REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO.    8538      OF 2011 (Arising out of SLP (Civil) No. 9586 of 2010)

Ganduri Koteshwaramma & Anr. …. Appellants

Versus

Chakiri Yanadi & Anr.          ….Respondents

JUDGMENT

     R.M. Lodha, J.  

Leave granted.  

2. The question that arises in this appeal, by special leave,  

is:  whether  the  benefits  of  Hindu  Succession  (Amendment)  Act,  

2005 are available to the appellants.

3. The appellants and the respondents are siblings being  

daughters and sons of Chakiri Venkata Swamy. The 1st respondent  

(plaintiff) filed a suit for partition in the court of Senior Civil Judge,  1

Ongole  impleading  his  father  Chakiri  Venkata  Swamy  (1st  

defendant),  his brother Chakiri Anji Babu (2nd defendant) and  his  

two  sisters  –  the  present  appellants  –  as  3rd and  4th defendant  

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

coparcenary property – the plaintiff claimed that he, 1st  defendant  

and 2nd  defendant  have 1/3rd share each.   As regards schedule  

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

that all the parties have 1/5th equal share.  

4. The 1st defendant died in 1993 during the pendency of  

the suit.

5. The trial court vide its judgment and preliminary decree  

dated March 19, 1999 declared that plaintiff  was entitled to  1/3 rd  

share in the schedule ‘A’, ‘C’ and ‘D’ properties and further  entitled  

to 1/4th share in the 1/3rd share left by the 1st  defendant. As regards  

schedule property ‘B’  the plaintiff was declared to be entitled to 1/5 th  

share.  The controversy in the present  appeal does not relate to  

schedule ‘B’ property  and is confined to schedule ‘A’, ‘C’ and ‘D’  

properties. The trial court ordered for separate enquiry as regards  

mesne profits.

6. The  above  preliminary  decree  was  amended  on  

September  27,  2003 declaring  that  plaintiff  was  entitled  to  equal  

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share along with 2nd, 3rd and 4th  defendant in 1/5th share left by the  

1st defendant in schedule  property ‘B’.

7. In furtherance of the  preliminary decree dated March 19,  

1999 and the  amended preliminary  decree  dated  September  27,  

2003, the plaintiff made two applications before the trial court  (i) for  

passing the final decree in terms thereof; and (ii) for determination of  

mesne  profits.  The  trial  court  appointed  the  Commissioner  for  

division of the schedule property and in that regard directed him to  

submit his report.   The Commissioner submitted his report.  

8. In the course of consideration of the report submitted by  

the Commissioner and before passing of the final decree,  the Hindu  

Succession (Amendment)  Act,  2005 (for  short,  ‘2005 Amendment  

Act’)  came into force on September 9, 2005. By  2005 Amendment  

Act, Section 6 of the Hindu Succession Act, 1956  (for short ‘1956  

Act’) was substituted. Having regard to 2005 Amendment Act which  

we  shall  refer  to  appropriately  at  a  later  stage,    the  present  

appellants (3rd and 4th defendant) made an application for passing  

the  preliminary  decree  in  their  favour   for  partition  of  schedule  

properties ‘A’, ‘C’ and ‘D’ into four equal shares; allot one share to  

each of them by metes and bounds and for delivery of possession.

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9. The  application  made  by  3rd and  4th defendant  was  

contested by the plaintiff. Insofar as 2nd defendant is concerned he  

admitted  that  the  3rd and  4th defendant  are  entitled  to  share  as  

claimed  by  them  pursuant  to  2005  Amendment  Act  but  he  also  

submitted that they were liable for the debts of the family.

10. The trial court, on hearing the parties, by its order dated  

June 15, 2009, allowed the application of the present appellants (3 rd  

and 4th defendant) and held that they were entitled for re-allotment of  

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

each and separate possession in schedule properties ‘A’, ‘C’ and ‘D’.

11. The plaintiff  (present respondent no. 1) challenged the  

order of the trial  court in appeal before the Andhra Pradesh High  

Court.  The  Single  Judge  by  his  order  dated  August  26,  2009  

allowed the appeal and set aside the order of the trial court.  

