(4) After the commencement
of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any
right to proceed against a son, grandson or great-grandson for the recovery of
any debt due from his father, grandfather or great-grandfather solely on the ground
of the pious obligation under the Hindu law, of such son, grandson or great-grandson
to discharge any such debt: Provided that in the case of any debt contracted
before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing
contained in this sub-section shall affect
(a) the right of any
creditor to proceed against the son, grandson or great-grandson, as the case
may be; or (b) any alienation made in respect of or in satisfaction of, any
such debt, and any such right or alienation shall be enforceable under the rule
of pious obligation in the same manner and to the same extent as it would have
been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been
For the purposes of clause
(a), the expression "son", "grandson" or "great-grandson"
shall be deemed to refer to the son, grandson or great-grandson, as the case may
be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment)
Act, 2005. (5) Nothing contained in this section shall apply to a partition, which
has been effected before the 20th day of December, 2004. Explanation. For the purposes
of this section "partition" means any partition made by execution of a
deed of partition duly registered under the Registration Act, 1908 (16 of 1908)
or partition effected by a decree of a court."
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.
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 effected before 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.
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 9has 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.
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
We are fortified in our
view by a 3 Judge Bench decision of this 10Court in the case of Phoolchand and
Anr. Vs. Gopal Lal 1 wherein 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 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.... ............ ."
Court in the case of S. Sai Reddy vs. S. Narayana Reddy and Others2 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 1 AIR 1967 SC 1470 2
(1991) 3 SCC 647 11the 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 therein 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 29-A, 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 29-A of the Act became
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".
above legal position is wholly and squarely applicable to the present case. It surprises
us that the High Court was not 13apprised 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
C.P.C., 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."
High Court was clearly in error in not properly appreciating the scope of Order
XX Rule 18 of C.P.C. 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 C.P.C. 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 that the rights of the parties in a partition
suit should be settled once for all in that suit alone and no other
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
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.
view of the High Court is against law and the decisions of this Court in
Phoolchand1 and S.Sai Reddy.
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.
(JAGDISH SINGH KHEHAR )