The defendants No.2, 5 and 6 in Final Decree

Proceedings No.3/2016 on the file of the Senior Civil

Judge, Periyapatna, have filed this writ petition

challenging the order dated 25.07.2022, passed

therein, by which the Final Decree Court allowed the

application and modified the shares in view of the

judgment of the Hon9ble Apex Court in the case of

VINEETHA SHARMA

VS. RAKESH SHARMA & ORS.,

reported in (2020) 9 SCC 1.

2. A suit in O.S.No.28/2011 was filed by the

daughter claiming an undivided share in the suit

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schedule properties. The said suit was decreed in part

and it was declared that the plaintiff is entitled to 1/6^th

share in the suit items 1 & 4 to 9, including

Sy.No.78/4. Appeals in R.A.No.453 and 487 of 2014

were preferred by the defendants. The Appellate

Court set aside the judgment and decree of the Trial

Court and declared that the plaintiff is entitled to

1/24^th share in suit item Nos.1, 4, 5, 6, 7, 8, 9

including Sy.No.78/4. The Appellate Court while doing

so, relied upon the judgment of this court in

PUSHPALATHA N. V. VS. V. PADMA & ORS., reported in

ILR 2010 KAR 1484, and held that the plaintiff is

entitled to a share out of the notional share of her

father. Plaintiff thereafter filed FDP No.3/2016 to

enforce the preliminary decree. In the meanwhile, the

Hon9ble Apex Court in the case of VINEETHA SHARMA

(SUPRA) held that a daughter is entitled to an equal

right along with the son from the date of the Hindu

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Succession Act, 1956, coming into force. In that view

of the matter, the Final Decree Court modified its

earlier judgment and decree and held that the plaintiff

is entitled to 1/6^th share in items No.1 & 4 to 9. Being

aggrieved by the said order, the present petition is

filed.

3. Learned counsel for the petitioner submitted

that once the decree was modified by the Appellate

Court, the plaintiff was required to seek review of the

judgment and decree passed by the Appellate Court

and could not have sought modification before the

Final Decree Court which was lower in rank than the

Appellate Court. He submitted that the Final Decree

Court would, therefore, not have modified the

preliminary decree.

4. Learned counsel for the petitioner did not

dispute the fact that the Appellate Court relied upon

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the judgment of this court in PUSHPALATHA (SUPRA) to

hold that the plaintiff was entitled to a notional share.

Learned counsel for the petitioner did not dispute the

fact that the Hon9ble Apex Court in the case of

VINEETHA SHARMA (SUPRA) categorically held that a

daughter is entitled for undivided equal share along

with the son, with effect from the date of the Hindu

Succession

Act,

1956,

coming

into

force.

Consequently, until the defendant established that the

suit properties were subject to partition or alienation

before 20.12.2004, the plaintiff was entitled for an

equitable partition along with the defendants. The

final decree proceedings is a continuation of the

preliminary decree as held by the Hon9ble Supreme

Court of India in SHUB KARAN BUBNA @ SHUB KARAN

PRASAD BUBNA VS. SITA SARAN BUBNA & ORS. (2009)

9 SCC 689 and therefore, the Final Decree Court is

entitled to modify the shares as per the judgment of

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the Hon9ble Apex Court. There is no error committed

by the Final Decree court in modifying the shares.

Hence, the writ petition lacks merit and is dismissed.

SD/-

RD