12. 1956 Act is an Act to codify the law relating to intestate  

succession among Hindus.   This Act has brought about important  

changes in the law of succession  but without affecting the special  

rights of the members of a Mitakshara Coparcenary. The Parliament  

felt  that  non-inclusion of  daughters in the Mitakshara Coparcenary  

property  was  causing  discrimination  to  them  and,  accordingly,  

decided to bring in necessary changes in the law. The  statement of  

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objects and reasons of the 2005 Amendment Act, inter alia, reads as  

under :

“…….The retention of the Mitakshara coparcenary property  without including the females in it means that the females  cannot  inherit  in  ancestral  property  as  their  male  counterparts do. The law by excluding the daughter from  participating  in  the  coparcenary  ownership  not  only  contributes to her discrimination on the ground of gender  but  also  has  led  to  oppression  and  negation  of  her  fundamental  right  of  equality  guaranteed  by  the  Constitution.  Having regard  to  the  need to  render  social  justice  to  women,  the  States  of  Andhra  Pradesh,  Tamil  Nadu, Karnataka and Maharashtra have made necessary  changes in the law giving equal right to daughters in Hindu  Mitakshara coparcenary property.”     

13. With the above object in mind, the Parliament substituted  

the existing Section 6 of the 1956 Act by a new provision vide 2005  

Amendment  Act.   After  substitution,  the new Section  6  reads as  

follows :

“6.  Devolution  of  interest  in  coparcenary  property.—  (1)  On  and  from  the  commencement  of  the  Hindu  Succession (Amendment) Act, 2005, in a Joint Hindu family  governed  by  the  Mitakshara  law,  the  daughter  of  a  coparcener shall,—

 (a) by birth become a coparcener in her own right in the  

same manner as the son;   (b) have the same rights in the coparcenary property as  

she would have had if she had been a son;   (c) be subject  to the same liabilities in respect  of  the  

said coparcenary property as that of a son,    

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and any reference to a Hindu Mitakshara coparcener shall  be  deemed  to  include  a  reference  to  a  daughter  of  a  coparcener:   Provided  that  nothing  contained in  this  sub-section  shall  affect  or invalidate any disposition or alienation including  any partition or testamentary disposition of property which  had taken place before the 20th day of December, 2004.   (2) Any property to which a female Hindu becomes entitled  by virtue of sub-section (1) shall be held by her with the  incidents of coparcenary ownership and shall be regarded,  notwithstanding anything contained in this Act or any other  law for the time being in force in, as property capable of  being disposed of by her by testamentary disposition.   (3)  Where a Hindu dies after  the commencement  of  the  Hindu Succession (Amendment) Act, 2005, his interest in  the  property  of  a  Joint  Hindu  family  governed  by  the  Mitakshara law, shall devolve by testamentary or intestate  succession, as the case may be, under this Act and not by  survivorship,  and  the  coparcenary  property  shall  be  deemed to have been divided as if a partition had taken  place and,—   

(a)   the daughter is allotted the same share as is allotted  to a son;

 (b)   the  share  of  the  pre-deceased  son  or  a  pre-

deceased  daughter,  as  they  would  have  got  had  they  been  alive  at  the  time  of  partition,  shall  be  allotted to the surviving child of such pre-deceased  son or of such pre-deceased daughter; and

 (c)   the  share  of  the  pre-deceased  child  of  a  pre-

deceased son or  of  a  pre-deceased daughter,  as  such child would have got had he or she been alive  at the time of the partition, shall be allotted to the  child  of  such  pre-deceased  child  of  the  pre- deceased son or a pre-deceased daughter, as the  case may be.  

 Explanation.— For  the  purposes  of  this  sub-section,  the  interest of a Hindu Mitakshara coparcener shall be deemed  to  be  the  share  in  the  property  that  would  have  been  

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allotted to him if a partition of the property had taken place  immediately  before  his  death,  irrespective of  whether  he  was entitled to claim partition or not.   (4)  After  the  commencement  of  the  Hindu  Succession  (Amendment) Act, 2005, no court shall recognise any right  to proceed against a son, grandson or great-grandson for  the recovery of any debt due from his father, grandfather or  great-grandfather  solely  on  the  ground  of  the  pious  obligation under the Hindu law, of such son, grandson or  great-grandson to discharge any such debt:   Provided that in the case of any debt contracted before the  commencement  of  the  Hindu  Succession  (Amendment)  Act, 2005, nothing contained in this sub-section shall affect —   

(a)   the right of any creditor to proceed against the son,  grandson or great-grandson, as the case may be; or

 (b)   any alienation made in respect of or in satisfaction  

of, any such debt, and any such right or alienation  shall  be  enforceable  under  the  rule  of  pious  obligation  in  the  same  manner  and  to  the  same  extent as it would have been enforceable as if the  Hindu Succession (Amendment) Act, 2005 had not  been enacted.  

