IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8538 OF 2011
(Arising out of SLP (Civil) No. 9586 of 2010)
Ganduri Koteshwaramma & Anr. …. Appellants
Versus
Chakiri Yanadi & Anr. ….Respondents
JUDGMENT
R.M. Lodha, J.
Leave granted.
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.
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. 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,
and 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 predeceased
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 predeceased
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 predeceased
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
allotted 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 enacted.
Explanation.—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.”
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.
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 nonapplicability
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.
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. 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….
………… .”
18. This 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
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 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”.
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
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-à-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 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 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.
………………………J
(R.M. LODHA)
…. …………………………….J.
(JAGDISH SINGH KHEHAR )
NEW DELHI
OCTOBER 12, 2011
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