THE HON'BLE SRI JUSTICE RAVI NATH TILHARI & THE HON'BLE SRI JUSTICE BALAJI MEDAMALLI I.A. Nos. 1, 2, 3 & 4 of 2026 in A.S. No. 118 of 1990 JUDGMENT

Partition suit, preliminary decree modification, Hindu Succession Act, 2005 Amendment, Vineeta Sharma, coparcenary rights, daughter's share, final decree proceedings, Section 151 CPC, Section 6

05 May, 2026
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Y.Rukinamma and others; M.Indira and another Vs. Smt. Sagire Nagendramma and others

Andhra Pradesh High Court A.S. No. 118 of 1990

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Case Background

As per case facts, a partition suit was filed in 1988, resulting in a preliminary decree where the widow received a share, but the daughter did not. An appeal modified ...

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Document Text Version

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

THE HON’BLE SRI JUSTICE BALAJI MEDAMALLI

I.A. Nos. 1, 2, 3 & 4 of 2026

A.S. No. 118 of 1990

JUDGMENT: (per Hon’ble Sri Justice Ravi Nath Tilhari)

Heard Sri Virupaksha Dattatreya Gouda, representing Sri

Vivekananda Virupaksha, learned counsel for the applicants in I.A.Nos.1

& 2 of 2026, Sri T. Nikhilesh, learned counsel for the applicants in

I.A.Nos.3 & 4 of 2026, Sri Salar Aatif, learned counsel, appearing on

behalf of Sri Ganta Ediga Rakesh, learned counsel for respondent No.1

through virtual mode and Sri P. Rajasekhar, learned counsel for

respondents No.2 & 3.

I. FACTS:

2. One Vale Mareppa had half share in the property in question. One

Vale Nagamma is his widow. Busappa is their son and Mandlem

Veeramma @ Eramma is their daughter. The widow and daughter

plaintiffs 1 and 2 respectively filed O.S.No.33 of 1988 against the

daughters of Busappa (Busappa died in 1985) impleading them as

defendants for partition and separate possession. The suit was decreed

partly vide decree dated 17.10.1989. The preliminary decree was passed.

The 1

plaintiff (widow) was held entitled for partition and separate

possession of her 1/4

share in the plaint schedule properties. The 2

plaintiff (daughter) was not allowed any share. Based on Gift by late

Busappa (son, since deceased), in favour of one of his daughters, the 2

defendant in the suit, the learned trial Court directed that Ac.5.00 of land

out of items 1 to 8 of the plaint schedule properties out of and towards the

share determined for late Busappa, shall be worked out at the time of

passing of final decree. In other words, as per the trial Court decree, in

the share determined for late Busappa (son) after excluding Ac.5.00 of

land from the share of late Busappa, in the rest of his share of the plaint

schedule properties all his daughters were to be given equally. Plaintiff

Nos.1 and 2 (widow and daughter) filed appeal AS No.118 of 1990 and

the defendants filed appeal AS No.2209 of 1989. The appeal filed by the

plaintiffs (widow and the daughter) AS No.118 of 1990 was partly allowed,

vide decree dated 26.09.2003. The trial Court decree was modified to the

extent that the plaintiffs and Busappa, were held entitled to 1/6

each (i.e. 1/3

each in ½ share of late Vale Mareppa). AS No.2209 of

1989 filed by the defendants was dismissed, vide the common judgment,

dated 26.09.2003.

3. The Appellate Court (Coordinate Bench of this Court) in the

appeals held that, the widow (1

plaintiff) was interested in the property

after the death of her husband and as per Section 14 (1) of the Hindu

Succession Act, her share had ripened and she became the absolute and

full owner of the property. With respect to the 2

plaintiff (daughter) the

Appellate Court did not agree with the trial Court in not giving any share

to her and holding that there was neither any prohibition nor any bar

created by law under Hindu Succession Act that disentitled a person from

getting any share from the Joint Hindu Family, if such person was

addicted to any vices, the 2

plaintiff (daughter) was also held entitled to

equal share with his brother in the half share of late Mareppa. The

Appellate Court thus granted equal shares 1/3

each in half share of

Mareppa to the 1

plaintiff (widow), the 2

plaintiff (daughter) and

Busappa (son). The preliminary decree of the trial Court was thus

modified by the Appellate Court (this Court). SLP Nos.11792-11793 of

2004 were filed challenging the Appellate Court’s decree but those were

dismissed by the Hon’ble Apex Court on 08.12.2006. Review Petition

(Civil) No.362 of 2007 filed by the defendants was dismissed on

17.07.2007 and the Curative Petitions (C) No.140-141 of 2011 were also

dismissed by the Hon’ble Apex Court on 12.01.2012. So, the preliminary

decree passed by the Coordinate Bench of this Court in A.S.No.118 of

1990 attained finality.

4. The defendants filed I.A.No.959 of 2012 under Order 26 Rules 13

and 14 read with Section 151 CPC to appoint an Advocate-Commissioner

and to divide the shares by metes and bounds for passing final decree.

The 2

plaintiff had transferred some properties in favour of subsequent

purchasers. Out of those subsequent purchasers, the present applicants

in I.A.No.1 of 2026, three in number filed I.A.No.492 of 2021 in I.A.No.959

of 2012 for modification of the preliminary decree in O.S.No.33 of 1988

before the Principle Senior Civil Judge, Kurnool i.e., the trial Court. They

claimed to modify the preliminary decree allotting 5/9

share to the 2

plaintiff (daughter, namely, Mandlem Veeramma @ Erramma) claiming as

per the law as laid down by the Hon’ble Apex Court in Vineeta Sharma v.

Rakesh Sharma

conferring the status as coparcener on the daughter

born before or after amendment of Section 6 of the Hindu Succession Act

in the same manner as a son with same rights and liabilities. 2

plaintiff’s

share 5/9

as claimed included the share of 1

plaintiff based on an

alleged Will of 1

plaintiff in favour of the 2

plaintiff. However, during

course of hearing, they filed a Memo restricting the share of Mandlem

Veeramma (2

plaintiff) to ½ share instead of 5/9

share as was

originally claimed in the modification application. I.A.No.492 of 2021 wad

allowed on 14.12.2022 by the Principal Senior Civil Judge, Kurnool,

modifying the preliminary decree to the extent of allotting ½ share to the

deceased 2

plaintiff/Mandlem Veeramma @ Eramma, as a coparcener

by virtue of Amendment Act to Section 6 of the Hindu Succession Act in

respect of the suit schedule properties. The Order dated 14.12.2022 was

passed modifying the preliminary decree as follows, in para-31 of the said

judgment:

(2020) 9 SCC 1

“31. In the result, this petition is allowed without costs modifying the

preliminary decree to the extent of allotting ½ share to the deceased 2

plaintiff/Mandlem Veeramma @ Eramma being coparcener by virtue of

Amendment Act to Section 6 of Hindu Succession Act in respect of suit

schedule properties in O.S.No.33/1988.

The findings in original preliminary decree regarding equities may be

worked out by allotting Ac.5.00 cents out of items No.1 to 8 gifted to 2

defendant i.e. Kodumuru Saraswathi by her father late Busappa from

and out of ½ share of Busappa at the time of passing final decree,

stands as it is in the original preliminary decree and unaltered.”

5. The 1

defendant in the suit filed CRP No.2822 of 2022 challenging

the Order dated 14.12.2022 in I.A.No.492 of 2021. The same was

allowed by this Court vide judgment dated 14.06.2023. The Order under

challenge was set aside. The learned single Judge had taken the view

that the preliminary decree originally passed in the suit was modified in

appeal by the Appellate Court, so, the trial Court had no jurisdiction to

entertain the application for modification of the preliminary decree under

Section 151 CPC. Further direction was issued to the learned trial Court

where the proceedings of final decree were pending to expedite the final

decree proceedings strictly in accordance with law. Paragraphs 24 and 25

of the judgment in CRP No.2822 of 2022 are reproduced as under:

“24. In the considered opinion of this Court, the Principal Senior Civil

Judge, Kurnool has no jurisdiction to entertain the application. In fact,

when a ground is raised in the counter, the trial Court ought to have

framed point or issue. However, no such issue or point was framed by

the trial Court. Since the trial Court has no jurisdiction to entertain the

application under Sectionm 151 of CPC, the order under revision if

allowed to continue would amount to manifest injustice. Accordingly, the

Order dated 14.12.2022 in I.A.No.492 of 2021 in I.A.No.959 of 2012 in

O.S.No.33 of 1988 on the file of Principal Senior Civil Judge, Kurnool is

set aside. I.A.No.491 of 2021 in I.A.No.959 of 2012 in O.S.No.33 of

1988 stands dismissed.

Since the preliminary decree was passed way back in the year 1989

and the same was modified by the High Court on 26.09.2003 and the

SLP filed by the defendants was dismissed and the curative petition was

also dismissed in the year 2012, the Court below shall expedite passing

of final decree, strictly in accordance with law, adhering to the

instructions given by this Court in Circular

R.O.C.No.560/OP/CELL/2022, dated 23.11.2022.

25. Accordingly, the Civil Revision Petition is allowed. No order as to

costs.”

6. SLP (C) No.16744/2023 was filed against the judgment dated

14.06.2023 in CRP No.2822 of 2022. Initially there was direction that the

final decree proceedings shall not be proceeded with without further

orders of the Hon’ble Apex Court by interim Order dated 14.08.2023 and

finally, by Order dated 02.02.2026 the SLP was dismissed. The Order

dated 02.02.2026 is as follows:

“Heard the learned counsel for the parties.

We are not inclined to interfere with the impugned judgment and

order passed by the High Court.

The Special Leave Petition is dismissed and the accompanying

interlocutory application(s), if any, stands disposed of.”

7. The applicants in I.A.Nos.1 & 2 of 2026 (the alleged subsequent

purchasers from P2) filed those applications, with the prayer to modify the

preliminary decree dated 26.09.2003 in A.S.No.118 of 1990 (vide I.A.No.1

of 2026) and for stay of further proceedings for preparation of final decree

in I.A.No.959 of 2012 in O.S.No.33 of 1988 (vide I.A.No.2 of 2026). The

prayer for modification is to allot ½ share to P2 in view of substituted

Section 6 of the Hindu Succession Act, 2005 and the law laid down in

Vineeta Sharma (supra) as also to work out the equities of the applicants

from out of the share of properties to be so allotted to P2.

8. I.A.No.3 of 2026 has been filed with the same prayer for

modification of the same preliminary decree to the same extent and on

the same ground by the legal representatives of the deceased P2. They

have also filed I.A.No.4 of 2026 for stay of the final decree proceedings.

9. The position therefore that emerges can be summarized as follows.

(i) The trial Court passed the preliminary decree dated 17.10.1989

granting 1/4

share (i.e., 1/2 of 1/2) to the 1

plaintiff (widow).

No share was granted to 2

plaintiff (daughter).

(ii) The Appellate Court (High Court) in AS No.118 of 1990

modified the trial Court’s decree vide its decree dated

26.09.2003 and granted 1/3

share each to 1

plaintiff (widow)

and 2

plaintiff (daughter) and Busappa son in the half share of

Mareppa i.e., 1/6

share each, while dismissing A.S.No.2209 of

1989 filed by the defendants in the suit.

(iii) The preliminary decree passed in Appeal was affirmed by

dismissal of SLP by the Hon’ble Apex Court and thereafter by

the dismissal of Review Petition and the Curative petition

(iv) In the application seeking modification of preliminary decree

filed before the learned trial Court, I.A.No.492 of 2021, in Final

Decree proceedings vide I.A.No.959 of 2012, the preliminary

decree was modified granting the daughter, 2

plaintiff, half

share by virtue of 2005 Amendment to Section 6 of the Hindu

Succession Act. Her share was increased from 1/3

to ½ (i.e.,

in 1/2 of Vale Mareppa) because in the meantime the 1

plaintiff

(widow) died. So, the share of the 1

plaintiff i.e. 1/3

was

equally given to her daughter 2

plaintiff and also to the

deceased son Busappa. As per the modification made by the

learned trial Court in the preliminary decree, the 2

plaintiff got

½ share in the 1/2 share of Mareppa, and Busappa the son of

Mareppa also got ½ in ½. The share of Busappa, was to be

taken by his legal heirs as per law i.e., defendants.

(v) The preliminary decree as modified by the trial Court vide Order

dated 14.12.2022 has been set aside in CRP No.2822 of 2022

by this Court (High Court) by Order dated 14.06.2023. The

Order in CRP No.2822 of 2022 has been affirmed by the

Hon’ble Apex Court in SLP (c) No.16744 of 2023 vide Order

dated 02.02.2026.

(vi) The applicants in I.A.No.492 of 2021 have filed the present

I.A.No.1 of 2026 in AS No.118 of 1990 with the same prayer to

modify the preliminary decree dated 26.09.2023 in AS.No.118

of 1990 in accordance with law, declared in Vineeta Sharma

(supra) and allot ½ share to the 2

plaintiff (who has been

arrayed as 5

respondent in I.A.No.492 of 2021), in the plaint

schedule properties and also to work out the equities of the

applicants from out of the properties allotted to the share of the

plaintiff (daughter).

