Modification of a preliminary decree in a partition suit is permissible under Section 6 of the Hindu Succession Act, as amended in 2005, which has retrospective effect.

ORDER :

R.K.PATTANAIK, J.

1. Heard Ms. Mohanty, learned counsel for the petitioner.

2. No notice is issued to the opposite parties, as the matter is disposed of at the stage of admission.

3. Instant petition is filed by the petitioner challenging the correctness of the impugned order dated 3^rd October, 2024 under Annexure-6 passed in connection with C.S. No.1134/1767 of 2017-1 by learned Senior Civil Judge, Balasore, whereby, an application seeking modification of the preliminary decree filed by her as per and in terms of under Order 20 Rule 18 CPC read with Section 97 C.P.C. has been declined.

4. Recorded the submission of Ms. Mohanty, learned counsel for the petitioner, which is to the effect that modification of the preliminary decree is permissible, inasmuch as, Section 6 of the Hindu Succession Act as amended in 2005 is retrospective in nature. The submission of Ms. Mohanty, learned counsel for the petitioner that the preliminary decree in view of of the Hindu Succession Act is ought to have been modified instead of being rejected vide Annexure-6 and advancing such an argument, a decision of the Apex Court in Ganduri Koteshwaramma & Another Vrs. Chakiri Yanadi & Another 2011 (II) CLR (SC) 970 is referred to.

5. Perused the plaint, a copy of which is at Annexure-1 and the suit was for partition and permanent injunction with a declaration regarding a compromise decree in C.S. No. 1079 of 2010 to be void. The petitioner as defendant No.12 filed W.S. and ultimately, upon disposal of the suit, a preliminary decree dated 13th June, 2019 was passed, which was sought to be modified demanding a share in view of Section 6 of the Hindu Succession Act. In fact, an application in terms of Order 20 Rule 18 read with Section 97 CPC was filed by the petitioner seeking such modification in the preliminary decree but it was followed by the impugned order at Annexure-6.

6. Law is well settled that Section 6 of the Hindu Succession Act has a retrospective effect, which is held and concluded by the Apex Court in Vineeta Sharma Vrs. Rakesh Sharma & others (2020) 10 SCR 135. In so far as the modification of the preliminary decree as per Annexure-5 is concerned, it was moved by the petitioner as one of the daughters having equal share. The Apex Court in Ganduri Koteshwaramma (supra) held the same to be permissible. For better appreciation, the Court is inclined to reproduce the relevant extract of the decision in the above cited case law, which is hereunder:

"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 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 leaves no room for 8 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 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 , 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 regist