 Explanation.—For  the  purposes  of  clause  (a),  the  expression “son”, “grandson” or “great-grandson” shall be  deemed to refer to the son, grandson or great-grandson, as  the case may be, who was born or adopted prior to the  commencement  of  the  Hindu  Succession  (Amendment)  Act, 2005.   (5)  Nothing  contained  in  this  section  shall  apply  to  a  partition, which has been effected before the 20th day of  December, 2004.   Explanation. —For the purposes of this section “partition”  means  any  partition  made  by  execution  of  a  deed  of  partition duly registered under the Registration Act, 1908  (16 of 1908) or partition effected by a decree of a court.”

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14. The new Section 6 provides for parity of rights in the  

coparcenary  property  among  male  and  female  members  of  a  joint  

Hindu  family on and from September  9, 2005.  The Legislature has  

now conferred substantive right in favour of the daughters.  According  

to  the  new  Section  6,  the  daughter  of  a  copercener  becomes  a  

coparcener  by  birth  in  her  own  rights  and  liabilities  in  the  same  

manner as the son.  The declaration in Section 6 that the daughter of  

the  coparcener  shall  have  same  rights  and  liabilities  in  the  

coparcenary property as she would have been a son is unambiguous  

and unequivocal. Thus, on and from September 9, 2005, the daughter  

is entitled to a share in the ancestral property and is a coparcener as if  

she   had been a son.   

15. The right accrued to a daughter in the property  of a joint  

Hindu family governed by the Mitakshara Law, by virtue of the 2005  

Amendment Act, is absolute, except in the circumstances provided in  

the proviso appended to sub-section (1) of Section 6.  The excepted  

categories to which new Section 6 of the 1956 Act is not applicable  

are two, namely, (i) where the disposition or alienation including any  

partition has taken place before December 20, 2004; and (ii)  where  

testamentary  disposition  of  property  has  been  made  before  

December 20, 2004.  Sub- section (5) of Section 6 leaves no room for  

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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  

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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  

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Court in the case of  Phoolchand  and Anr. Vs. Gopal Lal 1  wherein  

this Court stated as follows:  

“We are of opinion that there is nothing in the Code  of Civil  Procedure which prohibits  the passing of  more than one  preliminary  decree if  circumstances justify the same and  that it  may be necessary to do so particularly in partition  suits when after the preliminary decree some parties die  and shares of other parties are thereby augmented. . . . ..  So far therefore as partition suits are concerned we have  no doubt that if  an event transpires after the preliminary  decree which necessitates a change in shares, the court  can and should do so; ........... there is no prohibition in the  Code  of  Civil  Procedure  against  passing  a  second  preliminary decree in such circumstances and we do not  see why we should rule out a second preliminary decree in  such circumstances only on the ground that the Code of  Civil Procedure does not contemplate such a possibility. . .  for it must not be forgotten that the suit is not over till the  final  decree  is  passed  and  the  court  has  jurisdiction  to  decide  all  disputes  that  may  arise  after  the  preliminary  decree, particularly in a partition suit due to deaths of some  of the parties.  .  .  .  .a second preliminary decree can be  passed in partition suits by which the shares allotted in the  preliminary decree already passed can be amended and if  there is dispute between surviving parties in that behalf and  that dispute is decided the decision amounts to a decree….  ………… .”  

18. This Court in the  case of  S. Sai Reddy vs. S. Narayana  

Reddy  and  Others2 had  an  occasion   to  consider  the  question  

identical  to  the  question  with  which  we  are  faced  in  the  present  

appeal.  That  was  a   case   where  during  the  pendency  of  the  

proceedings in the  suit for partition before the trial court and prior to  

1  AIR 1967 SC 1470  2  (1991) 3 SCC 647

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the passing of final decree, the 1956 Act was amended by the State  

Legislature  of  Andhra  Pradesh  as  a  result  of  which  unmarried  

daughters  became entitled to a share in the joint  family property.  

The  unmarried  daughters  respondents  2  to  5  therein  made  

application before the trial court claiming their share in the property  

after  the State amendment in the 1956 Act.   The trial  court by its  

judgment and order  dated  August 24, 1989 rejected their application  

on the ground that the preliminary decree had already been passed  

and specific shares of the parties had been  declared and, thus, it  

was  not  open  to  the  unmarried  daughters  to  claim  share  in  the  

property  by virtue of  the State amendment  in  the 1956 Act.   The  

unmarried daughters preferred revision against  the order of the trial  

court  before the High Court.  The High Court set aside the order of  

the trial court and declared that in view of the newly added Section  

29-A,  the  unmarried  daughters  were  entitled  to  share  in  the  joint  

family property.   The  High Court further directed the trial  court to  

determine the shares of the unmarried daughters accordingly.  The  

appellant therein challenged the order of the High Court  before this  

Court.  This Court considered  the matter thus;  