(vii) I.A.No.3 of 2026 has also been filed with the same prayer for

modification of the preliminary decree as passed in appeal, as

aforesaid, by the legal heirs of the deceased 2

plaintiff

(daughter).

10. All the aforesaid applications for modification of the appellate

Court’s preliminary decree dated 26.09.2003 in A.S.No.118 of 1990 are

being considered and decided by this Common Judgment.

II. Submissions of the learned counsels:

i) For the applicants:

11. Sri Virupaksha Dattatreya Gouda, learned counsel for the

applicants in I.A.No.1 of 2026 filed by the subsequent purchasers from

the 2

plaintiff i.e., Mandlem Veeramma, submitted that the preliminary

decree as modified in Appeal AS No.118 of 1990 was passed prior to the

amendment (substitution) of Section 6 of the Hindu Succession Act. After

the amendment of Section 6 of Hindu Succession Act vide its

(Amendment) Act, 2005, the daughter has also got equal share with the

son in the coparcenary. In Vineeta Sharma (supra), the Hon’ble Apex

Court has declared such a right. Further, it has been held that the

provisions contained in the substituted Section 6 of the Hindu

Succession Act 1956 confers status of coparcenary on the daughter born

before or after the amendment in the same manner as son with the same

rights and liabilities and those rights can be claimed by the daughter born

earlier but with effect from 09.09.2005, which amendment, as provided in

Section 6 (1) shall not invalidate any disposition or alienation, including

any partition or testamentary disposition of property which had taken

place before 20.12.2004. Further, since the coparcenery is by birth, it is

not necessary that the father coparcener should be living as on

09.09.2005. Learned counsel submitted that the 2

plaintiff, the vendor

of the applicants was alive on 09.09.2005. The provisions of the

substituted Section 6 were required to be given full effect and

notwithstanding that a preliminary decree was passed prior to the

amendment or substitution of Section 6 of the Hindu Succession Act

1956, but as the final decree had not been passed and partition had not

taken place by metes and bounds for which the proceedings were

pending, the daughter 2

plaintiff was entitled to equal share to that of a

son and consequently, the preliminary decree as passed in the appeal

was required to be modified in terms of Section 6 of Hindu Succession

Act and in the light of the law declared by the Hon’ble Apex Court in the

case of Vineeta Sharma (supra).

12. Learned counsel further submitted that in partition suit, so long as

the partition is pending, the preliminary decree may be modified and fresh

preliminary decree(s) can also be passed, depending upon the fluctuation

of share of parties due to death or birth, having its impact on the shares of

the parties to the suits already determined by a preliminary decree. He

submitted that consequently, the preliminary decree passed in AS No.118

of 1990 though affirmed already by the Hon’ble Apex Court by dismissal

of SLP, review petition and Curative petition, but in view of the

subsequent change in law and the judgment in Vineeta Sharma (supra),

the partition suit being pending at the stage of final decree, second

preliminary decree can be passed modifying the first preliminary decree.

He submitted that such modification is required under law for the reason

that while preparing the final decree, the learned trial Court shall prepare

the final decree in terms of the preliminary decree and so, if the

preliminary decree is not modified in terms of Vineeta Sharma (supra),

the learned trial Court shall not pass the final decree giving effect to that

judgment and the change in law, but would pass the final decree only in

terms of the appellate Court’s preliminary decree and then, in the

absence of modification, the 2

plaintiff, the daughter would be deprived

of the statutory benefits conferred by the substituted Section 6 of the

Hindu Succession Act.

13. The submission of the learned counsel for the applicants is that the

application for modification in the preliminary decree is maintainable in

this Court. The preliminary decree as passed by the Trial Court was

modified by this Court in the present First Appeal and so any modification

or the second preliminary decree, in view of the change in law or the

declaration of law in Vineeta Sharma (supra) or in the changed

circumstances effecting the share of the parties as determined by the

modified appellate preliminary decree shall be maintainable only in this

Court in the appeal. Learned counsel submitted that the application is

maintainable and particularly when the application filed in trial Court for

the same prayer was allowed but it was held not maintainable before the

Trial Court by this Court in CRP No.2822 of 2022 and that judgment has

been affirmed by the Hon’ble Apex Court.

14. Learned counsel for the applicants relied upon the following

judgments:

1. Saila Bala Dassi v. Nirmala Sundari Dassi

2. S. Sudhakar v. Syed Kareem

AIR 1958 SC 394

3. Vineeta Sharma v. Rakesh Sharma (supra)

4. Phoolchand v. Gopal Lal

5. S. Sai Reddy v. S. Narayana Reddy

6. Malda Mahaboob Sab v. Allabaksh

7. Maddineni Koteswara Rao v. Maddineni Bhaskara Rao

8. Ganduri Koteshwaramma v. Chakiri Yanadi

9. Prema v. Nanje Gowda

10. Vineeta Sharma v. Rakesh Sharma

11. Kannan v. Narayani

ii) For Respondent No.1:

15. Sri Salar Aatif, learned counsel appearing for the 1

respondent,

appearing through virtual mode, submitted that the application for

modification of the preliminary decree as passed by this Court in

AS.No.118 of 1990 is not maintainable. He submitted, firstly, that the

subsequent purchasers from the 2

plaintiff have no right to file the

application in view of the change in law as the benefit has been conferred

to the daughter and, secondly, Vineeta Sharma (supra) judgment is not

applicable and is not attracted.

2017 (2) ALD 1

AIR 1967 SC 1470

(1991) 3 SCC 647

AIR 2000 AP 193

(2009) 13 SCC 179

(2011) 9 SCC 788

(2011) 6 SCC 462

2023 SCC OnLine SC 2553

AIR 1980 Ker 76

16. Elaborating his submission, Sri Salar Aatif, learned counsel,

submitted that the Hindu Succession Act 1956 applies and is attracted

when the death occurs after coming into force of the Hindu Succession

Act 1956. In the present case, he submitted that Vale Mareppa died in the

year 1942, so, the position was governed by Hindu Mitakshara law, since

the death occurred before coming into force of the Hindu Succession Act.

The daughter (P2) would not be entitled for the benefit conferred by

substituted Section 6 of the Act. In his submission, when the Act 1956

does not apply as the death of Vale Mareppa occurred prior to coming

into force of the Act 1956, any amendment in the Act 1956 i.e., Section 6

which also came into force with effect from 09.09.2005, cannot be applied

to the case of daughter. He submitted that what is relevant is the date of

death in the year 1942 on which date, the devolution/succession opened

and when later on the partition takes place, it is the notional partition that

is considered as on the date of death. He submitted that on the date of

death of Vale Mareppa, the daughter had no right in the property as she

was not the coparcener under the Hindu Mitakshara law at that time. He

submitted that the applications deserve to be rejected as there is no

occasion to claim the benefit of the judgment in Vineeta Sharma (supra).

17. However, during arguments, when a query was made to learned

counsel for respondent No.1 as to whether such argument is now open to

be raised at this stage of the applications for modification of the

preliminary decree, learned counsel submitted that as the preliminary

decree by the appellate Court has attained finality after dismissal of SLP,

Review and Curative petition, the same may not be open for him to be

raised and so he confines to the preliminary decree as it stands, but no

modification can be made as prayed by the applicants of I.A.Nos.1 & 3 of

2026 as per Vineeta Sharma (supra) on the substituted Section 6 of the

Hindu Succession Act.

iii) For Respondent Nos.2 & 3:

18. Sri P. Rajasekhar, learned counsel for respondent Nos.2 & 3

submitted that the applicants in I.A.No.1 of 2026 are claiming to be the

subsequent purchasers from the deceased 2

plaintiff, but they have not

brought on record, the copy of any such sale deed etc., evidencing

transfer in their favour and in the absence of any such sale deed; their

application deserves to be rejected. He submitted that the benefits of the

substituted Section 6 in Hindu Succession Act can be claimed only by the

daughter and not by the subsequent purchasers from the daughter (P2).

19. Sri P. Rajasekhar, learned counsel for the respondent Nos.2 & 3

further submitted that the application has been filed for delaying the

proceedings of final decree. He submitted that in spite of the direction

issued in CRP.No.2822 of 2022 by this Court, the final decree

proceedings are still pending.

20. Learned counsels for the respondents relied upon the following

judgments:

1. T. Ravi v. B. Chinna Narasimha

2. Sagire Nagendramma v. Mandlam Veeramma

3. Eramma v. Veerupana

4. Arshnoor Singh v. Harpal Kaur

5. Radhabai Balasaheb Shirke v. Keshav Ramchandra Jadhav

iv) Reply Submissions of the applicants:

21. In reply learned counsel for the applicants submitted that the

applicants in I.A.No.1 of 2026 are the subsequent purchasers from P2.

The respondents cannot dispute that fact even if the copy of the sale

deeds have not been filed with the present application. The respondents

or some of them have already filed separate proceedings for cancellation

of those sale deeds. He submitted that the applicants are already party in

the final decree proceedings. They had filed application for modification of

the preliminary decree before the learned Trial Court which was allowed

though that order was set aside in CRP.No.2822 of 2022 which was

affirmed by the Hon’ble Apex Court, but, it cannot be said that the

applicants of I.A.No.1 of 2026 have no right to maintain the application for

(2017) 7 SCC 342

Order dt.8.12.2006 in SLP(C)No.11792-11793/2004

AIR 1966 SC 1879

(2020) 14 SCC 436

2024 SCC OnLine Bom 3541

modification of the preliminary decree or for passing second preliminary

decree in view of the changed circumstances.

v) For applicants in I.A.No.3 of 2026

22. Learned counsel for the applicants in I.A.No.3 of 2026 have

adopted the arguments of the learned counsel for the applicants in

I.A.No.1 of 2026.

III. Points for Determination:

23. The following points arise for our consideration and determination:

“Whether the preliminary decree dated 26.09.2003 passed in

A.S.No.118 of 1990 in the partition suit deserves to be modified or

second preliminary decree deserves to be passed in view of

Section 6 of the Hindu Succession Act as substituted by

Amendment Act No.39 of 2005 and the law declared by the

Hon’ble Apex Court in Vineeta Sharma (supra) or/and in view of

the death of Nagamma (1

plaintiff).”

IV. Analysis on the point for consideration:

24. We have considered the aforesaid submissions of the learned counsels

for the parties and perused the material on record.

25. To decide the point framed by us, we shall consider; whether in a suit for

partition more than one preliminary decree can be passed; and if so, under what

circumstances; the legal position with respect to the share of the daughter in a

coparcenery property of the father, under substituted Section 6 of the Hindu

Succession Act; the law as declared by the Hon’ble Apex Court in Vineeta

Sharma (supra); whether those circumstances entitling any modification or

change in the original preliminary appellate decree exist so as to pass fresh

preliminary decree; and if so, which Court shall be competent to modify the

decree? The maintainability of I.A.No.1 of 2026 filed by the subsequent

purchasers from the daughter (2

plaintiff) would also require consideration.

Right of daughter under Section 6 of the Hindu Succession Act:

26. Firstly, we shall consider substituted Section 6 of the Hindu Succession

Act and the law as laid down in Vineeta Sharma (supra).

27. Section 6 of the Hindu Succession Act, 1956 before amendment

vide Amendment Act No.39 of 2005 read as under:

“6. Devolution of interest in coparcenary property.― when a

male Hindu dies after the commencement of this Act, having at the

time of his death an interest in Mitakshara coparcenary property,

his interest in the property shall devolve by survivorship upon the

surviving members of the coparcenary and not in accordance with

this Act:

Provided that, if the deceased had left him surviving a female

relative specified in class-I of the Schedule or a male relative

specified in that class who claims through such female relative, the

interest of the deceased in the Mitakshara coparcenary property

shall devolve by testamentary or intestate succession, as the case

may be, under this Act and not by survivorship.

Explanation 1: For the purposes of this section, the interest of

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.

Explanation 2: Nothing contained in the proviso to this section

shall be construed as enabling a person who has separated

himself from the coparcenary before the death of the deceased or

any of his heirs to claim on intestacy a share in the interest

referred to therein.”

28. In the State of Andhra Pradesh, Section 29A of the Andhra

Pradesh Amendment (Act.No.13 of 1986), provides as under:

“29-A. Equal rights to daughter in coparcenary property:-

Notwithstanding anything contained in Sec.6 of this Act,-

(i) In a joint Hindu Family governed by Mitakshara law, the

daughter of a coparcener in her own right in the same

manner as the son and have the same rights in the

coparcenary property as she would have had if she had been

a son, inclusive of the right to claim by survivorship; and shall

be subject to the same liabilities and disabilities in respect

thereto as the son.

