REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION   

CIVIL APPEAL NO. 2481 OF 2005

Prema ……Appellant

Versus

Nanje Gowda and others ……Respondents

J U D G M E N T

G.S. Singhvi,  J.

1. The question which arises for consideration in this appeal is whether  

the appellant, who failed in her challenge to the preliminary decree passed in  

a suit for partition filed by respondent No.1 can seek enhancement of her  

share in the joint family property in the final decree proceedings in terms of  

Section 6A inserted in the Hindu Succession Act, 1956 (for short, “the Act”)  

by  the  Hindu  Succession  (Karnataka  Amendment)  Act,  1990,  which  

received  Presidential  assent  on  28.7.1994  and  was  published  in  the  

Karnataka Gazette dated 30.7.1994.

2. The suit  for partition and separate  possession of his  share filed by  

respondent No.1, which came to be registered as O.S. No.425 of 1989, was  

decreed  by  Munsiff,  Srirangapatna  (hereinafter  described  as,  `the  trial  

Court’) vide judgment dated 11.8.1992.  The trial Court held that plaintiff-

respondent No.1 and defendant No.3 are entitled to 2/7th share and defendant  

Nos.1, 4, 5 and 6 are entitled to 1/28th share each.

3. Regular Appeal No.69 of 1992 jointly filed by the appellant, who was  

defendant No.6 in the suit and defendant Nos.1, 4 and 5 was dismissed by  

Civil Judge (Senior Division), Srirangapatna (hereinafter described as `the  

lower  appellate  Court’)  vide judgment  dated 20.3.1998.  Regular  Second  

Appeal No.624 of 1998 filed by defendant Nos.1, 4 and 5 was dismissed by  

the High Court vide order dated 1.10.1999 on the ground that the same was  

barred by limitation.

4. In the meanwhile, respondent No.1 instituted final decree proceedings  

(FDP No.5 of 1999).  On being noticed by the trial Court, the appellant filed  

an  application  under  Sections  151,  152  and  153  of  the  Code  of  Civil  

Procedure (CPC) for amendment of the preliminary decree and for grant of a  

declaration  that  in  terms of  Section  6A inserted  in  the  Act  by  the  State  

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Amendment,  she  was  entitled  to  2/7th share  in  the  suit  property.   The  

appellant  averred  that  she  had  married  one  Shri  M.B.  Srinivasaiah  on  

9.8.1994, i.e. after coming into force of the State Amendment and, as such,  

she is entitled to higher share in the joint family property.   Respondent No.1  

contested  the  application  by  asserting  that  with  the  dismissal  of  Regular  

Second  Appeal  No.  624  of  1998,  the  preliminary  decree  passed  in  O.S.  

No.425 of 1989 will be deemed to have become final and in the final decree  

proceedings the appellant cannot claim higher share by relying upon Section  

6A which came into force in 1994. He denied the appellant’s assertion about  

her marriage on 9.8.1994.  In the alternative,  he pleaded that even if  the  

marriage  certificate  produced  by  the  appellant  is  treated  as  genuine,  she  

cannot claim higher share by relying upon the State Amendment.

5. By an order dated 10.7.2000, the trial Court dismissed the appellant’s  

application  primarily  on  the  ground  that  Section  6A  of  the  Act  is  not  

retrospective.  In the opinion of the trial Court, the amendment made in the  

Act can be applied only to those cases in which partition of the joint family  

properties is effected after 30.7.1994, but the same cannot be relied upon for  

amending the decree, which has become final. The trial Court observed that  

even if the daughter remains unmarried, she cannot be treated as coparcener  

because after  partition,  there remains no joint  family property.   The trial  

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Court  also held that  the application filed by the appellant  was barred by  

time.

6. The appellant’s challenge to the aforesaid order was negatived by the  

learned Single Judge, who held that with the dismissal of the second appeal,  

the preliminary decree passed by the trial Court had become final and during  

the pendency of the second appeal filed by defendant Nos. 1, 4 and 5, the  

appellant had not prayed for enhancement of her share in the joint family  

property  in  terms  of  Section  6A,  which  was  inserted  by  the  State  

Amendment.  The learned Single Judge relied upon the judgments of this  

Court in Venkata Reddy v. Pethi Reddy AIR 1963 SC 992, Gyarsi Bai v.  

