The main legal point established in the judgment is that the amendment to Section 6 of the Hindu Succession Act, 2005, granting daughters the status of coparceners, allowed for the amendment of a preliminary decree in a partition suit due to changed circumstances, and the suit continued until the final decree was passed.

JUDGMENT :

1. Rule. Rule made returnable forthwith. With the consent of the parties taken up for final hearing at the admission stage.

2. By this writ petition, the petitioner is challenging the order passed by the learned Adhoc District Judge, Shrirampur in Civil Misc. Application No. 5 of 2018.

3. Facts in nutshell are that respondent Nos. 1 and 2 had filed Regular Civil Suit No. 82 of 2009 for partition and separate possession which was decreed by Civil Judge, Senior Division, Shrirampur on 18th October, 2013. Appeal was preferred against the said decree bearing Regular Civil Appeal No. 70 of 2013. The said appeal was decided on 27th June, 2016 and shares of the respondent Nos. 1 and 2 came to be determined. Accordingly, Regular Darkhast No. 150 of 2013 was filed for executing the preliminary decree. The matter was referred to Collector for effecting partition. Possession is not yet delivered to the respondent Nos. 1 and 2.

4. Respondent Nos. 1 and 2 filed an application alleging therein that daughters have equal right in ancestral property in view of amendment to Section 6 of Hindu Succession Act, 2005. In the appellate court shares were determined as per notional partition. Now the law as regards daughters in ancestral property is settled. Now the daughters being coparceners have equal share in the ancestral property. Accordingly application was filed for amending the preliminary decree. This application was resisted by respondent No.3. According to the respondent No. 3 the respondent Nos. 1 and 2 ought to have preferred second appeal against the judgment and decree in R.C.A. No. 70 of 2013. Application is filed with an oblique motive. They, therefore, prayed for rejection of the application.

5. The learned Trial Court by its order dated 5th July, 2022 allowed the application and amended the preliminary decree by awarding 1/6 share. This order is impugned in this petition.

6. I have heard learned counsel Shri. Tarde for the petitioner and learned counsel Shri. Kale for respondent Nos. 1 and 2.

7. Learned counsel Shri. Tarde submits that the plaintiffs ought to have preferred second appeal against the judgment and decree in R.C.A. No.70 of 2013. Instead of pursuing this remedy, respondent Nos. 1 and 2 filed application for amending the decree. This course is impressible.

8. Learned counsel Shri. Kale for respondent Nos. 1 and 2 submitted that in view of judgment of the Hon’ble Apex Court in the case of Vineeta Sharma Versus Rakesh Sharma and Others reported in (2020) 9 SCC 1, the Hon’ble Apex Court has held that application for amending preliminary decree can be filed and decree can be amended if there is change in law or any death or birth of coparcener.

9. Section 6 of Hindu Succession Act was amended in the year 2005 and the daughters have been given the status of coparceners. The question is whether preliminary decree can be amended in view of change in the law during the pendency of appeal or during the pendency of execution proceedings. This issue is no more res integra. In the case of Vineeta Sharma Versus Rakesh Sharma and Others (supra) the Hon’ble Apex Court observed in paragraph No. 19 thus:-

“19. The High Court was clearly in error in not properly appreciating the scope of Order 20 Rule 18 of CPC. 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 Phoolchand, this Court has stated the legal position that CPC 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