(ii) At the partition in such a joint Hindu family the coparcenary

property shall be so divided as to allot to a daughter the

same share, as is allotable to a son;

Provided that the share which a pre-deceased son or a pre-

deceases daughter would have got at the partition if he or

she had been alive at the time of the partition shall be

allotted to the surviving child of such pre-deceased son or of

such pre-deceased daughter;

Provided further that the share allotable to the predeceased

child of a pre-deceased son or of a pre-deceased daughter, if

such child had 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 of the pre-deceased daughter as the case

may be;

(iii) Any property to which a female Hindu becomes entitled by

virtue of the provisions of Cl.(i) 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, as property capable of being

disposed of by her by will or other testamentary disposition;

(iv) Nothing in cl.(iii) shall apply to prior a daughter married to or

to a partition which had been effected before the

commencement of the Hindu Succession (Andhra Pradesh

Amendment) Act, 1986.

Explanation – In this section “Court” means the Court within

the limits of whose jurisdiction the immoveable property is

situate or the business is carried on, and includes any other

Court which the State, Government may, by notification in the

Andhra Pradesh Gazette, specify in this behalf.”

29. In the State of Karnataka new Sections 6A to 6C were inserted in

the Hindu Succession Act, 1956 (Central Act 30 of 1956), after Section

6, namely:-

“6A. Equal rights to daughter in co-parcenary

property.―Notwithstanding anything contained in section 6 of this Act,―

(a) in a joint Hindu family governed by Mitakshara law, the daughter of

a co-parcener shall by birth become a co-parcener in her own right in

the same manner as the son and have the same rights in the co-

parcenary property as she would have had if she had been a son

inclusive of the right to claim by survivorship and shall be subject to the

same liabilities and disabilities in respect thereto as the son;

(b) at a partition in such Joint Hindu Family the co-parcenary property

shall be so divided as to allot to a daughter the same share as is

allotable to a son:

Provided that the share which a predeceased son or a

predeceased daughter would have got at the partition if he or she had

been alive at the time of the partition, shall be allotted to the surviving

child of such predeceased son or of such predeceased daughter:

Provided further that the share allotable to the predeceased

child of the predeceased son or of a predeceased daughter, if such

child had been alive at the time of the partition, shall be allotted to the

child of such predeceased child of the predeceased son or of such

predeceased daughter, as the case may be;

the provisions of clause (a) shall be held by her with the incidents of

co-parcenary ownership and shall be regarded, notwithstanding

anything contained in this Act or any other law for the time being in

force, as property capable of being disposed of by her by will or other

testamentary disposition;

(d) nothing in clause (b) shall apply to a daughter married prior to or to

a partition which had been effected before the commencement of

Hindu Succession (Karnataka Amendment) Act, 1990.

6B. Interest to devolve by survivorship on death.―When a female

Hindu dies after the commencement of the Hindu Succession (Karnataka

Amendment) Act, 1990, having at the time of her death an interest in a

Mitakshara co-parcenary property, her interest in the property shall

devolve by survivorship upon the surviving members of the co-parcenary

and not in accordance with this Act:

Provided that if the deceased had left any child or child of a pre-

deceased child, the interest of the deceased in the Mitakshara co-

parcenary property shall devolve by testamentary or intestate succession,

as the case may be, under this Act and not by survivorship.

Explanation.―(1) For the purposes of this section the interest of female

Hindu Mitakshara co-parcener shall be deemed to be the share in the

property that would have been allotted to her if a partition of the property

had taken place immediately before her death, irrespective of whether

she was entitled to claim partition or not.

(2) Nothing contained in the proviso to this section shall be construed as

enabling a person who, before the death of the deceased had separated

himself or herself from the co-parcenary, or any of his or her heirs to

claim on intestacy a share in the interest referred to therein.

6C. Preferential right to acquire property in certain cases.―(1)

Where, after the commencement of Hindu Succession (Karnataka

Amendment) Act, 1990 an interest in any immovable property of an

intestate or in any business carried on by him or her, whether solely or in

conjunction with others devolves under sections 6A or 6B upon two or

more heirs and any one of such heirs proposes to transfer his or her

interest in the property or business, the other heirs shall have a

preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the

deceased may be transferred under sub-section (1) shall, in the absence

of any agreement between the parties, be determined by the court, on

application, being made to it in this behalf, and if any person proposing to

acquire the interest is not willing to acquire it for the consideration so

determined, such person shall be liable to pay all costs of or incidental to

the application.

(3) If there are two or more heirs proposing to acquire any interest under,

this section, that heir who offers the highest consideration for the transfer

shall be preferred.

Explanation.―In this section 'Court' means the court within the limits of

whose jurisdiction the immoveable property is situate or the business is

carried on, and includes any other court which the State Government may

by notification in the official Gazette specify in this behalf.]

[Vide Karnataka Act 23 of 1994, sec. 2].

30. Section 6 of the Hindu Succession Act, 1956 as substituted, after

amendment vide Amendment Act No.39 of 2005 reads as under:

6. Devolution of interest in coparcenary property.―(1) On and from

the commencement of the Hindu Succession (Amendment) Act, 2005 (39

of 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 the same manner as

the son;

(b) have the same rights in the coparcenery property as she would

have had if she had been a son;

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

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, 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 (39 of 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 coparcenery 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

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 entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act,

2005 (39 of 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 (39 of

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 (39 of 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 (39 of 2005).

(5) Nothing contained in this section shall apply to a partition, which has

been effected before the 20

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.]

31. In Ganduri Koteshwaramma v. Chakiri Yanadi

, the Hon’ble

Apex Court held that the right accrued to a daughter in the property of

Joint Hindu family governed by the Mitakshara law, by virtue of 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, which

is clear from Section 6(5) and for the purpose of new Section 6 ‘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. The Hon’ble Apex Court held that 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.

32. In Vineeta Sharma (supra) the Hon’ble Apex Court held and

recorded the conclusions as under:

“129. Resultantly, we answer the reference as under:

(i) The provisions contained in substituted Section 6 of the Hindu

Succession Act, 1956 confer status of coparcener on the daughter

Manu/SC/1216/2011

born before or after the amendment in the same manner as son with

same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect

from 9-9-2005 with savings as provided in Section 6(1) as to the

disposition or alienation, partition or testamentary disposition which

had taken place before the 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that

father coparcener should be living as on 9-9-2005.

(iv) The statutory fiction of partition created by the proviso to Section 6

of the Hindu Succession Act, 1956 as originally enacted did not bring

about the actual partition or disruption of coparcenary. The fiction was

only for the purpose of ascertaining share of deceased coparcener

when he was survived by a female heir, of Class I as specified in the

Schedule to the 1956 Act or male relative of such female. The

provisions of the substituted Section 6 are required to be given full

effect. Notwithstanding that a preliminary decree has been passed, the

daughters are to be given share in coparcenary equal to that of a son

in pending proceedings for final decree or in an appeal.

(v) In view of the rigour of provisions of the Explanation to Section 6(5)

of the 1956 Act, a plea of oral partition cannot be accepted as the

statutory recognised mode of partition effected by a deed of partition

duly registered under the provisions of the Registration Act, 1908 or

effected by a decree of a court. However, in exceptional cases where

plea of oral partition is supported by public documents and partition is

finally evinced in the same manner as if it had been affected (sic

effected) by a decree of a court, it may be accepted. A plea of partition

based on oral evidence alone cannot be accepted and to be rejected

outrightly.”

33. There is no dispute amongst the learned counsels on the legal

position with respect to the right of the daughter in the coparcenary

property of her father under substituted Section 6 of the Hindu

Succession Act to succeed like a son, subject to the conditions and

limitations as specified in the statutory provisions. The dispute is about

applicability of law and the maintainability of the application by

subsequent purchaser and the modification of the appellate preliminary

decree.

34. Learned counsel for the respondent Nos.1 & 2 submitted that the

Hindu Succession Act, 1956 applies only when the death occurs after the

Act came into force in 1956. He submitted that Vale Mareppa died in the

year 1942 prior to the Act, 1956 coming into force. In the appeal finding

was recorded that Vale Mareppa died prior to 1956. He submitted that the

Act, 1956 itself not being applicable, substituted Section 6 as by

Amendment Act No. 39 of 2005, shall not apply. He submitted that the

amended provision itself is applicable from 09.09.2005. He relied in

Arshnoor Singh (supra), Eramma (supra) and Radhabai Balasaheb

Shirke (supra) for the non applicability of amended Section 6 to the

daughter (P2) and for the contention that the law declared as in Vineeta

Sharma (supra) shall not apply. So, applications for modification deserves

rejection.

35. In Arshnoor Singh (supra), relevant fact is that Lal Singh passed

away in 1951. His entire property was inherited by his only son Inder

Singh. Inder singh had affected a partition of the entire property vide civil

Courts decree dated 04.11.1964 amongst his three sons in equal shares.

The Hon’ble Apex Court held that, Inder Singh had inherited the entire

property from his father Lal Singh upon his death as per the Hindu

Mitakshara Law, and as per the mutation entry Lal Singh’s death took

place in 1951. The succession opened in 1951 prior to the

commencement of Hindu Succession Act, 1956. Learned counsel for the

respondent Nos.1 & 2 laid much emphasis that the Act, 1956 will not

apply if the death took place prior to the commencement of the Hindu

Succession Act. The succession would then be in accordance with the old

Hindu Mitakshara law. He contended that in the present case Mareppa

died in the year 1942, so the Mitakshara law would govern. The Hindu

succession Act would not govern. The daughter (P2) is not entitled

because of the non-applicability of the Act, 1956, P2 would also not be

entitled under the substituted section 6 of the Act, 1956 nor by virtue of

Vineeta Sharma (supra). The subsequent purchasers from the daughter

(Plantiff No.2) or her legal heirs would also not be entitled and their

applications would not be maintainable for modification of the preliminary

decree. In Arshnoor Singh (supra), as mentioned above, Inder Singh

was the only son of Lal Singh. So, on the death of Lal singh in 1951,

succession opened and by operation of law under Hindu Mitakshara law,

Inder Singh the only son inherited the entire property of Lal Singh. There

was no question of partition amongst any co-sharer(s) in 1951. Here,

partition has not taken place. So when it comes to partition after 1956, the

same is to be considered as per the law under the Succession Act, 1956

and since the proceedings for partition are still pending, Amended Section

6 of Hindu Succession Act has to be given effect to. Arshnoor Singh

(supra) cannot be applied to the facts of the present case.

36. In Eramma (supra), the Hon’ble Apex Court held that Section 6

(unamended) applies only to co-parcenary property of the male hindu

who died after the commencement of the Act, 1956. Paras 4 & 5 of

Eramma (supra) reads asunder:-

“4. There is nothing in the language of this section to suggest that it has

retrospective operation. The words "The property of a male Hindu dying

intestate" and the words "shall devolve" occurring in the section make it

very clear that the property whose devolution is provided for by that

section must be the property of a person who dies after the

commencement of the Hindu Succession Act. Reference may be made,

in this connection, to Section 6 of the Act which states :

"6. When a male Hindu dies after the commencement of this

Act, having at the time of his death an interest in a Mitakshara

coparcenary property, his interest in the property shall devolve by

survivorship upon the surviving members of the coparcenary and not

in accordance with this Act :

Provided that if the deceased had left him surviving a female

relative specified in class I of the Schedule or a male relative specified

in that class who claims through such female relative, the interest of

the deceased in the Mitakshara coparcenary property shall devolve by

testamentary or intestate succession as the case may be, under this

Act and not by survivorship.

* * * * *"

5. It is clear from the express language of the section that it applies

only to coparcenary property of the male Hindu holder who dies

after the commencement of the Act. It is manifest that the language of

s. 8 must be construed in the context of s. 6 of the Act. We accordingly

hold that the provisions of s. 8 of the Hindu Succession Act are not

retrospective in operation and where a male Hindu died before the Act

came into force i.e., where succession opened before the Act, s. 8 of the

Act will have no application.”

37. In Eramma (supra) the Hon’ble Apex Court held that Section 8 of

Hindu Succession Act must be construed in the context of Section 6 of

the H.S.Act. It applies only to coparcenary property of the male Hindu

holder who dies after the commencement of the Act. It was held that the

provision of section 8 of the Hindu Succession Act are not retrospective in

operation. So, where a male hindu dies before the Act, 1956 came into

force (where succession opened before the Act, 1956) Section 8 of the

Act, 1956 will have no application.

38. The judgment in Eramma (supra) is prior to the substituted Section

6, in the Act 1956 vide Amendment Act No.39 of 2005. Section 6 of the

Act, 1956 has been amended. At the time the un-amended Section 6 was

enforce, the position might have been as per Eramma (supra), but after

the amended Section 6 the daughter has been given a status of

coparcener, so the position in law, in our view after amendment would be

as per the declaration in Vineeta Sharma (supra) which is specifically on

the point of right of daughter in the coparcenary property of her father.