Dhansukh Lal AIR 1965 SC 1055 and Mool Chand v. Deputy Director,  

Consolidation (1995) 5 SCC 631 and held that the application filed by the  

appellant could not be entertained in the final decree proceedings instituted  

by respondent No.1.  The learned Single Judge distinguished the judgment  

in  S. Sai Reddy v. S. Narayana Reddy (1991) 3 SCC 647, upon which  

reliance was placed by the appellant by observing that the two-Judge Bench  

had not referred to the earlier judgments of the larger Benches.  

7. Shri  S.N.  Bhat,  learned  counsel  for  the  appellant  argued that  even  

though the appellant did not seek modification of the preliminary decree by  

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joining  other  defendants  who  had  filed  Regular  Second  Appeal  No.  

624/1998, the application filed by her could not have been dismissed as not  

maintainable  because  till  then  the  joint  family  property  had  not  been  

partitioned.   He submitted that  in a  partition suit,  the preliminary decree  

passed  by  the  competent  Court  does  not  become  effective  till  the  suit  

property is actually divided in accordance with law and the same can be  

modified for good and sufficient reasons.  Learned counsel submitted that by  

virtue of Section 6A, the appellant had become entitle to higher share in the  

joint  family  property  and  the  trial  Court  and  the  High  Court  committed  

serious error by negating her claim on a wrong assumption that the benefit of  

amendment  cannot  be  availed  by  the  appellant  in  the  final  decree  

proceedings.   In  support  of  his  arguments,  Shri  Bhat  relied  upon  the  

judgments of this Court in  Phoolchand v. Gopal Lal AIR 1967 SC 1470  

and S. Sai Reddy v. S. Narayana Reddy (supra).   

8. Mrs. K. Sarada Devi, learned counsel for the respondents argued that  

the trial Court and the High Court did not commit any error by rejecting the  

appellant’s  claim for higher share because with the passing of decree for  

partition and separate possession, the suit property lost its character as joint  

family property and the appellant was not entitled to claim anything from the  

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shares  already  allotted  to  other  members  of  the  erstwhile  joint  family  

property.

9. In the pre-Independence era, social reformers like Raja Ram Mohan  

Roy, Lokmanya Tilak, Mahatma Phule and Mahatma Gandhi took up the  

cause of women and relentlessly worked for promotion of female education,  

re-marriage of widows and elimination of child marriage.  The concept of  

widow’s  estate  was  also  developed  during  that  period  which  led  to  

enactment of Hindu Women’s Right to Property Act, 1937.  The framers of  

the Constitution were great visionaries.  They not only placed justice and  

equality at the highest pedestal, but also incorporated several provisions for  

ensuring that the people are not subjected to discrimination on the ground of  

caste, colour, religion or sex. Article 14 of the Constitution declares that the  

State  shall  not  deny  to  any  person  equality  before  the  law or  the  equal  

protection of the laws within the territory of India.  Article 15 lays down that  

the  State  shall  not  discriminate  against  any  citizen  on  grounds  only  of  

religion, race, caste, sex, place of  birth or any of them and no citizen shall  

be subjected to any disability, liability, restriction or condition on grounds of  

religion, race, caste, sex, place of birth or any of them in the matter of access  

to shops, public restaurants, hotels and places of public entertainment; or the  

use  of  wells,  tanks,  bathing  ghats,  roads  and  places  of  public  resort  

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maintained wholly or partly out of State funds dedicated to the use of the  

general public.  Clause (3) of Article 15 contains an enabling provision and  

lays down that nothing in that article shall prevent the State from making  

any special provision for women and children.  Similar provisions have been  

made in Article 16 in the matter of public employment.   

