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2011 (7) Supreme 40
SUPREME COURT OF INDIA
R.M. Lodha and Jagdish Singh Khehar, JJ
Ganduri Koteshwaramma & Anr. — Appellants
versus
Chakiri Yanadi & Anr. — Respondents
Civil Appeal No. 8538 of 2011
(Arising out of SLP (Civil) No. 9586 of 2010)
Decided on : 12-10-2011
(b) Hindu Succession Act, 1956 ¯ Section 6 (As amended by Amendment Act 2005) ¯ New Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005 ¯ The Legislature has now conferred substantive right in favour of the daughters ¯ According to new Section 6, the daughter of a copercener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son ¯ On and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. (Para 14)
(c) Hindu Succession Act, 1956 ¯ Section 6 (As amended by Amendment Act 2005) ¯ Proviso ¯ Exceptions ¯ The excepted categories to which new Section 6 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. (Para 15)
(d) Hindu Law ¯ Partition ¯ Modes of ¯ Partition of a Joint Hindu family can be effected by various modes, inter-alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the court. (Para 16)
(e) Partition suit ¯ Preliminary decree ¯ A preliminary decree determines the rights and interests of the parties ¯ The suit for partition is not disposed off by passing of the preliminary decree, it is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds ¯ After the passing of the preliminary decree, the suit continues until the final decree is passed ¯ If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation ¯ A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. (Paras 17 and 20)
(f) Civil Procedure Code, 1908, Order XX, Rule 18 ¯ 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. (Para 20)
(g) Preliminary decree ¯ Modification of ¯ A preliminary decree passed in suit is capable of modification ¯ A final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree. (Paras 20 and 22)
(h) Civil Procedure Code 1908, Section 97 ¯ Section 97 does not create any hindrance or obstruction in the power of the court to modify, amend or alter the preliminary decree or pass another preliminary decree if the changed circumstances so require. (Para 21)
Key Points: - The 2005 Amendment Act substituted Section 6 to grant daughters coparcenary rights from 9 September 2005. (!) (!) - New Section 6 entitles a daughter to coparcenery status by birth and parity of rights with sons, with certain provisos about pre-2004 dispositions and partitions. (!) (!) - The case addresses whether appellants can avail benefits of the 2005 Amendment Act where partition shares were determined by a preliminary decree issued before 9 September 2005 and amended later. (!) (!) - A partition suit progresses from a preliminary decree to a final decree; a preliminary decree determines shares but does not finalize partition, and the suit continues for final decree. (!) - The court may modify or issue a second preliminary decree in response to changed or supervening circumstances before final decree. (!) (!) - There is a provision that partition effected before 20 December 2004 is exempt from the 2005 Amendment Act. (!) (!) - The court held that the High Court erred in not recognizing the possibility of readjustment of shares via another preliminary decree under changed circumstances post-2005 Amendment.
JUDGMENT
R.M. Lodha, J.
Leave granted.
2. The question that arises in this appeal, by special leave, is: whether the benefits of Hindu Succession (Amendment) Act, 2005 are available to the appellants.
3. The appellants and the respondents are siblings being daughters and sons of Chakiri Venkata Swamy. The 1 st respondent (plaintiff) filed a suit for partition in the court of Senior Civil Judge, Ongole impleading his father Chakiri Venkata Swamy (1st defendant), his brother Chakiri Anji Babu (2nd defendant) and his two sisters - the present appellants - as 3rd and 4th defendant respectively. In respect of schedule properties ‘A’, ‘C’ and ‘D’ - coparcenary property - the plaintiff claimed that he, 1st defendant and 2nd defendant have 1/3rd share each. As regards schedule property ‘B’—as the property belonged to his mother—he claimed that all the parties have 1/5th equal share.
4. The 1st defendant died in 1993 during the pendency of the suit.
5. The trial court vide its judgment and preliminary decree dated March 19, 1999 declared that plaintiff was entitled to 1/3 rd share in the schedule ‘A’, ‘C’ and ‘D’ properties and further entitled to 1/4th share in the 1/3rd share left by the 1st defendant. As regards schedule property ‘B’ the plaintiff was declared to be entitled to 1/5 th share. The controversy in the present appeal does not relate to schedule ‘B’ property and is confined to schedule ‘A’, ‘C’ and ‘D’ properties. The trial court ordered for separate enquiry as regards mesne profits.
6. The above preliminary decree was amended on September 27, 2003 declaring that plaintiff was entitled to equal share along with 2nd, 3rd and 4th defendant in 1/5th share left by the 1st defendant in schedule property ‘B’.
7. In furtherance of the preliminary decree dated March 19, 1999 and the amended preliminary decree dated September 27, 2003, the plaintiff made two applications before the trial court (i) for passing the final decree in terms thereof; and (ii) for determination of mesne profits. The trial court appointed the Commissioner for division of the schedule property and in that regard directed him to submit his report. The Commissioner submitted his report.
8. In the course of consideration of the report submitted by the Commissioner and before passing of the final decree, the Hindu Succession (Amendment) Act, 2005 (for short, ‘2005 Amendment Act’) came into force on September 9, 2005. By 2005 Amendment Act, Section 6 of the Hindu Succession Act, 1956 (for short ‘1956 Act’) was substituted. Having regard to 2005 Amendment Act which we shall refer to appropriately at a later stage, the present appellants (3rd and 4th defendant) made an application for passing the preliminary decree in their favour for partition of schedule properties ‘A’, ‘C’ and ‘D’ into four equal shares; allot one share to each of them by metes and bounds and for delivery of possession.
9. The application made by 3rd and 4th defendant was contested by the plaintiff. Insofar as 2nd defendant is concerned he admitted that the 3rd and 4th defendant are entitled to share as claimed by them pursuant to 2005 Amendment Act but he also submitted that they were liable for the debts of the family.
10. The trial court, on hearing the parties, by its order dated June 15, 2009, allowed the application of the present appellants (3rd and 4th defendant) and held that they were entitled for re-allotment of shares in the preliminary decree, i.e., they are entitled to 1/4th share each and separate possession in schedule properties ‘A’, ‘C’ and ‘D’.
11. The plaintiff (present respondent no. 1) challenged the order of the trial court in appeal before the Andhra Pradesh High Court. The Single Judge by his order dated August 26, 2009 allowed the appeal and set aside the order of the trial court.
12. 1956 Act is an Act to codify the law relating to intestate succession among Hindus. This Act has brought about important changes in the law of succession but without affecting the sp
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