39. We may observe further that in Eramma (supra) the Hon’ble Apex

Court held that “it is manifest that the language of Section 8 must be

construed in the context of Section 6 of the Act.”, So at present also,

Section 8 of the Hindu Succession Act, 1956 must be construed in the

context of the Amended Section 6 of the Act, 1956 as it stands today as

substituted. Prior to the amendment, Section 6 used the expression ‘when

a male hindu dies after the commencement of this Act’. The amended

Section 6 does not use those expressions. So when it comes to the

applicability of amended Section 6, we are of the view that the law as in

Vineeta Sharma (supra) shall hold the field.

40. The contention of the learned counsel for respondent Nos.1 & 2

with respect to and based on the death of Mareppa in 1942, prior to Hindu

Succession Act, 1956, deserves rejection for another reason. In A.S.118

of 1990 the appellate Court, vide preliminary decree dated 26.09.2003

granted 1/6

share (i.e, 1/3

in ½ of Mareppa), to the daughter. That

decree has been affirmed by the Hon’ble Apex Court. So, so far as the

right of the daughter (P2) to get share in the suit property of her father

(Mareppa) has attained finality. The daughter’s entitlement in the father’s

property has already been determined even prior to the amendment of

section 6 of the Hindu Succession Act, 1956. The preliminary decree to

the entitlement of the daughter (P2) to have a share in father’s property

cannot be reopened now, even if the contention of the learned counsel for

respondent Nos. 2 & 3 be that the determination made previously in

original appellate preliminary decree was not correct. Learned counsel

also submitted during arguments, as already mentioned (supra) that, such

an issue cannot be reopened and he would go by the preliminary decree

as originally passed by the appellate Court, but added that the benefit of

Vineeta Sharma (supra) cannot be given so as to enhance the share of

(P2) daughter from 1/6 to ¼ (i.e., ½ in ½). We cannot enter into the

question of the legality of the appellate judgment/preliminary decree

passed in this appeal, previously so as to deny the daughter any

entitlement, on the submission of the learned counsel for the

respondents. Once she has been held to be entitled under the appellate

judgment of this Court, which has become final, the same cannot be

reopend. The question to be determined is, in view of the amendment of

Section 6 in 2005, and the judgement in the Vineeta Sharma (supra), as

to what share the daughter (P2) is entitled in the changed legal position

or/and due to the death of her mother (P1).

41. The submission of the learned counsel for respondent Nos.2 & 3 to

the above effect, deserves rejection viewing from another angle. Taking

the submission as correct based on Arshnoor Singh (supra) and

Eramma (supra) that the daughter (P2) was not entitled to any share in

the coparcenary of her father and this Court in appeal vide

judgment/preliminary decree dated 26.09.2003 granted 1/6

share, which

should not have been allowed. Taking further, no share could be granted

in the preliminary decree at that time as Mareppa died in 1942, under the

Hindu Mitakshara Law. Then also the co-parcenary of Mareppa not

having been partitioned even as on today, and the suit for partition being

pending and in the meantime Section 6 having been amended granting

the daughter same share as of son in the coparcenary of the father in

view thereof and the law declared in Vineeta Sharma (supra), the

daughter (P2) would certainly be now entitled to share with her brother

(son of Mareppa) in equal shares. Such an amendment has to be given

effect to.

42. The law laid down in Vineeta Sharma (supra) is that the daughter

is entitled in the coparcenary property in equal shares with the son (her

brother). The date of death of the father is not relevant. The daughter

might have born prior to the amendment but the daughter must have

been alive on 09.09.2005. The partition, disposition or alienation must not

have taken place prior to 20

December, 2004. In Vineeta Sharma

(supra) it was held that, notwithstanding a preliminary decree, the

daughters are to be given their share in co-parcenary equal to that of a

son in pending proceedings for final decree or in appeal.

43. In this case the daughter (P2) was alive on 09.09.2005. There was

no partition of the property in the hands of Mareppa as coparcenary

before 20

December, 2004. The suit for partition was filed in the year

1988. Only a preliminary decree was passed. No final decree has been

passed. The proceedings for final decree are still pending. In our view all

the pre-conditions of substituted Section 6 are fulfilled. So, the daughter

(P2) would be entitled to a share equal to that of a son in the co-

parcenary of her father, notwithstanding the death of her father in 1942.

44. In Radhabai Balasaheb Shirke (supra) the Bombay High Court

held that the daughter would not have any right either limited or absolute,

by inheritance prior to coming into force of the Act 1956 in the property of

the deceased father who died prior to 1956 leaving behind him in addition

to such daughter his widow as well. Much emphasis was laid on this

judgement of the Bombay High Court which referred to the judgments in

Vineeta Sharma (supra) and Arshnoor Singh (supra).

45. In Radhabai Balasaheb Shirke (supra), the facts were that one

Yeshwantrao had two wives, Laxmibai and Bhikubai. Yeshwantrao had

two daughters from Laxmibai, and one daughter from Bhikubai. Laxmibai

pre-deceased Yeshwantrao in 1930 and Sonubai, one of the daughters

from Laxmibai expired in 1949. Yeshwantrao expired on 10.06.1952.

Bhikubai expired on 08.07.1973 after executing a will in favour of her

daughter Champubai on 14.08.1956. Radhabai, another daughter from

Yeshwantrao and Laxmibai filed suit for declaration that she had half

share in the properties left behind by her father and sought partition. The

trial court dismissed the suit holding that the widow Bhikubai alone

inherited the suit properties in view of the provisions of the Hindu

Women's Right to Property Act, 1937 and she became the absolute

owner in 1956 in view of the provisions of the Hindu Succession Act

1956. The appeal preferred by Radhabai was dismissed giving rise to the

second appeal. The Bombay High Court held considering Arshnoor

Singh (supra) that a daughter was entitled to inherit only after the death

of widow and not in the presence of the widow. The Bombay High Court

answered the reference in the said case holding that the daughter would

not have any right either limited or absolute by inheritance prior to coming

into force the Act of 1956 in the property of the deceased father who died

prior to 1956 leaving behind him in addition to such daughter his widow

as well. The Bombay High Court also referred to the judgment of the

Hon’ble Apex Court in Vineeta Sharma (supra) and held that Vineeta

Sharma (supra) was of no assistance as therein the provisions of Section

6, post the 2005 Amendment was dealt with, whereby a daughter was

treated equal coparcenary. The Bombay High Court also recorded that

the amended provision giving equal right to a daughter would apply only

to a situation where death occurs after the date of amendment and

therefore, it was implied that if person died prior to 1956, Vineeta

Sharma (supra) could not be of any assistance to ascertain the

daughter’s right since the issue of inheritance opened up on the death

prior to 1956.

46. In Radhabai Balasaheb Shirke (supra) the question was

considered in a reference made to the Larger Bench pending the second

appeal. In the present case, the preliminary decree passed by the

appellate court holding the daughter entitled for 1/6

share has already

attained finality after dismissal of the SLP, Review and Curative petition

against the preliminary decree, so such question cannot be reopened on

the strength of Radhabai Balasaheb Shirke (supra). We are of the view

that even if the father died prior to 1956 Act the date of death of the father

is not relevant to confer right on the daughter in the coparcenary of the

father if the conditions under substituted Section 6 are satisfied. In our

view Vineeta Sharma (supra) is fully applicable as the conditions under

substituted Section 6 of Hindu Succession Act are fully satisfied, as

already considered in paras 42 and 43 (supra) of this judgment.

47. Any view taken in Radhabai Balasaheb Shirke (supra), contrary to

the view we have taken, with due respect, we are not in agreement, for

the reasons recorded by us.

There can be more than one preliminary decree in a suit for partition

and the finality of such decree:

48. In Phoolchand v. Gopal lal

the Hon’ble Apex Court held that

there can be more than one preliminary decree in a suit for partition if the

circumstances justify the same, when after the preliminary decree an

event transpires which necessitates a change in share. The Hon’ble Apex

court held as under:

AIR 1967 SC 1470

6. The next contention is that there cannot be two preliminary decrees

and therefore when the trial court varied the shares as indicated in the

preliminary decree of August 1, 1942 there was no fresh preliminary

decree passed by the trial court. It is not disputed that in a partition suit

the court has jurisdiction to amend the shares suitably even if the

preliminary decree has been passed if some member of the family to

whom an allotment was made in the preliminary decree dies thereafter :

(see Parshuram v. Hirabai MANU/MH/0115/1957 : AIR1957Bom59).

So the trial court was justified in amending the shares on the deaths of

Sohan Lal and Smt. Gulab Bai. The only question then is whether this

amendment amounted to a fresh decree. The Allahabad High Court in

Bharat Indo v. Yakub Hassan MANU/UP/0040/1913 : I.L.R. (1913) All.

159 the Oudh Chief Court in Kedernath v. Pattu Lal I.L.R. (1945) 20

Luck. 557, and the Punjab High Court in Joti Prashad v. Ganesh Lal

MANU/PH/0037/1961 seem to take the view that there can be only one

preliminary decree and one final decree thereafter. The Madras,

Bombay and Calcutta High Courts seem to take the view that there can

be more than one preliminary decree : (see Kasi v. V. Ramanathan

Chettiar (1947) 2 Mad. L.J. 523 Raja Peary Mohan v. Manohar

MANU/PR/0024/1921 :(1923) 27 Cal. W.N. 989, and Parshuram v.

Hirabai.

7. 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.

We have already said that it is not disputed that in partition suits the

court can do so even after the preliminary decree is passed. It would in

our opinion be convenient to the court and advantageous to the parties,

specially in partition suits, to have disputed rights finally settled and

specification of shares in the preliminary decree varied before a final

decree is prepared. If this is done, there is a clear determination of the

rights of parties to the suit on the question in dispute and we see no

difficulty in holding that in such cases there is a decree deciding these

disputed rights; if so, there is no reason why a second preliminary

decree correcting the shares in a partition suit cannot be passed by the

court. So far therefore a 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;

and if there is a dispute in that behalf, the order of the court deciding

that dispute and making variation in shares specified in the preliminary

decree already passed is a decree in itself which would be liable to

appeal. We should however like to point out that what we are saying

must be confined to partition suits, for we are not concerned in the

present appeal with other kinds of suits in which also preliminary and

final decrees are passed. 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. In any case if two views are possible - and obviously this is

so because the High Courts have differed on the question - we could

prefer the view taken by the High Courts which hold that a second

preliminary decree can be passed, particularly in partition suits where

parties have died after the preliminary decree and shares specified in

preliminary decree have to be adjusted. We see no reason why in such

a case if there is dispute, if should not be decided by the court which

passed the preliminary decree, for it must not be forgotten that the suit

is not over till the final decree is passed 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.

Whether there can be more than one final decree does not arise in the

present appeal and no that we express no opinion. We therefore hold

that in the circumstances of this case it was open to the court to

draw up a fresh preliminary decree as to of the parties had died

after the preliminary decree had before the final decree was

passed. Further as there was dispute between the surviving parties as

to devolution of the shares of the parties who were dead and that

dispute was decided by the trial court in the present case and thereafter

the preliminary decree already passed was amended, the decision

amounted to a decree and was liable to appeal. We therefore agree with

the view taken by the High Court that in such circumstances 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 was that dispute

is decided the decision amounts to a decree. We should however like to

make it clear that this can only be done so long as the final decree

has not been passed. We therefore reject this contention of the

appellant.”

49. In S. Sai Reddy v. S. Narayana Reddy

in which AP state

amendment in Hindu Succession Act by which section 29-A was inserted,

was under consideration, the honourable apex court held as under in

para’s 10 & 11:

“10. The question that falls for our consideration is whether the

preliminary decree has the effect of depriving respondents 2 to 5

of the benefits of the amendment. The learned counsel placed

reliance on clause (iv) of Section 29-A to support his contention that it

does. Clause (ii) of the section provides that a daughter shall be allotted

share like a son in the same manner treating her to be a son at the

partition of the joint family property. However, the legislature was

conscious that prior to the enforcement of the amending Act, partitions

will already have taken place in some families and arrangements with

(1991) 3 SCC 647

regard to the disposition of the properties would have been made and

marriage expenses would have been incurred etc. The legislature,

therefore, did not want to unsettle the settled positions. Hence, it

enacted clause (iv) providing that clause (ii) would not apply to a

daughter married prior to the partition or to a partition which had already

been effected before the commencement of the amending Act. Thus if

prior to the partition of family property a daughter had been married, she

was disentitled to any share in the property. Similarly, if the partition had

been effected before September 5, 1985 the date on which the

amending Act came into force, the daughter even though unmarried

was not given a share in the family property. The crucial question,

however, is as to when a partition can be said to have been

effected for the purposes of the amended provision. 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 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.

11. 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.”

50. In S. Sai Reddy (supra) it was held by the Hon’ble Apex Court that

the partition of the joint Hindu family can be affected 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. In the suit for

partition filed in a 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. The Hon’ble Apex Court held that

unless a partition of the property is effected by metes and bounds, the

daughters cannot be deprived of the benefits conferred by the

amendment in the Hindu Succession Act.