10. With a view to achieve the goal of equality enshrined in Articles 14  

and  15(1)  of  the  Constitution  and  to  eliminate  discrimination  against  

daughters, who were deprived of their right to participate in the coparcenary  

property, the Karnataka legislature amended the Act and inserted Sections  

6A to 6C for ensuring that the unmarried daughters get equal share in the  

coparcenary property.  This is evident from the preamble and Sections 1 and  

2 of the Karnataka Act No.23 of 1994, the relevant portions of which are  

reproduced below:

“KARNATAKA ACT No. 23 OF 1994

THE  HINDU  SUCCESSION  (KARNATAKA  AMENDMENT) ACT, 1990

An  Act  to  amend  the  Hindu  Succession  Act,  1956  in  its  application to the State of Karnataka;  

WHEREAS the Constitution of India has proclaimed equality  before law as a fundamental right;

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And whereas the exclusion of the daughter from participation in  co-parcenary ownership merely by reason of her sex is contrary  thereto;

And whereas the beneful system of dowry has to be eradicated  by positive measure which will simultaneously ameliorate the  condition of women in the Hindu society;

Be it enacted by the Karnataka State Legislature in the Forty- first year of the Republic of India as follows:

1. Short title and commencement. – (1) This Act may be called  the Hindu Succession (Karnataka Amendment) Act, 1990.

(2) It shall come into force at once.

2. Insertion of new sections in Central Act XXX of 1956. – In  the Hindu Succession Act,  1956 (Central  Act XXX of 1956)  after  Section  6,  the  following  sections  shall  be  inserted,  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 coparcener shall by birth become 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;

 (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;

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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: –   

(c)  any  property  to  which  a  female  Hindu  becomes  entitled by virtue of the provisions of clause (a) 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;  

(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.”  

11. Similar provisions were inserted in the Act by the legislatures of the  

States  of  Andhra  Pradesh,  Maharashtra  and  Tamil  Nadu.   The  scope  of  

Section 29A which was inserted in the Act by Andhra Pradesh Act No.13 of  

1986 and which is pari materia to Section 6A of the Karnataka Act No.23 of  

1994 was considered by the learned Single Judge of the Andhra Pradesh  

High Court  in  S. Narayana Reddy v.  S.  Sai  Reddy, AIR 1990 Andhra  

Pradesh 263.  The facts of that case were that the preliminary decree passed  

by the trial Court in a partition suit was confirmed by the High Court with a  

direction  that  while  passing  final  decree,  the  trial  Court  shall  make  

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appropriate provision for maintenance and marriage expenses of defendant  

Nos.5 to 9 and maintenance of the third defendant shall be borne equally by  

each of the plaintiff,  first defendant and fourth defendant out of the joint  

family properties.   After  insertion of  Section 29A in the  Act by Andhra  

Pradesh Act No.13 of 1986, the first defendant claimed that defendant Nos.6  

to  9  being  unmarried  daughters  are  entitled  to  shares  at  par  with  their  

brothers  because  the  properties  had not  been divided by then.   The trial  

Court rejected the claim of the first defendant by observing that with the  

dismissal  of  the  appeal  by  the  High  Court,  the  preliminary  decree  had  

become final and the appellant was not entitled to indirectly challenge the  

same.  The learned Single Judge referred to Section 29A, the judgments of  

Mysore High Court in R. Gurubasaviah Rumale Karibasappa and others  

AIR 1955 Mysore 6,  Parshuram Rajaram Tiwari v. Hirabai Rajaram  

Tiwari, AIR  1957  Bombay  59  and  Jadunath  Roy  and  others  v.  

Parameswar Mullick and others  AIR 1940 PC 11 and held that 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 rights have been altered by statutory amendment, the Court is duty  

bound to decide the matter and pass final decree keeping in view the change  

scenario.   

