Earlier partition decrees are binding on heirs unless substantial rights are violated; amendments in succession laws do not retroactively affect holdings from prior valid decrees.

JUDGMENT :

D.Dash, J.

The Appellant, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and preliminary decree passed by the learned Additional District Judge, Kuchinda in RFA No.09 of 2015.

By the same, the Appeal filed by the present Appellant (Defendant) in assailing the judgment and preliminary decree passed by the learned Civil Judge, Senior Division, Kuchinda in Civil Suit No.66 of 2013 under section 96 of the Code has been dismissed.

The Respondent No.1 as the Plaintiff had filed the suit for partition of ‘C’ schedule land in metes and bounds and allotment of his 1/8^th share over the same. The Trial Court has decreed the suit preliminarily and dealing with the counter claim filed by the present Appellant (Defendant No.3) has ultimately held the Respondent No.1, the Appellant and other Respondents as entitled to 1/10^th share each out of the allotted share of their parents from schedule ‘C’ land.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.

3. The Plaintiff’s case is that the suit land was the ancestral property of Dasarathi Naik. The Plaintiff and all the three Defendants are his legal heirs. During the life time of Dasarathi Naik, the Plaintiff had filed a partition suit which was numbered as Title Suit No.22/93 in the Court of learned Civil Judge, Senior Division, Kuchinda. In that suit, the Defendant No.1 and 2 and their parents had been arraigned as the Defendants and the Court in seisin of said suit had passed a preliminarily, allotting the Plaintiff and each of the Defendants therein with 1/5^th share out of schedule ‘A’ properties therein as of their entitlement. Said preliminary decree has been made final and the Plaintiff has obtained the possession of the properties towards his share which has been mentioned in schedule ‘B’ on 05.08.1997. The contesting Defendants were jointly allotted 4/5^th share out of the ancestral property mentioned in schedule ‘C’. After the death of parents, the Plaintiff has filed the suit claiming his interest over the allotted land of his parents.

4. The Defendant No.3 is the lone contestor in the suit. She has asserted that the Plaintiff with an ulterior motive had claimed partition over schedule ‘C’ property by suppressing some material facts. It is also stated that the genealogy given in the plaint is not complete and the entire proceeding in T.S No.22/93 had been carried on behind her back and therefore she is not bound by the result of the said suit. It is also stated that the Civil Court Commissioner’s report which had been made part of the final decree in that T.S. No.22/93 was not in consonance with the preliminary decree so passed therein. Her claim is that she is entitled to 1/6^th share over the suit land. The Defendant No.3 therefore had prayed for allotment of 1/3^rd share in her favour and declaration of right, title, interest over the suit land along with Defendant No.1 and 2. This was prayed for in shape of counter claim.

5. The Plaintiff filing the written statement to the counter claim filed by the Defendant No.3 has stated that during the earlier suit i.e. T.S. No.22/93 which stood finally decreed and Execution Case No.03/96 being levied, the parties were delivered with the properties in accordance with their said allotted shares as per the final decree. The parents were then alive and all these were prior to the coming of force of the Hindu Succession (Amendment) Act, 2005. He, therefore, stated that the daughter can only get the interest from the property fro