51. In Maddineni Koteswara Rao v. Maddineni Bhaskara Rao

the

Hon’ble Apex Court held that it is well settled that the suit for partition

stands disposed of only with the passing of the final decree. It is equally

settled that in a partition suit, the Court has the jurisdiction to amend the

shares suitably, even if the preliminary decree has been passed, if some

member of the family to whom an allotment was made in the preliminary

decree dies thereafter. The share of the deceased would devolve upon

other parties to a suit or even a third party, depending upon the nature of

the succession or transfer, as the case may be. The validity of such

succession, whether testate or intestate, or transfer, can certainly be

considered at the stage of final decree proceedings.

52. In Maddineni Koteswara Rao (supra) the Hon’ble Apex Court

further held that Section 97 of CPC makes it clear that if a party aggrieved

by a preliminary decree passed after the commencement of the CPC

does not appeal from such decree, he shall be precluded from disputing

(2009) 13 SCC 179

its correctness in any appeal which may be preferred from the final

decree. However to the said principle, as in that case the preliminary

decree was in the partition suit and the death of the father of the parties

occurred after passing of the preliminary decree, the Hon’ble Apex Court

further held that Section 97 of the CPC would not come into play.

53. Para Nos.10 & 15 in Maddineni Koteswara Rao (supra) read as

under:

10. It is well settled that a suit for partition stands disposed of only with

the passing of the final decree. It is equally settled that in a partition

suit the court has the jurisdiction to amend the shares suitably even if

the preliminary decree has been passed if some member of the family

to whom an allotment was made in the preliminary decree dies

thereafter. The share of the deceased would devolve upon other

parties to a suit or even a third party, depending upon the nature of the

succession or transfer, as the case may be. The validity of such

succession, whether testate or intestate, or transfer, can certainly be

considered at the stage of final decree proceedings. An inference to

this effect can suitably be drawn from the decision of this Court in

Phoolchand v. Gopal Lal. In that decision, it was observed as follows:

“There is nothing in the Code of Civil Procedure which prohibits the

passing of more than one preliminary decree if the 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. …

It would in our opinion be convenient to the court and advantageous

to the parties, specially in partition suits, to have disputed rights

finally settled and specification of shares in the preliminary decree

varied before a final decree is prepared. If this is done, there is a

clear determination of the rights of [the] parties to the suit on the

question in dispute and we see no difficulty in holding that in such

cases there is a decree deciding these disputed rights; if so, there is

no reason why a second preliminary decree correcting the shares in

a partition suit cannot be passed by the court.”

* * * * *

“15. A plain reading of this provision would make it clear that if a party

aggrieved by a preliminary decree passed after the commencement of

CPC 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. This is not the position in this case. Here admittedly, a

preliminary decree was passed declaring the share of the parties

including the share in favour of the deceased father of the parties. That

preliminary decree is final, but on the death of the father of the parties,

the shares allotted to the deceased father of the parties would fall

either to the parties in equal shares or if by will or by any form of

transfer, such share has been given to one of the parties. Therefore, in

that situation, the respondents could not have filed any appeal against

the preliminary decree because (1) at this stage, the father was very

much alive and only on the death of the father, the question of getting

one more share that is the share of the father would come into play;

and (2) the declaration made in the preliminary decree by the court

was also accepted by the parties at that stage. Therefore, Section 97

CPC could not be an aid to the appellant and therefore, the

submission of the learned counsel for the appellant in this Court

cannot be accepted and therefore it is rejected.”

54. In Ganduri Koteshwaramma (supra), the Hon’ble Apex Court

answered as to whether the preliminary decree passed by the trial Court

(prior to amendment 2005) deprived the appellants therein of the benefits

of 2005 Amendment Act, although the final decree for partition had not

been passed. It was held that the only stage reached in the suit for

partition was the determination of shares vide preliminary decree and

receipt of the report of the commissioner. A preliminary decree, it was

held that, 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 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, then 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 situations.

The Hon’ble Apex Court referred to its judgment in Phoolchand (supra)

and also S.Sai Reddy (supra) and reiterated that the Code of Civil

Procedure 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. The Apex Court held that it is not

correct statement of law that once a preliminary decree has been passed,

it is not capable of modification. It was emphasised that the rights of the

parties in partition suit should be settled once for all in that suit alone and

no other proceedings.

55. It is apt to refer para Nos.15, 16, 17, 20 to 22 in Ganduri

Koteshwaramma (supra) which read as under:

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. v. Gopal Lal MANU/SC/0284/1967:

AIR 1967 SC 1470 where in 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....

* * * *

20. The High Court was clearly in error in not properly appreciating the

scope of Order XX Rule 18 of Code of Civil Procedure 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, this Court has stated the legal position that Code of Civil

Procedure 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.”

56. In Prema v. Nanje Gowda

, the question was as to whether the

appellant therein could seek enhancement of her share in the joint family

property in the final decree proceedings in terms of Section 6 inserted in

the Hindu Succession Act, 1956 by the Hindu Succession (Karnataka

Amendment) Act, 1990, which received presidential assent on 28.07.1994

and was published in the Karnataka Gazette dated 30.07.1994. The

appellant therein had filed applications under Sections 151, 152 & 153 of

the CPC for amendment of the preliminary decree and for grant of a

declaration that in terms of Section 6A as inserted in the State of

Karnataka she should be entitled to 2/7

share in the suit property. The

2011 (6) SCC 462

application was dismissed by the Trial Court. The appellant’s challenge

was negatived by the High Court taking the view that the preliminary

decree after the dismissal of the Second Appeal attained finality. The

High Court had also held that the application for amendment in the

preliminary decree could not be entertained in the final decree

proceedings. The Hon’ble Apex Court held that the State of Karnataka

amendment in Section 6A to 6C was for ensuring that unmarried

daughters get equal share in the coparcenary property. Similar provisions

were inserted in the Act by the legislatures of the State of Andhra

Pradesh, Maharashtra and Tamil Nadu. Referring to the judgments of,

inter-alia, Phoolchand (supra) and S. Sai Reddy (supra), the Hon’ble

Apex Court reiterated that by virtue of the preliminary decree passed by

the Trial Court which was confirmed by the lower appellate Court and the

High Court, the issues decided therein will be deemed to have become

final but as the partition suit is required to be decided in stages, the same

can be regarded as fully and completely decided only when the final

decree is passed. If in the interregnum any party to the partition suit dies,

then his or her share is required to be allotted to the surviving parties and

this can be done in the final decree proceedings. Likewise, if law

governing the parties is amended before conclusion of the final decree

proceedings, the party benefited by such amendment can make a request

to the court to take cognizance of the amendment and give effect to the

same. If the rights of the parties to the suit change due to other reasons,

the Court seized with the final decree proceedings is not only entitled but

is duty bound to take notice of such change and pass appropriate order.

In Prema (supra) on the date the amendment by the State Act of

Karnataka came into force, the final decree proceedings were pending

and consequently the application for modification to give effect to the

statute was held maintainable holding further that the daughter had every

right to seek enlargement of her share and there was no reason why the

Court should hesitate in giving effect to an amendment made by the

legislature.

57. Para Nos.13, 14 & 20 in Prema (supra) read as under:

“13. In the present case, the preliminary decree was passed on 11-

8-1992. The first appeal was dismissed on 20-3-1998 and the second

appeal was dismissed on 1-10-1999 as barred by limitation. By the

preliminary decree, shares of the parties were determined but the actual

partition/division had not taken place. Therefore, the proceedings of the

suit instituted by Respondent 1 cannot be treated to have become final

so far as the actual partition of the joint family properties is concerned

and in view of the law laid down in Phoolchand v. Gopal Lal [AIR 1967

SC 1470] and S. Sai Reddy v. S. Narayana Reddy [(1991) 3 SCC 647] ,

it was open to the appellant to claim enhancement of her share in the

joint family properties because she had not married till the enforcement

of Karnataka Act 23 of 1994. Section 6-A of Karnataka Act 23 of 1994 is

identical to Section 29-A of the Andhra Pradesh Act. Therefore, there is

no reason why ratio of the judgment in S. Sai Reddy v. S. Narayana

Reddy [(1991) 3 SCC 647] should not be applied for deciding the

appellant's claim for grant of share on a par with male members of the

joint family. In our considered view, the trial court and the learned Single

Judge were clearly in error when they held that the appellant was not

entitled to the benefit of Karnataka Act 23 of 1994 because she had not

filed an application for enforcing the right accruing to her under Section

6-A during the pendency of the first and the second appeals or that she

had not challenged the preliminary decree by joining Defendants 1, 4

and 5 in filing the second appeal.

14. We may add that by virtue of the preliminary decree passed by

the trial court, which was confirmed by the lower appellate court and the

High Court, the issues decided therein will be deemed to have become

final but as the partition suit is required to be decided in stages, the

same can be regarded as fully and completely decided only when the

final decree is passed. If in the interregnum any party to the partition suit

dies, then his/her share is required to be allotted to the surviving parties

and this can be done in the final decree proceedings. Likewise, if law

governing the parties is amended before the conclusion of the final

decree proceedings, the party benefited by such amendment can make

a request to the court to take cognizance of the amendment and give

effect to the same. If the rights of the parties to the suit change due to

other reasons, the court seized with the final decree proceedings is not

only entitled but is duty-bound to take notice of such change and pass

appropriate order. In this case, the Act was amended by the State

Legislature and Sections 6-A to 6-C were inserted for achieving the goal

of equality set out in the Preamble of the Constitution. In terms of

Section 2 of Karnataka Act 23 of 1994, Section 6-A came into force on

30-7-1994 i.e. the date on which the amendment was published. As on

that day, the final decree proceedings were pending. Therefore, the

appellant had every right to seek enlargement of her share by pointing

out that the discrimination practised against the unmarried daughter had

been removed by the legislative intervention and there is no reason why

the court should hesitate in giving effect to an amendment made by the

State Legislature in exercise of the power vested in it under Article 15(3)

of the Constitution.”

* * * * *

“20. In our view, neither of the aforesaid three judgments can be

read as laying down a proposition of law that in a partition suit,

preliminary decree cannot be varied in the final decree proceedings

despite amendment of the law governing the parties by which the

discrimination practiced against unmarried daughter was removed and

the statute was brought in conformity with Articles 14 and 15 of the

Constitution. We are further of the view that the ratio of Phoolchand v.

Gopal Lal [AIR 1967 SC 1470] and S. Sai Reddy v. S. Narayana Reddy

[(1991) 3 SCC 647] has direct bearing on this case and the trial court

and the High Court committed serious error by dismissing the

application filed by the appellant for grant of equal share in the suit

property in terms of Section 6-A of Karnataka Act 23 of 1994.”

Bar of Section 97 CPC

58. Section 97 CPC provide a under:

97. Appeal from final decree where no appeal from preliminary

decree.— Where any party aggrieved by a preliminary decree passed

after the commencement of this 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.

59. In Ganduri Koteshwaramma (supra) the Hon’ble Apex Court

further held that i) though Section 97 of CPC 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 by

the final decree but that 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;

and ii) that the 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 Court in the event of changed or supervening

circumstances, even if no appeal has been preferred from such initial

preliminary decree.

Maintainability of Application for modification in preliminary decree:

60. Vineeta Sharma v. Rakesh Sharma

was decided, after the

reference was answered by the larger Bench in Vineeta Sharma {(2020)

9 SCC 1}. The Hon’ble Apex Court observed that a decree shall agree

with the judgment in view of the changed law and so, the appeal was

disposed of remanding the matter to the High Court(s) for the purpose of

reconsideration and appropriate disposal in tune with the law laid down in

Vineeta Sharma {(2020) 9 SCC 1}.

61. Learned counsel for the applicants submitted that the preliminary

decree passed by this Court in A.S.No.118 of 1990 deserves to be

modified in tune with the law as laid down in Vineeta Sharma (supra). He

submitted that in Vineeta Sharma (supra), the matter was pending before

the Hon’ble Apex Court so remand was made but in the present case

since appeal was not pending before the Apex Court which had already

been dismissed confirming the decree passed in A.S.No.118 of 1990 by

2023 SCC OnLine SC 2553

this Court, therefore, to bring the preliminary decree in tune with the law

laid down in Vineeta Sharma (supra), the application for modification in

the preliminary decree passed by it, is the only way and when the

application for modification in the preliminary decree filed before the

learned Trial Court, finally stands rejected, on the ground that the trial

Court had no jurisdiction. So, the application is maintainable in the Appeal

Suit.

62. The objection raised by the learned counsels for the respondents to

the maintainability of I.A.No.1 of 2026 by the subsequent purchasers from

the daughter P2, has got no force.