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The learned Single Judge then referred to the judgment of this Court  

in Phoolchand v. Gopal Lal (supra) and observed:

“19. Since the parties have invoked the jurisdiction of the Civil  Court to decide their rights in a partition suit, their rights can be  considered at any stage till the passing of the final decree. Till  the final decree as stated above is passed in a partition suit, it is  well  settled  that  the  suit  is  said  to  be  pending,  till  the  final  decree is signed by the Judge after engrossing the same on the  stamps.  In  view  of  the  insertion  of  S.  29-A  in  the  Hindu  Succession Act by Act (13 of 1986) the statute conferred a right  on  the  daughters  and they  become coparceners  in  their  own  right in the same manner as sons and have the same rights in the  coparcenary property. In this case, admittedly the daughters are  already on record and, therefore,  they are entitled to claim a  right and request the Court to pass a final decree by taking into  account the altered situation……………………………..

20. As pointed out by the Supreme Court in Phoolchand's case,  (AIR 1967 SC 1470) (supra) there is no prohibition in the Code  of Civil Procedure against passing a second preliminary decree  particularly  in  partition  suits  where  shares  specified  in  the  preliminary decree have to be adjusted so long as a final decree  has  not  been  passed  in  that  suit.  On  facts  in  this  case,  a  preliminary decree has been passed giving 1/3rd share to the  plaintiff.  The  shares  of  the  other  persons  also  have  to  be  ascertained and the rights of the unmarried daughters have been  recognised  in  the  preliminary  decree.  There  is  a  statutory  change  by  the  introduction  of  Section  29A  of  the  Hindu  Succession Act which came into force on 5th September, 1985  and the preliminary decree has been passed on 26th December,  1973, but no final decree has been passed. The plaintiff himself  filed an application for passing a final decree and the trial court  is  bound  to  implement  the  statutory  rights  conferred  on  the  daughters  and  it  ought  to  have  allowed  the  petition  in  accordance with law.”

(emphasis supplied)

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12. While  dismissing  the  appeal  preferred  against  the  judgment  of  the  

High Court, this Court observed as under:   

“………………….…..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. …… ………….. 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  

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section  of  the  fair  sex  of  the  benefits  conferred  by  the  amendment……………………”

        (emphasis supplied)

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 No.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 (supra)  and  S. Sai  Reddy v.  S.  

Narayana Reddy (supra), 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  the  Karnataka  Act  No.23  of  1994.   Section  6A  of  the  

Karnataka Act No.23 of  1994 is  identical  to Section 29A of the Andhra  

Pradesh Act.  Therefore, there is no reason why ratio of the judgment in S.  

Sai  Reddy  v.  S.  Narayana  Reddy (supra)  should  not  be  applied  for  

deciding the appellant’s claim for grant of share at 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 the Karnataka Act No.23 of 1994 because she had  

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not filed an application for enforcing the right accruing to her under Section  

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

not challenged the preliminary decree by joining defendant Nos.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  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 ceased 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 6A to 6C were inserted for  

achieving the goal of equality set out in the Preamble of the Constitution.  In  

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terms of Section 2 of the Karnataka Act No.23 of 1994, Section 6A 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 practiced 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.  

15. The  issue  which  remains  to  be  considered  is  whether  the  learned  

Single Judge of the High Court was justified in refusing to follow the law  

laid down in  S. Sai Reddy v. S. Narayana Reddy (supra) on the ground  

that  the  same  was  based  on  the  judgment  of  three-Judge  Bench  in  

Phoolchand v. Gopal Lal (supra) and a contrary view had been expressed  

by the larger Bench in Venkata Reddy v. Pethi Reddy (supra).   

16. In  Phoolchand  v.  Gopal  Lal (supra),  this  Court  considered  the  

question  whether  the  preliminary  decree  passed  in  a  partition  suit  is  

conclusive  for  all  purposes  and  the  Court  before  whom  final  decree  

proceedings  are  pending  cannot  take  note  the  changes  which  may  have  

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occurred after passing of the preliminary decree.  The facts of that case were  

that appellant-Phoolchand had filed a suit in 1937 for partition of his 1/5th  

share in the plaint schedule properties.  Sohanlal (father of the appellant),  

Gopal  Lal  (brother  of  the  appellant),  Rajmal  (minor  adopted  son  of  

Gokalchand (deceased), who was another brother of the appellant) and Smt.  

