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Succession

sanjeev murthy desai ,
  09 November 2011       Share Bookmark

Court :
Supreme Court
Brief :
Hindu Succession - Coparcenary property - Daughter
Citation :
2011 STPL(Web) 886 SC

2011 STPL(Web) 886 SC 1
Ganduri Koteshwaramma Vs. Chakiri Yanadi
Supreme Court Judgements @ www.stpl-india.in
2011 STPL(Web) 886 SC
SUPREME COURT OF INDIA
(R.M. LODHA & 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.
Hindu Succession - Coparcenary property - Daughter
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 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 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 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, decided to bring in necessary changes in the law. The statement of objects and
reasons of the 2005 Amendment Act, inter alia, reads as under :
".......The retention of the Mitakshara coparcenary property without including the females
in it means that the females cannot inherit in ancestral property as their male counterparts
do. The law by excluding the daughter from participating in the coparcenary ownership
not only contributes to her discrimination on the ground of gender but also has led to
oppression and negation of her fundamental right of equality guaranteed by the
Constitution. Having regard to the need to render social justice to women, the States of
Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes
in the law giving equal right to daughters in Hindu Mitakshara coparcenary property."
13. With the above object in mind, the Parliament substituted the existing Section 6 of the 1956
Act by a new provision vide 2005 Amendment Act. After substitution, the new Section 6 reads as
follows :
"6. Devolution of interest in coparcenary property.—
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in
a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-
-
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she
had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as
that of a son, and any reference to a Hindu Mitakshara coparcener shall be
deemed to include a reference to a daughter of a coparcener: Provided that
nothing contained in this sub-section shall affect or invalidate any disposition or
alienation including any partition or testamentary disposition of property which
had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1)
shall be held by her with the incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act or any other law for the time being in
force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment)
Act, 2005, his interest in the property of a 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 predeceased
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 entitled to claim
partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court
shall recognise any right to proceed against a son, grandson or great-grandson for the
recovery of any debt due from his father, grandfather or great-grandfather solely on the
ground of the pious obligation under the Hindu law, of such son, grandson or greatgrandson
to discharge any such debt: Provided that in the case of any debt contracted
before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing
contained in this sub-section shall affect –
(a) the right of any creditor to proceed against the son, grandson or greatgrandson,
as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any
such right or alienation shall be enforceable under the rule of pious obligation in
the same manner and to the same extent as it would have been enforceable as if
the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation.--For the purposes of clause (a), the expression "son", "grandson" or
"great-grandson" shall be deemed to refer to the son, grandson or great-grandson,
as the case may be, who was born or adopted prior to the commencement of the
Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected
before the 20th day of December, 2004.
Explanation. --For the purposes of this section "partition" means any partition made by
execution of a deed of partition duly registered under the Registration Act, 1908 (16 of
1908) or partition effected by a decree of a court."
14. The 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 the 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. The declaration in Section 6 that the daughter of the coparcener shall
have same rights and liabilities in the coparcenary property as she would have been a son is
unambiguous and unequivocal. Thus, 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.
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 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 sub-section (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 deed of partition duly registered under
the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position
with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question
that we have to answer is as to whether the preliminary decree passed by the trial court on March
19, 1999 and amended on September 27, 2003 deprives the appellants of the benefits of 2005
Amendment Act although final decree for partition has not yet been passed.
16. The legal position is settled that 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. In the present case, admittedly, the partition has not been effected before
December 20, 2004 either by a registered instrument of partition or by a decree of the court. The
only stage that has reached in the suit for partition filed by the respondent no.1 is the
determination of shares vide preliminary decree dated March 19, 1999 which came to be