63. I.A.No.1 of 2026 is maintainable. The reason is firstly that, the

same applicants (subsequent purchasers) are already party in the final

decree proceedings. Their previous application for modification of

preliminary decree filed before the learned Trial Court was allowed

though the order was set aside in CRP on the ground that the Trial Court

decree merged in the appellate Court decree, and so the Trial Court had

no jurisdiction to modify the preliminary decree. The CRP was not

allowed on the ground that those subsequent purchasers had no right to

maintain the application.

64. Secondly, a suit for partition is pending till the final decree is

passed. So pending the suit for partition if any transfer takes place may

be after the preliminary decree, the subsequent purchaser has a right to

be impleaded and to contest or prosecute the pending proceedings. The

subsequent purchaser, pending the suit, if wants to come on record, he

has a right to apply to protect his interest created in the suit property.

65. In S.Sudhakar (supra) on consideration of Order XXII Rule 10 CPC

and Section 2(11) CPC which defines legal representative, it was held

that the purchaser of property pending suit can come on record as legal

representative or to continue the lis on behalf of assignor. Paras 13 to 17

of S.Sudhakar (supra) read as under:

“13. The admitted circumstances are as follows:

The suit is one for partition and separate possession of plaintiffs 1/11th

share in the suit schedule property. The deceased-plaintiff after filing the

suit under registered sale deed dated 07.08.2001 alienated his undivided

share of in the suit schedule property in favour of revision petitioners. The

revision petitioners have been impleaded under Order XXII Rule 10 CPC.

Order XXII Rule 10 CPC reads thus:

Procedure in case of assignment before final order in suit-

(1) In other cases of an assignment, creation or devolution of any

interest during the pendency of a suit, the suit may, by leave of the

court, be 7 continued by or against the person to or upon whom

such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall

be deemed to be an interest entitling the person who procured

such attachment to the benefit of sub-rule (1)."

14. Under Order XXII Rule 10 CPC, the procedure for bringing on record on

assignment, creation or devolution to continue the suit by or against the person

on whom the interest has come to vest or devolved. The application can be by

the parties already on record or can be at the instance of assignee etc. The

object of Rule 10 of Order XXII ought to be construed and appreciated in the light

of Section 2(11) of CPC, for the object is to decide a lis in the presence of parties

having interest or competent to represent the estate of deceased.

15. In a suit for partition, the position of plaintiffs and defendants is

interchangeable and stands on a distinct footing. In a partition suit, a party can

claim transposition from the category of defendant to the category of plaintiff and

vice versa. Therefore, per se, transposition is not prohibited and, on the other

hand, in a suit for partition, the transposition of a party from one rank to a

different rank is easier for the frame of suit and the cause of action etc., are not

substantially altered. Therefore, from the point of view of frame of suit, the

transposition of a party in a suit for partition does not present difficulty.

16. Section 2(11) CPC defines legal representative as:

(i) a person who in law represents the estate of a deceased person;

(ii) includes in a person who intermeddles with the estate of deceased and

where a party sues or is sued in a representative character the person on

whom the estate devolves on the death of the party so suing or sued.

17. The definition of legal representative is wide and at the same time succinctly

encompasses variety of situations. Therefore, it is for the Court to examine and

decide whether the status claimed by a person as legal representative of

deceased party satisfies the definition or not. The definition of legal

representative does not exclude a purchaser from the deceased party to

represent the estate. The words used are legal representative means - one who

can legally represent the estate of the deceased. In a given case, a purchaser of

interest of deceased party to a lis can be recognized on the ground that he

represents the estate of a deceased party. In the case on hand, having allowed

revision petitioners to come on record, the objection to transpose them as

plaintiffs is untenable. Therefore, the purchaser of property pending suit can by

reference to Section 2(11), Order XXII Rule 10 can come on record as legal

representative or to continue the lis on behalf of assignor.”

66. Thirdly, the legal representatives of the deceased P2 have also

filed I.A.No.3 of 2026 for the same prayer of modification in the

preliminary decree on the same grounds, and there is no dispute raised

with respect to the maintainability of I.A.No.3 of 2026 at the instance of

the legal heirs of deceased P2. We are considering both the applications

together. The same result would follow in I.A.No.1 of 2026 or/and I.A.No.3

of 2026. So, the objection raised is of no much relevance and we find no

reason to reject I.A.No.1 of 2026 of the applicants/subsequent purchasers

from P2 on the objection of its maintainability.

67. Learned counsel for the respondents placed reliance in T. Ravi v.

B. Chinna Narasimha

to contend that the application for modification is

not maintainable for the reason that the matters which are concluded by

preliminary decree cannot be re-agitated in an appeal against the final

decree and so, applying the same principle it cannot be re-agitated by

filing an application for modification. In T. Ravi (supra) the determination

of shares as per the preliminary decree had attained finality and the

shares of the parties had been crystallized in each and every member.

So, the purchaser pendent lite was bound by the preliminary decree with

respect to the shares so determined, and it was held that it could not be

reopened and whatever equity could have been claimed in the final

decree proceedings to the extent of the vendor’s share had already been

extended to those purchasers.

68. A perusal of the judgment in T. Ravi shows that the provision of

Section 97 CPC was considered. Against the preliminary decree appeal

was not filed. The preliminary decree attained finality. It was held that

from the final decree, the point could not be re-agitated, in the appeal as

the point of share of the vendor had been concluded by the preliminary

decree. The principle of law as applied in the said case is applicable to

(2017) 7 SCC 342

the facts of that case and also to the like cases, but not to the facts of the

present case. In the case of T. Ravi (supra) the question of change in the

share of the parties to the suit for partition due to the change in law or the

death of a party resulting into the enhancement of the share of the

parties, was not involved. The law is well settled as laid down in T. Ravi

(supra) but there is also an exception, as laid down in the aforesaid

cases, Ganduri Koteshwaramma (supra) that in the cases of the

changed circumstances changing share of the parties since after passing

of the preliminary decree on account of death, birth or change in law,

even if the appeal was not filed against the original preliminary decree

that would not be a bar to apply for modification or to take the challenge

in the final decree proceedings or in appeal against the final decree, as

Section 97 CPC does not contemplate such a situation. In the present

case those situations are present. Firstly, the change in law under

Section 6 of the Hindu Succession Act; the judgment in Vineeta Sharma

(supra) and also the death of a party (1

plaintiff-mother) are pending the

partition suit, after passing of the preliminary decree by the appellate

Court and pending the final decree proceedings. Final decree has not yet

been passed. The judgment in T. Ravi (supra) is therefore distinguishable

and is not attracted to the present case. It cannot be said based on T.

Ravi (supra) that the application for modification is not maintainable.

Amendment of decree to be made by Trial Court or the appellate

Court:

69. In Maldar Mahaboob Sab v. Allabaksh

, the question for

consideration was whether the trial Court has got jurisdiction to amend

the decree passed by the first appellate Court exercising jurisdiction

under Section 152 of the CPC and if so, under what circumstances?

70. In Maldar Mahaboob Sab (supra) the plaintiff’s suit for partition

and separate possession for 1/3

share was dismissed. The appeal was

allowed. A preliminary decree, granting a share to the plaintiff alone was

passed. The final decree was passed as per preliminary decree.

Subsequently, the defendants noticed that in the preliminary decree the

appellate Court apportioned the share of the plaintiff alone, without any

apportionment to the defendants. They filed application for amendment of

the final decree in the appellate Court. The same was returned on the

ground that it was only the Trial Court, which was competent to amend

the final decree. The defendants filed the application before the Trial

Court which was rejected on the ground that any amendment in the Trial

Court decree would amount to the amendment in the appellate Court

decree. In CRP this Court held that the decree passed by the Court of

first instance merged with that of the decree passed by the first appellate

court by way of reversal and it was only the decree of the first appellate

2004(2) ALD 152

court that was to be executed. The provisions of Sections 152 & 153-A of

CPC and the judgement of the Kerala high court in Kannan v. Narayani

(Full Bench) were taken into considerations in holding that the trial Court

had rightly dismissed the application as the decree of the trial Court had

been reversed by the appellate Court and it was the appellate court alone

that could exercise the jurisdiction, to amend the decree, under section

152 CPC.

71. In Kannan (supra) the full bench of the Kerala High court held that

section 153-A implies that in cases of disposal of the appeals otherwise

than under order 41 rule 11 the court of first instance would not have the

power to amend the decree or order and had further held that except in

cases to which section 153-A of CPC applies, where there has been an

appeal the decree under appeal merges in the decree in appeal and it is

only the appellate court that could correct or amend the decree under

section 152 of CPC. The relevant part of the judgement in para 7 reads

as under:

“7. .............................. Apparently, the legislature did not think it

necessary to make any provision in regard to the amendment in cases

where appeals are disposed of not under Order XLI, Rule 11 but on the

merits. Section 153-A eloquently Implies that in cases of disposal of

appeals otherwise than under Order XLI, Rule 11 the Court of first

instance would not have the power to amend its decree or order.

In these circumstances we hold that except in cases to which Section

153-A of the Code of Civil Procedure applies, where there has been an

AIR 1980 Ker 76

appeal, the decree under appeal merges in the decree in appeal and it

is only the appellate court that could correct or amend the decree under

Section 152 of the Code. In this view the order of the court below is

correct and calls for no interference. The Revision Petition is dismissed.

Parties are directed to suffer costs.”

72. In Maldar Mahaboob Sab (supra) and in Kannan (supra) the

principle of merger of the trial court decree in the appellate Court’s decree

was applied. The introduction of section 153-A of CPC was given due

weight. Section 153A CPC reads as under:

153A. Power to amend decree or order where appeal is summarily

dismissed.—Where an Appellate Court dismisses an appeal under

rule 11 of Order XLI, the power of the Court to amend, under section

152, the decree or order appealed against may be exercised by the

Court which had passed the decree or order in the first instance,

notwithstanding that the dismissal of the appeal has the effect of

confirming the decree or order, as the case may be, passed by the

Court of first instance.

73. Section 153A conferred power on the trial Court to amend the

decree passed by it where the trial Courts decree was confirmed by the

appellate court by dismissal of the appeal under order 41 rule 11 CPC.

74. The view taken was that if the decree of the trial Court has been

modified or reversed it will be the appellate Court alone empowered to

amend the decree and not the Trial Court, and the appellate Court would

be empowered under Section 152 CPC.

75. Section 152 of CPC reads as under:

“152. Amendment of judgments, decrees or orders.—Clerical or

arithmetical mistakes in judgments, decrees or orders or errors arising

therein from any accidental slip or omission may at any time be

corrected by the Court either of its own motion or on the application of

any of the parties.”

76. As per Section 152 CPC the ‘clerical’ or ‘arithmetical’ mistakes in

judgments, decrees or orders or errors arising therein from any accidental

slip or omission may at any time be corrected by the Court either of its

own motion or on the application of any of the parties.

77. We have our different views regarding application of Section 152 in

different kinds of cases of amendment in decree. There may be different

situations requiring the trial court decree to be modified. If there are some

clerical or arithmetical mistakes then certainly Section 152 CPC would be

attracted, which specifically provides for clerical or arithmetical mistakes

in judgments, decrees or orders or errors arising therein from any

accidental slip or mission to be corrected by the court either of its own

motion or on the application of any of the parties.

78. But, in a situation, other than clerical or arithmetical mistakes as

contemplated by Section 152 CPC, i.e., as in the present case, where the

decree passed by the Trial Court has been modified by the appellate

Court, and there is no clerical or arithmetical mistake, but the amendment

or modification is required in view of the changed circumstances after the

preliminary decree, viz., death of a P1, affecting the share of the P2 and

son of P1 already determined or due to change in law, i.e., Section 6 of

Hindu Succession Act as substituted vide Act No.10 of 2005. In our view

Section 152 CPC cannot be taken recourse to as those kinds of cases

shall not be covered by Section 152 CPC.

79. In State of Punjab v. Darshan Singh

the Hon’ble Apex Court

held that Section 152 CPC provides for correction of clerical or

arithmetical mistakes in judgments, decrees or orders or errors arising

therein from any accidental slip or omission. The exercise of this power

contemplates the correction of mistakes by the court of its ministerial

actions and does not contemplate passing of effective judicial orders after

the judgment, decree or order. The Hon’ble Apex Court further held that

the corrections contemplated are of correcting only accidental omissions

or mistakes and not all omissions and mistakes which might have been

committed by the court while passing the judgment, decree or order. The

omission sought to be corrected which goes to the merits of the case is

beyond the scope of Section 152 CPC. The Hon’ble Apex Court further

held that no new arguments or rearguments on merits can be entertained

to facilitate such rectification of mistakes. The provision cannot be

invoked to modify, alter or add to the terms of the original order or decree

so as to, in effect, pass an effective judicial order after the judgment.