Gulab Bai (mother of the appellant) impleaded as defendants along with two  

other persons.  The suit was contested up to Mahkma Khas of the former  

State of Jaipur and a preliminary decree for partition was passed on 1.8.1942  

specifying the shares of the appellant and four defendants.  Before a final  

decree could be passed, Sohanlal and his wife Smt Gulab Bai died.  Gopal  

Lal claimed that his father Sohanlal had executed a Will in his favour on  

2.6.1940 and bequeathed  all  his  property  to  him.   Appellant-Phoolchand  

challenged the genuineness of the Will.  He also claimed that Smt Gulab Bai  

had executed a sale deed dated 19.10.1947 in his favour, which was duly  

registered on 10.1.1948.  Gopal Lal challenged the sale deed by contending  

that Gulab Bai had executed the sale deed because she was a limited owner  

of the share in the ancestral  property.  The trial  Court held that the Will  

allegedly executed by Sohan Lal in favour of Gopal Lal had not been proved  

but the sale deed executed by Gulab Bai in favour of Phoolchand was valid.  

As  a  sequel  to  these  findings,  the  trial  Court  redistributed  the  shares  

indicated in the preliminary decree.  As a result,  Phoolchand’s share was  

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increased from one-fifth to one-half  and Gopal Lal’s share was increased  

from one-fifth to one-fourth and that of Rajmal from one-fifth to one-fourth.  

The High Court allowed the appeal filed by Gopal Lal and held that Gulab  

Bai was not entitled to sell her share in favour of appellant-Phoolchand.  The  

High Court also held that the Will executed by Sohan Lal in favour of Gopal  

Lal was genuine.  One of the points considered by this Court was whether  

there could be more than one preliminary decree.  This Court referred to the  

judgments of various High Courts, which took the view that in a partition  

suit, the High Court has jurisdiction to amend the shares suitably even if the  

preliminary decree has been passed and then proceeded to observe:

“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 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; and if there is  

17

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… …………………………….”  

        (emphasis supplied)

17. In  Venkata Reddy v. Pethi Reddy (supra), the Constitution Bench  

was called upon to consider the question as to what meaning should be given  

to the expression ‘final decision’ occurring in the first proviso to Section  

28A of the Provincial Insolvency Act, 1920.  The facts of that case were that  

Venkata Reddy, the father of the appellants, was adjudicated an insolvent by  

the Sub-Court, Salem in I.P. No. 73 of 1935. At that time only appellants  

Nos.1 and 2 were born while the third appellant was born later. The father’s  

one-third share was put  up for auction by the Official  Receiver  and was  

purchased by one Karuppan Pillai for Rs 80/-. The Official Receiver then put  

up for auction the two-third share belonging to appellant Nos.1 and 2 on  

27.7.1936 which was purchased by the same person for Rs 341/-. He sold  

the entire property to the respondent Pethi Reddy on 25.5.1939 for Rs 300/-.  

The appellants  instituted  a  suit  on 1.2.1943 for  the  partition  of  the  joint  

family property to which suit they made Pethi Reddy a party and claimed  

thereunder two-third share in the property purchased by him. In that suit, it  

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was contended on behalf of the respondent that on their father’s insolvency  

the share of the appellants  in the joint family property also vested in the  

Official Receiver and that he had the power to sell it. The contention was  

negatived by the trial Court which passed preliminary decree for partition in  

favour of the appellants. The decree was affirmed in appeal by the District  

Judge and eventually by the High Court  in second appeal,  except with a  

slight variation regarding the amount of mesne profits.  On 18.1.1946, the  

appellants made an application for a final decree which was granted ex parte  

on 17.8.1946.   However,  the  decree  was set  aside  at  the  instance  of  the  

respondent.   By relying upon Section 28A of the Provincial Insolvency Act,  

it was contended by the respondent that the appellants were not entitled to  

the  allotment  of  their  two-third  share  in  the  property  purchased  by  him  

inasmuch as that share had vested in the Official  Receiver.   The District  

Munsiff rejected the contention of the respondent and restored the ex parte  

decree.  The appeal preferred by the respondent was dismissed by Principal  

Subordinate Judge, Salem.  However, the second appeal filed by him was  

allowed by the High Court and the application filed by the appellants for  

passing  final  decree  was  dismissed.   The  Constitution  Bench referred  to  

Section 28A of the Provincial Insolvency Act, which was as under:

