REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8538 OF 2011

(Arising out of SLP (Civil) No. 9586 of 2010)

Ganduri Koteshwaramma & Anr. …. Appellants

Versus

Chakiri Yanadi & Anr. ….Respondents

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,

1

Ongole impleading his father Chakiri Venkata Swamy (1

st

defendant), his brother Chakiri Anji Babu (2

nd

defendant) and his

two sisters – the present appellants – as 3

rd

and 4

th

defendant

respectively. In respect of schedule properties ‘A’, ‘C’ and ‘D’ –

coparcenary property – the plaintiff claimed that he, 1

st

defendant

and 2

nd

defendant have 1/3

rd

share each. As regards schedule

property ‘B’—as the property belonged to his mother—he claimed

that all the parties have 1/5

th

equal share.

4. The 1

st

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 1/4

th

share in the 1/3

rd

share left by the 1

st

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

2

share along with 2

nd

, 3

rd

and 4

th

defendant in 1/5

th

share left by the

1

st

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 (3

rd

and 4

th

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.

3

9. The application made by 3

rd

and 4

th

defendant was

contested by the plaintiff. Insofar as 2

nd

defendant is concerned he

admitted that the 3

rd

and 4

th

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 (3

rd

and 4

th

defendant) and held that they were entitled for re-allotment of

shares in the preliminary decree, i.e., they are entitled to 1/4

th

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

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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,

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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 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

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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

great-grandson 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 great-grandson, 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.”

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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

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 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

9

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

10

Court in the case of Phoolchand and Anr. Vs. Gopal Lal

1

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

2

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

1

AIR 1967 SC 1470

2

(1991) 3 SCC 647

11

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

13

apprised of the decisions of this Court in Phoolchand

1

and S. Sai

Reddy

2

. 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-à-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

Phoolchand

1

, 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

14

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

15

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 Phoolchand

1

and S.Sai Reddy

2

.

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 June 15,

2009. No costs.

………………………J

(R.M. LODHA)

…. …………………………….J.

(JAGDISH SINGH KHEHAR )

NEW DELHI

OCTOBER 12, 2011

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