80. Paragraphs No.12 and 13 of Darshan Singh (supra) are

reproduced as under:

“12. Section 152 provides for correction of clerical or arithmetical

mistakes in judgments, decrees or orders or errors arising therein from

(2004) 1 SCC 328

any accidental slip or omission. The exercise of this power contemplates

the correction of mistakes by the court of its ministerial actions and does

not contemplate passing of effective judicial orders after the judgment,

decree or order. The settled position of law is that after the passing of

the judgment, decree or order, the same becomes final subject to any

further avenues of remedies provided in respect of the same and the

very court or the tribunal cannot and, on mere change of view, is not

entitled to vary the terms of the judgments, decrees and orders earlier

passed except by means of review, if statutorily provided specifically

therefore and subject to the conditions or limitations provided therein.

The powers under Section 152 of the Code are neither to be equated

with the power of review nor can be said to be akin to review or even

said to clothe the court concerned under the guise of invoking after the

result of the judgment earlier rendered, in its entirety or any portion or

part of it. The corrections contemplated are of correcting only accidental

omissions or mistakes and not all omissions and mistakes which might

have been committed by the court while passing the judgment, decree

or order. The omission sought to be corrected which goes to the merits

of the case is beyond the scope of Section 152 as if it is looking into it

for the first time, for which the proper remedy for the aggrieved party, if

at all, is to file an appeal or revision before the higher forum or review

application before the very forum, subject to the limitations in respect of

such review. It implies that the section cannot be pressed into service to

correct an omission which is intentional, however erroneous that may

be. It has been noticed that the courts below have been liberally

construing and applying the provisions of Sections 151 and 152 of the

Code even after passing of effective orders in the lis pending before

them. No court can, under the cover of the aforesaid sections, modify,

alter or add to the terms of its original judgment, decree or order. Similar

view was expressed by this Court in Dwaraka Das v. State of

M.P. [(1999) 3 SCC 500] and Jayalakshmi Coelho v. Oswald Joseph

Coelho [(2001) 4 SCC 181] .

13. The basis of the provision under Section 152 of the Code is

founded on the maxim “actus curiae neminem gravabit” i.e. an act of

court shall prejudice no man. The maxim “is founded upon justice and

good sense; and affords a safe and certain guide for the administration

of the law”, said Cresswell, J. in Freeman v. Tranah [12 CB 406 : 138

ER 964] (ER p. 967). An unintentional mistake of the court which may

prejudice the cause of any party must and alone could be rectified.

In Master Construction Co. (P) Ltd. v. State of Orissa [AIR 1966 SC

1047 : (1966) 17 STC 360] it was observed that the arithmetical mistake

is a mistake of calculation, a clerical mistake is a mistake in writing or

typing whereas an error arising out of or occurring from accidental slip or

omission is an error due to careless mistake on the part of the court,

liable to be corrected. To illustrate this point it was said that in a case

where the order contains something which is not mentioned in the

decree, it would be a case of unintentional omission or mistake as the

mistake or omission is attributable to the court which may say something

or omit to say something which it did not intend to say or omit. No new

arguments or rearguments on merits can be entertained to facilitate

such rectification of mistakes. The provision cannot be invoked to

modify, alter or add to the terms of the original order or decree so as to,

in effect, pass an effective judicial order after the judgment in the case.”

81. Then, it may be, by invoking the power under Section 151 CPC

which saves the inherit powers of the Court in the ends of the justice.

82. Section 151 CPC reads as under:

151. Saving of inherent powers of Court.—Nothing in this Code shall

be deemed to limit or otherwise affect the inherent power of the Court to

make such orders as may be necessary for the ends of justice or to

prevent abuse of the process of the Court.

83. Section 151 CPC it is settled in law can be invoked if there is no

provision to the contrary. Even if there is no specific provision, the

inherent power, in the changed circumstances to modify or alter the

decree, in the circumstances other than under Section 152 of CPC, can

be invoked to amend the preliminary decree or to pass second

preliminary decree. We do not find any specific provision in the CPC

curtailing such power of the appellate Court. When the ends of justice

require to amend the preliminary decree due to changed circumstances of

fact or law in a partition suit the preliminary decree passed by the

appellate Court can be altered or modified or second preliminary decree

can be passed, invoking its inherent jurisdiction saved by Section 151

CPC.

84. In National Institute of Mental Health & Neuro Sciences v. C.

Parameshwara

the Hon’ble Apex Court referring to its previous

judgment in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth

Hiralal

reiterated that the inherent jurisdiction of the court to make

orders ex debito justitiae is undoubtedly affirmed by Section 151 CPC, but

that jurisdiction cannot be exercised so as to nullify the provisions of the

Code, where the Code deals expressly with a particular matter, the

provision should normally be regarded as exhaustive. Paragraph No.12 of

C. Parameshwara (supra) reads as under:

“12. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja

Seth Hiralal [AIR 1962 SC 527 : 1962 Supp (1) SCR 450] it has been

held that inherent jurisdiction of the court to make orders ex debito

(2005) 2 SCC 256

AIR 1962 SC 527

justitiae is undoubtedly affirmed by Section 151 CPC, but that

jurisdiction cannot be exercised so as to nullify the provisions of the

Code. Where the Code deals expressly with a particular matter, the

provision should normally be regarded as exhaustive. In the present

case, as stated above, Section 10 CPC has no application and

consequently, it was not open to the High Court to bypass Section 10

CPC by invoking Section 151 CPC’.

85. In Ram Prakash Agarwal v. Gopi Krishan

the Hon’ble Apex

Court held that the power under Section 151 CPC is absolutely essential

for securing the ends of justice and to overcome the failure of justice.

The Court under Section 151 CPC may adopt any procedure to do

justice, unless the same is expressly prohibited. The Hon’ble Apex Court

further observed that the inherent powers may be exercised ex debito

justitiae in those cases, where there is no express provision in CPC.

However, the said powers cannot be exercised in contravention of, or in

conflict with, or upon ignoring express and specific provisions of the law.

86. Paragraphs No.13 and 14 of Ram Prakash Agarwal (supra) read

as under:

“13. Section 151 CPC is not a substantive provision that confers the

right to get any relief of any kind. It is a mere procedural provision which

enables a party to have the proceedings of a pending suit conducted in

a manner that is consistent with justice and equity. The court can do

justice between the parties before it. Similarly, inherent powers cannot

be used to re-open settled matters. The inherent powers of the Court

must, to that extent, be regarded as abrogated by the legislature. A

(2013) 11 SCC 296

provision barring the exercise of inherent power need not be express, it

may even be implied. Inherent power cannot be used to restrain the

execution of a decree at the instance of one who was not a party to suit.

Such power is absolutely essential for securing the ends of justice, and

to overcome the failure of justice. The Court under Section 151 CPC

may adopt any procedure to do justice, unless the same is expressly

prohibited.

14. The consolidation of suits has not been provided for under any of

the provisions of the Code, unless there is a State amendment in this

regard. Thus, the same can be done in exercise of the powers under

Section 151 CPC, where a common question of fact and law arise

therein, and the same must also not be a case of misjoinder of parties.

The non-consolidation of two or more suits is likely to lead to a

multiplicity of suits being filed, leaving the door open for conflicting

decisions on the same issue, which may be common to the two or more

suits that are sought to be consolidated. Non-consolidation may,

therefore, prejudice a party, or result in the failure of justice. Inherent

powers may be exercised ex debito justitiae in those cases, where there

is no express provision in CPC. The said powers cannot be exercised in

contravention of, or in conflict with, or upon ignoring express and

specific provisions of the law. [See B.V. Patankar v. C.G. Sastry [AIR

1961 SC 272] , Ram Chandra Singh v. Savitri Devi [(2004) 12 SCC 713 :

AIR 2004 SC 4096] , Jet Ply Wood (P) Ltd. v. Madhukar

Nowlakha [(2006) 3 SCC 699 : AIR 2006 SC 1260] , SBI v. Ranjan

Chemicals Ltd. [(2007) 1 SCC 97] , State of Haryana v. Babu

Singh [(2008) 2 SCC 85 : (2008) 1 SCC (Civ) 468 : (2008) 1 SCC (L&S)

386] , Durgesh Sharma v. Jayshree [(2008) 9 SCC 648 : AIR 2009 SC

285] , Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai

Banking Corpn. [(2009) 8 SCC 646 : (2009) 3 SCC (Civ) 481]

and Rajendra Prasad Gupta v. Prakash Chandra Mishra [(2011) 2 SCC

705 : (2011) 1 SCC (Civ) 548 : AIR 2011 SC 1137] .]”

87. The inherent powers can be exercised or invoked as there is no

express provision, in the CPC for modification or correction in the decree

under the circumstances as in the present case. The exercise of inherent

powers would not be in contravention or in conflict with any specific

provision of law. Rather the modification in view of the changed law and

change factual circumstances would secure giving effect to the changed

circumstances, as per law in a suit for partition to clearly specify the

correct share of the respective parties in view of the change, which it is

the duty of the Court to do in a suit for partition for once and all.

88. The provision which specifically deal for correction of the decree is

Section 152 CPC which does not contemplate the situation as in the

present case. Consequently, there is no bar in invoking the provisions of

Section 151 CPC in a situation not contemplated by Section 152 CPC.

89. Additionally, on the principle that there can be more than one

preliminary decree in a suit for partition, in the changed circumstances,

factual or legal, effecting the rights and share of the parties when no final

decree has been passed, it can be so done in the exercise of the

appellate powers itself, as the suit for partition is considered pending till

the final decree is passed.

90. We are of the further view that in a partition suit if the proceedings

are pending at the stage of preparation of the final decree, and since after

passing of the preliminary decree, there are some changes factual or

legal, substitution of Section 6 of the Hindu Succession Act or/and the

death of plaintiff No.1 (mother), effecting the change in the shares of the

parties, such change can also be given effect to by the learned trial Court

in the proceedings pending for preparation of final decree or even if the

appeal is pending against the final decree in that appeal as well and any

change or modification in the original preliminary decree would not be

necessarily required. Such change in the position factual or the legal can

be taken due care of by the trial Court or the appellate Court as the case

may be, before which the final decree proceedings are pending either at

the initial stage or at the appellate stage. We are of the said view for

what has been held by the Hon’ble Apex Court in Vineeta Sharma

(supra) of which the relevant part is as under:

“129. (iv)…….Notwithstanding that a preliminary decree has been

passed the daughters are to be given share in coparcenary equal to that

of a son in pending proceedings for final decree or in an appeal.”

Similarly, in Prema (supra) also the Hon’ble Apex Court held in

paragraph-11 as under:

“11…….. if after passing of preliminary decree in a partition suit but

before passing of final decree, there has been enlargement or

diminution of the shares of the parties or their right has been altered by

statutory amendment, the Court is duty bound to decide the matter

and pass final decree keeping in view the change scenario………”

Further, in paragraph-14 of Prema (supra) the Hon’ble Apex Court in

clear words observed and held that as the partition suit is required to be

decided in stages, the same can be regarded as fully and completely decided

only when the final decree is passed. If in the interregnum any party to the

partition suit dies, then his/her share is required to be allotted to the surviving

parties and this can be done in the final decree proceedings.

Paragraph-14 of Prema (supra) is reproduced as under:

“14. We may add that by virtue of the preliminary decree passed by

the trial court, which was confirmed by the lower appellate court and the

High Court, the issues decided therein will be deemed to have become

final but as the partition suit is required to be decided in stages, the

same can be regarded as fully and completely decided only when the

final decree is passed. If in the interregnum any party to the partition

suit dies, then his/her share is required to be allotted to the

surviving parties and this can be done in the final decree

proceedings. Likewise, if law governing the parties is amended before

the conclusion of the final decree proceedings, the party benefited by

such amendment can make a request to the court to take cognizance of

the amendment and give effect to the same. If the rights of the parties

to the suit change due to other reasons, the court seized with the

final decree proceedings is not only entitled but is duty-bound to

take notice of such change and pass appropriate order. In this

case, the Act was amended by the State Legislature and Sections 6-A to

6-C were inserted for achieving the goal of equality set out in the

Preamble of the Constitution. In terms of Section 2 of Karnataka Act 23

of 1994, Section 6-A came into force on 30-7-1994 i.e. the date on

which the amendment was published. As on that day, the final decree

proceedings were pending. Therefore, the appellant had every right to

seek enlargement of her share by pointing out that the discrimination

practised against the unmarried daughter had been removed by the

legislative intervention and there is no reason why the court should

hesitate in giving effect to an amendment made by the State Legislature

in exercise of the power vested in it under Article 15(3) of the

Constitution.”

91. The trial Court shall have no jurisdiction to modify the preliminary

decree in the changed circumstances where the trial court decree has

been modified or reversed by the appellate Court. In cases, where the

dismissal of the appeal is, not under Order 41 Rule 11 of CPC, but

otherwise, that is not summary, the principle of merge of the trial court

decree in the appellate court decree would apply. So the trial court would

not be competent to make any modification in the decree passed by it as

its decree has merged in the appellate court decree and it no longer

remains the decree of the trial Court.

Application in the facts of present case; as to whether the

preliminary decree requires modification or not.