 “The property of the insolvent shall comprise and shall always  be deemed to have comprised also the capacity to exercise and  

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to take proceedings for exercising all such powers in or over or  in  respect  of  property  as  might  have  been  exercised  by  the  insolvent  for  his  own  benefit  at  the  commencement  of  his  insolvency or before his discharge:

Provided that nothing in this section shall affect any sale,  mortgage or other transfer of the property of the insolvent by a  Court  or  Receiver  or  the  Collector  acting  under  Section  60  made before the commencement of the Provincial Insolvency  (Amendment) Act, 1948, which has been the subject of a final  decision by a competent court:

Provided further that the property of the insolvent shall  not  be  deemed  by  any  reason  of  anything  contained  in  this  section to comprise his capacity referred to in this section in  respect of any such sale, mortgage or other transfer of property  made in the State of Madras after July 28, 1942 and before the  commencement of the Provincial Insolvency (Amendment) Act,  1948.”

The Court then referred to Objects and Reasons set out in the Bill,  

which led to the enactment of Section 28A and observed:

“The  new  provision  makes  it  clear  that  the  law  is  and  has  always  been  that  upon  the  father’s  insolvency  his  disposing  power over the interest of his undivided sons in the joint family  property vests in the Official  Receiver and that consequently  the latter has a right to sell that interest. The provision is thus  declaratory of the law and was intended to apply to all cases  except those covered by the two provisos. We are concerned  here only with the first proviso. This proviso excepts from the  operation of the Act a transaction such as a sale by an Official  Receiver which has been the subject of a final decision by a  competent Court…………………..”

The Court then held that the preliminary decree passed, whether it is  

in a mortgage suit or a partition suit, is not a tentative decree but is final in  

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so far as the matters dealt with by it are concerned. This is evident from the  

following observations made in the judgment:

“…………………………………A decision is said to be final  when,  so  far  as  the  court  rendering  it  is  concerned,  it  is  unalterable except by resort to such provisions of the Code of  Civil  Procedure  as  permit  its  reversal,  modification  or  amendment. Similarly, a final decision would mean a decision  which would operate as res judicata between the parties if it is  not sought to be modified or reversed by preferring an appeal or  a revision or a review application as is permitted by the Code.  A preliminary decree passed, whether it is in a mortgage suit or  a partition suit, is not a tentative decree but must, in so far as  the  matters  dealt  with  by  it  are  concerned,  be  regarded  as  conclusive. No doubt, in suits which contemplate the making of  two  decrees  a  preliminary  decree  and  a  final  decree  — the  decree which would be executable would be the final decree.  But the finality of a decree or a decision does not necessarily  depend upon its being executable. The legislature in its wisdom  has  thought  that  suits  of  certain  types  should  be  decided  in  stages and though the suit in such cases can be regarded as fully  and completely decided only after a final decree is made the  decision  of  the  court  arrived  at  the  earlier  stage  also  has  a  finality attached to it. It would be relevant to refer to Section 97  of  the Code of Civil  Procedure which provides that  where a  party aggrieved by a preliminary decree does not appeal from it,  he  is  precluded  from disputing  its  correctness  in  any appeal  which may be preferred from the final decree. This provision  thus  clearly  indicates  that  as  to  the  matters  covered  by  it,  a  preliminary decree is regarded as embodying the final decision  of the court passing that decree.”

