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SUPREME COURT OF INDIA
K.N. Singh, P.B. Sawant
S. SAI REDDY, APPELLANT
VERSUS
S. NARAYANA REDDY AND OTHERS, RESPONDENTS.
Civil Appeal No. 409 of 1991 (Arising out of SLP (C) No. 7582 of 1990),
decided on January 18, 1991.
concerned amendment in the Act - Section 29 – Claim of compensation - Against the judgment - Trial court - Trial court by its judgment and order rejected their application on ground that since preliminary decree had already been passed and specific shares of parties had been declared, it was not open to unmarried daughters to claim share in property by virtue of amended provisions of Act - Unmarried daughters preferred revision against order of trial court before High Court - High Court by an elaborate judgment dated allowed the revision petition, set aside order of trial court and declared that in view of the newly added Section 29-A of Act the daughters were entitled to share in the joint family property - High Court further directed trial court to determine the shares of the unmarried daughters accordingly - Appellant has challenged the order of the High Court in this appeal – Held, 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 parties or by a decree of court - When a suit for partition is filed in a court, a preliminary decree is passed determining shares of members of family - 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 of the shares are put in possession of the respective property partition is not complete - 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 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 benefiting women which is a vulnerable section of the society in all its 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 - 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 court are of the view that unless a partition of the property is effected by metes and bounds daughters cannot be deprived of the benefits conferred by Act. Any other view is likely to deprive a vast section of fair sex of 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 – Appeal dismissed
ORDER
1. Leave granted.
2. This appeal is directed against the judgment and order dated February 2, 1990 of the Andhra Pradesh High Court allowing the revision petition filed by respondents 2 to 5 and setting aside the order of the trial court rejecting the respondents claim for a share in the property in dispute.
3. The appellant filed a suit in the Court of the Subordinate Judge at Mahabubnagar against his father and brother for partition of the ancestral joint family property claiming one-third share in it. The suit was contested by the father and the brother, but the Subordinate Judge accepted the appellants claim and passed a preliminary decree by his order dated December 26, 1973 declaring that the appellant as well as his father and brother each were entitled to one-third share in the property. The defendants preferred appeal before the High Court against the preliminary decree. The High Court by its judgment dated October 15, 1984 confirmed the findings of the trial court with the direction that an appropriate provision should be made for the maintenance and marriage expenses of respondents 2 to 5 who were unmarried sisters of the appellant. The High Court directed that the expenses incurred for the maintenance and marriage of respondents 2 to 5 shall be borne equally by the appellant, the father and the brother.
4. During the pendency of the proceedings before the trial court and prior to the passing of the final decree, the Hindu Succession Act (hereinafter referred to as the "Act") was amended by the State legislature as a result of which unmarried daughters became entitled to a share in the joint family property. Respondents 2 to 5 filed an application before the trial court claiming their share in the property. The trial court by its judgment and order dated August 24, 1989 rejected their application on the ground that since the preliminary decree had already been passed and specific shares of the parties had been declared, it was not open to the unmarried daughters to claim share in the property by virtue of the amended provisions of the Act. The unmarried daughters preferred revision against the order of the trial court before the High Court. The High Court by an elaborate judgment dated February 2, 1990 allowed the revision petition, set aside the order of the trial court and declared that in view of the newly added Section 29-A of the Act the 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 has challenged the order of the High Court in this appeal.
5. Learned counsel for the appellant urged that since the preliminary decree had already been passed prior to the amended provision, the High Court committed an error in directing the trial court to allot shares to the unmarried daughters. Admittedly, under the unamended Act, women and unmarried daughters of a Hindu Mitakshara family were not entitled to any share in the joint family property. The State of Andhra Pradesh removed the injustice to the daughters so far as that State was covered by introducing the concerned amendment in the Act. The newly introducing Section 29-A reads as under :
"29-A. Equal rights to daughter in coparcenary property. - Notwithstanding anything contained in Section 6 of this Act -
(i) in a Joint Hindu Family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son; inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotted to a son :
Provided that the share which a predeceased son or a predecea
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