9911796707
TMI Blog2011 (10) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the decisions of this Court in Phoolchand1 and S.Sai Reddy2. We accordingly allow this appeal; set aside the impugned judgment of the High Court and restore the order of the trial court dated June 15, 2009. The trial court shall now proceed for the preparation of the final decree in terms of its order dated June 15, 2009. - CIVIL APPEAL NO. 8538 OF 2011 (Arising out of SLP (Civil) No. 9586 of 2010) - - - Dated:- 12-10-2011 - R.M. LODHA AND JAGDISH SINGH KHEHAR, JJ. For The Appellant : Ms. Promila, Adv. For The Respondent : Mr. K. Shivraj Choudhuri, Adv. 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 1st 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 schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endant 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 special rights of the members of a Mitakshara Coparcenary. The Parliament felt that non-inclusion of daughters in the Mitakshara Coparcenary property was causing discrimination to them and, accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation.-- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (1) of Section 6. 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. Sub- section (5) of Section 6 leaves no room for 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 Section 6 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 subsection (5) of Section 6, 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are thereby augmented. . . . .. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; ........... there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. . . for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. . . . .a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree................ . 18. This Court in the case of S. Sai Reddy vs. S. Narayana Reddy and Others ((1991) 3 SCC 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been passed and before the final decree could be passed the amending Act came into force as a result of which clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings in the suit get extinguished only on passing of the final decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should be settled once for all in that suit alone and no other proceedings. 21. Section 97 of C. P.C. that provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree 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. 22. It is true that 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. 23. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