        (emphasis supplied)

18. In  Gyarsi  Bai  v.  Dhansukh  Lal (supra),  the  three-Judge  Bench  

considered the nature of the preliminary and final decrees in a mortgage suit  

and the question whether the mortgagor is entitled to raise the plea in the  

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final decree proceedings which he did not raise during the pendency of the  

suit up to the stage of preliminary decree.  The facts of the case, as contained  

in the judgment, were that the plaint-schedule properties originally belonged  

to one Noor Mohammad, his wife and son. On 14.9.1936, they mortgaged  

the said properties with possession to B.F. Marfatia for a sum Rs. 25,000.  

On 22.2.1938, the said mortgagors executed a simple mortgage in respect of  

the same properties to one Novat Mal for Rs. 5000. On 21.12.1942, Radha  

Kishan, Har Prasad and Pokhi Ram acquired the equity of redemption in the  

said  properties  in  an  auction-sale  held  in  execution  of  a  money  decree  

against the mortgagors. On 14.2.1950 and 13.3.1950, Seth Girdhari Lal, the  

husband of appellant No.1 herein, purchased the mortgagee rights of Novat  

Mal  and  Marfatia  respectively.  On  1.5.1950,  Girdhari  Lal  was  put  in  

possession of the mortgaged properties. On 22.7.1950, respondent Nos.9 to  

11 purchased the equity of  redemption of  the mortgaged properties  from  

Radha  Kishan,  Har  Prasad  and  Pokhi  Ram.  On  10.8.1950,  Girdhari  Lal  

instituted Civil Suit No. 739 of 1950 in the Court of the Senior Subordinate  

Judge, Ajmer, for enforcing the said two mortgages. In the suit, he claimed  

Rs. 48,919-12-6 as the amount due to him under the said two mortgages. On  

25.4.1953, the Senior Subordinate Judge, Ajmer, gave a preliminary decree  

in the suit for the recovery of a sum of Rs. 34,003-1-6 with proportionate  

costs and future interest; he disallowed interest from 14.9.1936 to 13.3.1950,  

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on the mortgage of Rs. 25,000. The plaintiff-mortgagee preferred an appeal,  

being Civil  Appeal  No.71 of  1953 to  the  Judicial  Commissioner,  Ajmer,  

against  the  said  decree  insofar  as  it  disallowed  interest  to  him.  The  

defendants preferred cross-objections in respect of that part of the decree  

awarding  costs  against  them.  On  25.7.1953,  the  defendants  filed  an  

application under Order XXXIV Rule 5(1) of the CPC, seeking permission  

to deposit the decretal amount in court and praying that possession of the  

properties may be directed to be delivered to them and also for directing the  

decree-holder to render accounts of the profits of the mortgaged properties  

received by him. On 29.7.1953, the respondents deposited Rs. 35,155-2-6 in  

the trial Court. On 17.8.1953, the decree-holder filed objections to the said  

deposit on the ground that it was much less than the decretal amount. On  

27.8.1953,  the  trial  Court  made  an order  permitting  the  decree-holder  to  

withdraw the said amount with the reservation that the question as to what  

was due under the decree would be decided later. On 25.8.1954, both the  

appeal of the decree-holder and the cross-objections of the defendants were  

dismissed.  On  7.12.1954,  the  defendants  filed  an  application  in  the  trial  

Court  for  the  determination of  the  amount  due under  the  decree  and for  

directing the decree-holder to render accounts of all the realizations from the  

mortgaged properties. On 14.3.1955, this Court granted special leave to the  

decree-holder for preferring an appeal against the judgment of the Judicial  

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Commissioner dismissing Civil Appeal No. 71 of 1953. On 15.2.1956, the  

trial Court dismissed the application filed by the defendants for directions on  

the ground that the mortgage deed had merged in the preliminary decree and  

that  the  said  decree  contained  no  directions  to  the  plaintiff  to  render  

accounts.  On  29.2.1956,  the  defendants  applied  to  the  Judicial  

Commissioner,  Ajmer  under  Section  152  of  the  CPC  for  amending  the  

preliminary decree by including therein a direction against the plaintiff for  

rendition  of  account  in  respect  of  the  profits  received  by  him from the  

mortgaged properties. On 12.4.1956, the Judicial Commissioner dismissed  

the said application. On 25.4.1956, the defendants filed a revision petition  

against  the  order  of  the  trial  Court  dated  15.2.1956,  in  the  Court  of  the  