“………A partition of the joint Hindu family can be effected by  various modes, viz., by a family settlement, by a registered  instrument of partition, by oral arrangement by the parties, or  by a decree of the court. When a suit for partition is filed in a  

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court, a preliminary decree is passed determining shares of  the  members  of  the  family.  The  final  decree  follows,  thereafter,  allotting  specific  properties  and  directing  the  partition of the immovable properties by metes and bounds.  Unless and until the final decree is passed and the allottees  of  the  shares  are  put  in  possession  of  the  respective  property,  the  partition  is  not  complete.  The  preliminary  decree  which  determines  shares  does not  bring about  the  final  partition.  For,  pending  the  final  decree  the  shares  themselves  are  liable  to  be  varied  on  account  of  the  intervening events.  In the instant case, there is no dispute  that only a preliminary decree had been passed and before  the final decree could be passed the amending Act came into  force as a result of which clause (ii) of Section 29-A of the  Act  became applicable.  This  intervening  event  which gave  shares to respondents 2 to 5 had the effect of varying shares  of the parties like any supervening development. Since the  legislation is beneficial and placed on the statute book with  the avowed object of benefitting women which is a vulnerable  section of the society in all its stratas, it is necessary to give a  liberal effect to it. For this reason also, we cannot equate the  concept  of  partition  that  the legislature  has in mind in the  present case with a mere severance of the status of the joint  family  which  can be  effected  by an  expression  of  a  mere  desire by a family member to do so. The partition that the  legislature has in mind in the present case is undoubtedly a  partition  completed  in  all  respects  and  which  has  brought  about  an irreversible  situation.  A preliminary  decree  which  merely  declares  shares  which  are  themselves  liable  to  change  does  not  bring  about  any  irreversible  situation.  Hence,  we  are  of  the  view  that  unless  a  partition  of  the  property  is  effected  by  metes  and  bounds,  the  daughters  cannot be deprived of the benefits conferred by the Act. Any  other view is likely to deprive a vast section of the fair sex of  the  benefits  conferred  by the  amendment.  Spurious  family  settlements,  instruments  of  partitions  not  to  speak  of  oral  partitions will spring up and nullify the beneficial effect of the  legislation depriving a vast section of women of its benefits”.

19. The above legal position is wholly and squarely applicable  

to  the present  case.   It  surprises us that  the High Court  was  not  13

apprised of  the decisions of  this Court  in  Phoolchand1 and  S. Sai  

Reddy2. High Court considered the matter as follows:    

“In the recent past, the Parliament  amended Section  6  of  the  Hindu  Succession  Act  (for  short  ‘the  Act’),  according status of  coparceners to the female members of  the family also.  Basing their claim on amended Section 6  of the Act, the respondents 1 and 2 i.e., defendants 3 and 4  filed  I.A.  No.  564  of  2007  under  Order  XX  Rule  18  of  C.P.C.,  a  provision,  which  applies  only  to preparation of  final  decree.   It  hardly  needs  an  emphasis  that  a  final  decree  is  always  required  to  be   in  conformity  with  the  preliminary decree.  If any party wants alteration or change  of preliminary decree, the only course open to him or her is  to file an appeal  or to seek other  remedies vis-à-vis the  preliminary  decree.   As  long  as  the  preliminary  decree  stands,  the  allotment  of  shares  cannot  be  in  a  manner  different from what is ordained in it.”

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

appreciating the scope of Order XX Rule 18 of C.P.C.  In a suit for  

partition of immovable property, if such property is not assessed to  

the payment of revenue to the government, ordinarily passing of a  

preliminary decree declaring the share of the parties may be required.  

The court would thereafter proceed for preparation of final decree.   In  

Phoolchand1,  this  Court  has  stated  the  legal  position  that  C.P.C.  

creates no impediment for even more than one preliminary decree if   

after  passing  of  the  preliminary  decree   events  have  taken  place  

necessitating  the  readjustment  of  shares  as  declared  in  the  

preliminary  decree.  The  court  has  always  power  to  revise  the  

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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  

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changed or supervening circumstances even if no appeal has been  

preferred from such preliminary decree.

23. The  view  of  the  High  Court  is  against  law  and  the  

decisions of this Court in Phoolchand1  and S.Sai Reddy2.  

24. We accordingly allow this appeal; set aside the impugned  

judgment of the High Court and restore the order of the trial court  

dated  June  15,  2009.  The  trial  court  shall  now  proceed  for  the  

preparation of the final decree in terms of its order dated June 15,  

2009.  No costs.  

………………………J (R.M. LODHA)   

             ….  …………………………….J.       (JAGDISH SINGH KHEHAR )

NEW DELHI OCTOBER 12, 2011

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