amended on September 27, 2003 and the receipt of the report of the Commissioner.
17. A preliminary decree determines the rights and interests of the parties. The suit for partition is
not disposed of 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. We are fortified in our view by
a 3- Judge Bench decision of this Court in the case of Phoolchand and Anr. Vs. Gopal Lal [AIR
1967 SC 1470] wherein this Court stated as follows:
"We are of opinion that there is nothing in the Code of Civil Procedure which prohibits
the passing of more than one preliminary decree if circumstances justify the same and
that it may be necessary to do so particularly in partition suits when after the preliminary
decree some parties die and shares of other parties 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
647 11] had an occasion to consider the question identical to the question with which we are
faced in the present appeal. That was a case where during the pendency of the proceedings in the
suit for partition before the trial court and prior to the passing of final decree, the 1956 Act was
amended by the State Legislature of Andhra Pradesh as a result of which unmarried daughters
became entitled to a share in the joint family property. The unmarried daughters respondents 2 to
5 therein made application before the trial court claiming their share in the property after the State
amendment in the 1956 Act. The trial court by its judgment and order dated August 24, 1989
rejected their application on the ground that the preliminary decree had already been passed and
specific shares of the parties had been declared and, thus, it was not open to the unmarried
daughters to claim share in the property by virtue of the State amendment in the 1956 Act. The
unmarried daughters preferred revision against the order of the trial court before the High Court.
The High Court set aside the order of the trial court and declared that in view of the newly added
Section 29-A, the unmarried daughters were entitled to share in the joint family property. The
High Court further directed the trial court to determine the shares of the unmarried daughters
accordingly. The appellant therein challenged the order of the High Court before this Court. This
Court considered the matter thus;
".........A partition of the joint Hindu family can be effected by various modes, viz., by a
family settlement, by a registered instrument of partition, by oral arrangement by the
parties, or by a decree of the court. When a suit for partition is filed in a 12 court, a
preliminary decree is passed determining shares of the members of the family. The final
decree follows, thereafter, allotting specific properties and directing the partition of the
immovable properties by metes and bounds. Unless and until the final decree is passed
and the allottees of the shares are put in possession of the respective property, the
partition is not complete. The preliminary decree which determines shares does not bring
about the final partition. For, pending the final decree the shares themselves are liable to
be varied on account of the intervening events. In the instant case, there is no dispute that
only a preliminary decree 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 and bounds, the
daughters cannot be deprived of the benefits conferred by the Act. Any other view is
likely to deprive a vast section of the fair sex of the benefits conferred by the amendment.
Spurious family settlements, instruments of partitions not to speak of oral partitions will
spring up and nullify the beneficial effect of the legislation depriving a vast section of
women of its benefits".
19. The above legal position is wholly and squarely applicable to the present case. It surprises us
that the High Court was not apprised of the decisions of this Court in Phoolchand1 and S. Sai
Reddy2. High Court considered the matter as follows:
"In the recent past, the Parliament amended Section 6 of the Hindu Succession Act (for
short `the Act'), according status of coparceners to the female members of the family
also. Basing their claim on amended Section 6 of the Act, the respondents 1 and 2 i.e.,
defendants 3 and 4 filed I.A. No. 564 of 2007 under Order XX Rule 18 of C.P.C., a
provision, which applies only to preparation of final decree. It hardly needs an emphasis
that a final decree is always required to be in conformity with the preliminary decree. If
any party wants alteration or change of preliminary decree, the only course open to him
or her is to file an appeal or to seek other remedies vis-`-vis the preliminary decree. As
long as the preliminary decree stands, the allotment of shares cannot be in a manner
different from what is ordained in it."
20. The High Court was clearly in error in not properly appreciating the scope of Order XX Rule
18 of C.P.C. 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. In Phoolchand1, this Court has stated the legal position that C.P.C. creates no impediment
for even more than one preliminary decree if after passing of the preliminary decree events have
taken place necessitating the readjustment of shares as declared in the preliminary decree. The
court has always power to revise the preliminary decree or pass another preliminary decree if the
situation in the changed circumstances so demand. 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. 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 view of the High Court is against law and the decisions of this Court in Phoolchand1 and
S.Sai Reddy.
24. 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
 

 
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