Judicial Commissioner, Ajmer.  By judgment dated 16.12.1960, this Court  

modified the preliminary decree and directed the trial Court to pass a fresh  

final decree.  Thereafter, the High Court allowed the revision filed by the  

defendants and remanded the case to the trial Court with a direction to take  

into  account  the  receipts  from  the  mortgaged  properties  and  expenses  

properly  incurred  for  management  thereof  and  to  determine  what  sum  

remained to be paid to the mortgagees taking into account the judgment of  

this Court.  On appeal, this Court referred to Section 76(h) of the Transfer of  

Property Act and held that if the mortgagor does not raise a particular plea at  

the stage of preliminary decree, he would be debarred on the principle of res  

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judicata  from  raising  the  same  at  a  later  stage  and  then  proceeded  to  

observe:

“But the same cannot be said of the net receipts realized by the  mortgagee subsequent to the preliminary decree. None of the  principles relied upon by the learned counsel for the appellants  helps him in this regard. It is true that a preliminary decree is  final in respect of the matters to be decided before it is made:  See  Venkata  Reddy  v.  Pethi  Reddy  AIR  1963  SC  992  and  Section 97 of the Code of Civil  Procedure.  It  is  indisputable  that  in  a  mortgage  suit  there  will  be  two  decrees,  namely,  preliminary  decree  and  final  decree,  and  that  ordinarily  the  preliminary decree settles the rights of the parties and the final  decree works out those rights: see Talebali v. Abdul Azia, ILR  57  Cal  1013;  (AIR  1929  Cal  689  FB)  and  Kausalya  v.  Kauleshwar,  ILR 25 Pat 305:  (AIR 1947 Pat  113).  It  cannot  also  be  disputed  that  a  mortgage  merges  in  the  preliminary  decree and the rights of the parties are thereafter governed by  the  said  decree:  See  Kusum  Kumari  v.  Debi  Prosad  Dhandhania, 63 Ind App 114: (AIR 1936 PC 63). But we do not  see  any relevancy  of  the  said  principles  to  the  problem that  arises in this case in regard to the liability of the mortgagee to  account for the net receipts under Section 76(h) of the Transfer  of Property Act. A preliminary decree is only concerned with  disputes germane to the suit up to the date of the passing of the  said decree. The net receipts of the mortgaged property by the  mortgagee subsequent to the preliminary decree are outside the  scope of the preliminary decree: they are analogous to amounts  paid  to  a  mortgagee  by  a  mortgagor  subsequent  to  the  preliminary decree.”  

19. In  Mool  Chand  v.  Deputy  Director,  Consolidation (supra),  the  

Court considered the provisions of the U.P. Consolidation of Holdings Act,  

1953 and held that the preliminary decree passed in a suit for partition can  

be given effect to in proceedings before the consolidation authorities.

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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 (supra)  and  S.  Sai  Reddy  v.  S.  

Narayana Reddy (supra) 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 6A of the Karnataka Act No.23 of 1994.

21. In the result, the appeal is allowed.  The impugned judgment as also  

the order passed by the trial Court are set aside.  As a sequel to this, the  

application filed by the appellant under Sections 151, 152 and 153 CPC is  

allowed in terms of the prayer made.  If the final decree has not been passed  

so far, then the trial Court shall do so within six months from the date of  

production/receipt  of  the  copy  of  this  judgment.   If  the  final  decree  has  

already been passed, then the trial Court shall amend the same in terms of  

26

this judgment and give effect to the right acquired by the appellant under  

Section 6A of the Karnataka Act No.23 of 1994.  The parties are left to bear  

their own costs.   

…..………..….………………….…J. [G.S. Singhvi]

…………….…..…..…… …………..J.

[K.S. Panicker Radhakrishnan] New Delhi 10th May, 2011.

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