92. In the present case Mandlem Veeramma @ Eramma daughter (P2)

was granted 1/6

i.e., equal share to that of the son Busappa (P2’s

brother) 1/6

both children of Vale Mareppa, as also the widow Vale

Nagamma was granted 1/6

under the preliminary decree dated

26.09.2003 passed by the appellate Court. All those three were granted

1/3 share each in ½ share of Vale Mareppa i.e., 1/6 each, in the total

coparcenary property. So, what we find is that even if Section 6 as

substituted was not there in the statute at the time the appellate decree

was passed and also no judgment as in Vineeta Sharma (supra) the

daughter (P2) had already been given equal share to that of the son of

Mareppa.

93. We are not entering into the aspect as to how the daughter (P2)

was entitled and could be given 1/6

share along with son and widow of

her father, at that time, as we cannot and should not reopen the original

preliminary appellate decree to that effect and extent. What has been

given to the daughter (P2) under the original appellate preliminary decree

dated 26.09.2003, she cannot be deprived of the same due to change in

law, i.e., substituted Section 6 of the Hindu Succession Act pending the

suit for partition, after the original appellate preliminary decree but before

passing of the final decree. In view of the declaration of law in Vineeta

Sharma (supra) the daughter P2 would certainly be entitled to what has

been given to her under the original appellate preliminary decree.

94. During the pendency of the partition suit Vale Nagamma the mother

(P1) died. So, we are of the view that her 1/6

share (i.e., 1/3 of ½)

granted in the original preliminary appellate decree dated 26.09.2003

shall go to her legal heirs as per the Hindu Succession Act, 1956.

95. Section 15 of the Hindu Succession Act, 1956 provides as under in

the case of death of a female:

“15. General rules of succession in the case of female

Hindus.―(1) The property of a female Hindu dying intestate shall

devolve according to the rules set out in section 16,―

(a) firstly, upon the sons and daughters (including the children of

any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1),―

(a) any property inherited by a female Hindu from her father or mother

shall devolve, in the absence of any son or daughter of the

deceased(including the children of any pre-deceased son or daughter)

not upon the other heirs referred in sub-section (1) in the order

specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from

her father-in-law shalldevolve, in the absence of any son or daughter

of the deceased (including the children of any pre-deceased son or

daughter) not upon the other heirs referred to in sub-section (1) in the

order specified therein, but upon the heirs of the husband.”

96. Under Section 15(1) (a) of the Hindu Succession Act, the share of

P1 mother i.e., 1/6

, shall go equally to the daughter (P2) and to the

children of predeceased son Busappa (son of P1). So, in this way both P2

(daughter) and Busappa (son) would be entitled to ½ share each in the

coparcenary suit property of their father Vale Mareppa.

97. The preliminary decree dated 26.09.2003 is required to be

modified to the extent of declaring and allotting ½ share in the ½ share of

the father, to Busappa and to the same extent of ½ share in the ½ share

of the father, to the daughter (P2).

98. The original appellate preliminary decree dated 26.09.2003 shall be

modified to that extent only. The rest, remaining the same. The second

preliminary decree deserves to be drawn up accordingly.

VIII. Conclusions:

99. We sum up our conclusions as follows:

i) There can be more than one preliminary decree in a partition suit

under the circumstances e.g. a) death or birth effecting the shares of

the parties or/and b) the change in the legal position such as

substituted Section 6 of the Hindu Succession Act substituted by Act

No.39 of 2005 granting equal share to the daughter in the

coparcenary of the father, subject to the fulfillment of the conditions

imposed by the substituted Section 6 itself.

ii) The final decree is to be passed in consonance with the

preliminary decree. If the preliminary decree requires to be modified

in view of the changed circumstances, factual or legal, an application

for modification of or for fresh second preliminary decree shall be

maintainable so long as the final decree proceedings are pending

but not afterwards.

iii) A preliminary decree which has not been challenged under

Section 97 CPC attains finality, which shall ordinarily preclude from

disputing its correctness in any appeal which may be preferred from

the final decree.

iv) However, that finality attached to the preliminary decree shall not

affect passing of the second preliminary decree due to change in law

or death or birth of a person affecting the shares of the parties under

the original preliminary decree. Such a contingency is not

contemplated by Section 97 CPC. So, in the specified changed

circumstances of fact or of law as aforesaid, the preliminary decree

is open for correction and modification even if the appeal was not

preferred. Section 97 CPC will not bar such modification or

correction in such circumstances.

v) If no appeal has been filed against the preliminary decree of the

Trial Court; or the appeal has been filed but dismissed under Order

41 Rule 11 CPC, the Trial Court shall have the power and jurisdiction

to pass second preliminary decree or to make modifications in the

preliminary decree passed by it.

vi) If in appeal the Trial Courts decree has been affirmed by

dismissal of the appeal on merits, but not under Order 41 Rule 11

CPC i.e., summary dismissal, or where the appellate Court allows

the appeal and modifies the Trial Court’s preliminary decree, any

modification in the circumstances necessitating such modification,

can be made only by the appellate Court, on the doctrine of merger

of the Trial Court’s decree in the appellate Court’s decree.

vii) Under Section 152 CPC only clerical or arithmetical mistakes

can be corrected. Any correction or change in the preliminary

decree, under any circumstance, other than clerical or arithmetical

mistake, may be because of the change in the factual or legal

position effecting the share of the parties which keeps on fluctuating

till the partition suit is decided finally, cannot be made under Section

152 CPC.

viii) In such a situation as in clause (vii) supra the inherent

powers of the Court saved by Section 151 CPC can be invoked,

subject to the scope and limitations on exercise of power under

Section 151 CPC.

(ix) In a partition suit if any change factual or legal takes place

the change in the shares of the parties already determined in the

preliminary decree, and the final decree proceedings being pending,

such change can be taken due care of and given effect by the trial

Court where the final decree proceedings are pending or even by the

appellate Court in case the appeal is pending against the final

decree.

x) Under the original appellate preliminary decree, the daughter

(P2) was given 1/6 share equal to son Busappa even though

substituted Section 6 of Hindu Succession Act was not there at that

time but what has been given to (P2) cannot be taken away now, in

view of the substituted Section 6 of Hindu Succession Act and the

law declared in Vineeta Sharma (supra) under which a daughter is

entitled in the coparcenary of her father equal to a son.

xi) Mandlem Veeramma @ Eramma daughter (P2) was alive on

09.09.2025. There was no partition of the coparcenary property of

her father before 20.12.2004. The final decree proceedings are still

pending.

xii) Vale Nagamma the mother (P1) has died. Her 1/6

share as

determined in the original preliminary decree shall equally be

succeeded by Mandlem Veeramma @ Eramma (daughter) (P2) and

Busappa (son) under Section 15(1)(a) of the Hindu Succession Act.

So both, daughter (P2) and son shall have ½ share each in ½ of

their father.

xiii) The preliminary decree dated 26.09.2003 is required to be

modified to the extent of declaring and allotting ½ share to Busappa

(son) and ½ share to Mandlem Veeramma @ Eramma (daughter) in

the ½ share of their father Vale Mareppa, in his coparcenary i.e.,

1/4

each.

xiv) The original appellate preliminary decree dated 26.09.2003

shall be modified to the extent as in clause (xiii) supra, only. The rest

remaining the same. The second preliminary decree shall be drawn

accordingly.

100. We clarify that notwithstanding the change in the share of the

daughter (P2) from 1/6 (i.e., 1/3

in ½ of the father) to ¼ (i.e., ½ in ½ of

the father), the subsequent purchasers, the applicants in I.A.No.1 of

2026 shall not be entitled for that enhanced share or any part thereof in

excess of what has been transferred to them by P2 and only in terms of

their sale deed(s) (deed of conveyance) and subject to its proof. They

shall however be entitled, for the equity to be adjusted in the final decree

proceedings in accordance with law.

IX. Result:

101. I.A.Nos.1 & 3 of 2026 are allowed in the following terms:

a) The preliminary decree dated 26.09.2003 shall be modified to the

extent of declaring and allotting ½ share to Busappa (son) in the ½

share of the father Vale Mareppa (i.e., 1/4) and to the extent of

another ½ share to Mandlem Veeramma @ Eramma (daughter) in

the ½ share of the father Vale Mareppa (i.e., 1/4) in the coparcenary

suit property.

b) The original appellate preliminary decree dated 26.09.2003 shall

be modified to the extent as in (a) (supra) only. The rest remaining

the same. The modified/second preliminary decree shall be drawn

accordingly.

102. The learned Trial Court shall proceed as per the modified

preliminary decree in terms of this judgment, and shall expeditiously

decide the final decree proceedings, say, within 6 months from the date a

certified copy of this judgment and the decree is placed before the

Learned Trial Court.

103. There is no need to pass orders in I.A.Nos.2 & 4 of 2026 which are

for stay of the final decree proceedings which IA(s) shall stand closed.

No orders as to costs.

Pending miscellaneous petitions, if any, shall stand closed in

consequence.

_______________________

RAVI NATH TILHARI, J

______________________

BALAJI MEDAMALLI, J

Date: .05.2026

Dsr/AG

Note:

LR copy to be marked

B/o

Dsr/AG

HIGH COURT OF ANDHRA PRADESH

* * * *

I.A. Nos. 1, 2, 3 & 4 of 2026

A.S. No. 118 of 1990

I.A.Nos.1 & 2 of 2026

Between:

Y.Rukinamma and 2 others

.....PETITIONERS

AND

Smt. Sagire Nagendramma and 15 others

.....RESPONDENTS

I.A.Nos.3 & 4 of 2026

Between:

M.Indira and another

.....PETITIONERS

AND

Smt. Sagire Nagendramma and 16 others

.....RESPONDENTS

DATE OF JUDGMENT RESERVED : 13.03.2026

DATE OF JUDGMENT PRONOUNCED : 05.05.2026

DATE OF JUDGMENT UPLOADED : 05.05.2026

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

THE HON'BLE SRI JUSTICE BALAJI MEDAMALLI

1. Whether Reporters of Local newspapers may

be allowed to see the Judgments?

Yes/No

2. Whether the copies of judgment may be

marked to Law Reporters/Journals

Yes/No

3. Whether Your Lordships wish to see the fair

copy of the Judgment?

Yes/No

_______________________

RAVI NATH TILHARI, J

____________________

BALAJI MEDAMALLI, J

* THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

THE HON'BLE SRI JUSTICE BALAJI MEDAMALLI

+ I.A. Nos. 1, 2, 3 & 4 of 2026

A.S. No. 118 of 1990

% .05.2026

I.A.Nos.1 & 2 of 2026

Between:

Y.Rukinamma and 2 others

.....PETITIONERS

AND

Smt. Sagire Nagendramma and 15 others

.....RESPONDENTS

I.A.Nos.3 & 4 of 2026

Between:

M.Indira and another

.....PETITIONERS

AND

Smt. Sagire Nagendramma and 16 others

.....RESPONDENTS

! Counsel for the Petitioners : Sri Virupaksha Dattatreya Gouda in

I.A.Nos.1 & 2 of 2026 and

Sri T.Nikhilesh in I.A.Nos.3 & 4 of 2026

Counsel for the Respondent No.1 : Sri Salar Aatif

Counsel for respondent Nos.2 & 3 : Sri P. Rajasekhar

< Gist :

> Head Note:

? Cases Referred:

1. (2020) 9 SCC 1

2. AIR 1958 SC 394

3. 2017 (2) ALD 1

4. AIR 1967 SC 1470

5. (1991) 3 SCC 647

6. AIR 2000 AP 193

7. (2009) 13 SCC 179

8. (2011) 9 SCC 788

9. (2011) 6 SCC 462

10. 2023 SCC OnLine SC 2553

11. AIR 1980 Ker 76

12. (2017) 7 SCC 342

13. Order dt.8.12.2006 in SLP(C)No.11792-11793/2004

14. AIR 1966 SC 1879

15. (2020) 14 SCC 436

16. 2024 SCC OnLine Bom 3541

17. Manu/SC/1216/2011

18. AIR 1967 SC 1470

19. (1991) 3 SCC 647

20. (2009) 13 SCC 179

21. 2011 (6) SCC 462

22. 2023 SCC OnLine SC 2553

23. (2017) 7 SCC 342

24. 2004 (2) ALD 152

25. AIR 1980 Ker 76

26. (2004) 1 SCC 328

27. (2005) 2 SCC 256

28. AIR 1962 SC 527

29. (2013) 11 SCC 296

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

THE HON’BLE SRI JUSTICE BALAJI MEDAMALLI

I.A. Nos. 1, 2, 3 & 4 of 2026

A.S. No. 118 of 1990

Date: .05.2026

Dsr/AG

Note:

LR copy to be marked

B/o

Dsr/AG

Reference cases

Vineeta Sharma Vs. Rakesh Sharma & Ors.

01:59 mins | 1 | 11 Aug, 2020

Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal

mins | 1 | 09 Dec, 1961

Y.Rukinamma and others; M.Indira and another Vs. Smt. Sagire Nagendramma...

01:55 mins | | 05 May, 2026

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