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women are entitled to equal shares and also equally liable for joint family debts=in pending cases, the recent amendment of 2005 of Hindu succession act is applicable even after the preliminary decree is passed=whether the preliminary decree can be modified ?= 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 14 It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of 15

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 REPORTABLE 

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 8538 OF 2011

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

Ganduri Koteshwaramma & Anr. .... Appellants

 Versus

Chakiri Yanadi & Anr. ....Respondents

 JUDGMENT

R.M. Lodha, J. 

 Leave granted. 

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

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

2005 are available to the appellants.

3. The appellants and the respondents are siblings being 

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

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

 1

Ongole impleading his father Chakiri Venkata Swamy (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 

 2

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.

 3

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

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

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

claimed by them pursuant to 2005 Amendment Act but he also 

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

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

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

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

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

each and separate possession in schedule properties `A', `C' and `D'.

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

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

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

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

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

succession among Hindus. This Act has brought about important 

changes in the law of succession but without affecting the special 

rights of the members of a Mitakshara Coparcenary. The Parliament 

felt that non-inclusion of daughters in the Mitakshara Coparcenary 

property was causing discrimination to them and, accordingly, 

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

 4

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, 

 5

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 

 6

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."

 7

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

coparcenary property among male and female members of a joint 

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

now conferred substantive right in favour of the daughters. According 

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

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

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

the coparcener shall have same rights and liabilities in the 

coparcenary property as she would have been a son is unambiguous 

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

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

she had been a son. 

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

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

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

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

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

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

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

 testamentary disposition of property has been made before 

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

 8

doubt as it provides that this Section shall not apply to the partition 

which has been effected before December 20, 2004. For the 

purposes of new Section 6 it is explained that `partition' means any 

partition made by execution of a deed of partition duly registered 

under the Registration Act 1908 or partition effected by a decree of a 

court. In light of a clear provision contained in the Explanation 

appended to sub-section (5) of Section 6, for determining the non-

applicability of the Section, what is relevant is to find out whether the 

partition has been effected before December 20, 2004 by deed of 

partition duly registered under the Registration Act, 1908 or by a 

decree of a court. In the backdrop of the above legal position with 

reference to Section 6 brought in the 1956 Act by the 2005 

Amendment Act, the question that we have to answer is as to 

whether the preliminary decree passed by the trial court on March 19, 

1999 and amended on September 27, 2003 deprives the appellants 

of the benefits of 2005 Amendment Act although final decree for 

partition has not yet been passed. 

16. The legal position is settled that partition of a Joint Hindu 

family can be effected by various modes, inter-alia, two of these 

modes are (one) by a registered instrument of a partition and (two) by 

a decree of the court. In the present case, admittedly, the partition 

 9

has not been effected before December 20, 2004 either by a 

registered instrument of partition or by a decree of the court. The 

only stage that has reached in the suit for partition filed by the 

respondent no.1 is the determination of shares vide preliminary 

decree dated March 19, 1999 which came to be amended on 

September 27, 2003 and the receipt of the report of the 

Commissioner. 

17. A preliminary decree determines the rights and interests 

of the parties. The suit for partition is not disposed of by passing of 

the preliminary decree. It is by a final decree that the immovable 

property of joint Hindu family is partitioned by metes and bounds. 

After the passing of the preliminary decree, the suit continues until 

the final decree is passed. If in the interregnum i.e. after passing of 

the preliminary decree and before the final decree is passed, the 

events and supervening circumstances occur necessitating change in 

shares, there is no impediment for the court to amend the preliminary 

decree or pass another preliminary decree redetermining the rights 

and interests of the parties having regard to the changed situation. 

We are fortified in our view by a 3- Judge Bench decision of this 

 10

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

this Court stated as follows: 

 "We are of opinion that there is nothing in the Code of Civil 

 Procedure which prohibits the passing of more than one 

 preliminary decree if circumstances justify the same and 

 that it may be necessary to do so particularly in partition 

 suits when after the preliminary decree some parties die 

 and shares of other parties are thereby augmented. . . . .. 

 So far therefore as partition suits are concerned we have 

 no doubt that if an event transpires after the preliminary 

 decree which necessitates a change in shares, the court 

 can and should do so; ........... there is no prohibition in the 

 Code of Civil Procedure against passing a second 

 preliminary decree in such circumstances and we do not 

 see why we should rule out a second preliminary decree in 

 such circumstances only on the ground that the Code of 

 Civil Procedure does not contemplate such a possibility. . . 

 for it must not be forgotten that the suit is not over till the 

 final decree is passed and the court has jurisdiction to 

 decide all disputes that may arise after the preliminary 

 decree, particularly in a partition suit due to deaths of some 

 of the parties. . . . .a second preliminary decree can be 

 passed in partition suits by which the shares allotted in the 

 preliminary decree already passed can be amended and if 

 there is dispute between surviving parties in that behalf and 

 that dispute is decided the decision amounts to a decree.... 

 ............ ." 

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

Reddy and 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

 11

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

Legislature of Andhra Pradesh as a result of which unmarried 

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

The unmarried daughters respondents 2 to 5 therein made 

application before the trial court claiming their share in the property 

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

judgment and order dated August 24, 1989 rejected their application 

on the ground that the preliminary decree had already been passed 

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

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

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

unmarried daughters preferred revision against the order of the trial 

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

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

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

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

determine the shares of the unmarried daughters accordingly. The 

appellant therein challenged the order of the High Court before this 

Court. This Court considered the matter thus; 

 ".........A partition of the joint Hindu family can be effected by 

 various modes, viz., by a family settlement, by a registered 

 instrument of partition, by oral arrangement by the parties, or 

 by a decree of the court. When a suit for partition is filed in a 

 12

 court, a preliminary decree is passed determining shares of 

 the members of the family. The final decree follows, 

 thereafter, allotting specific properties and directing the 

 partition of the immovable properties by metes and bounds. 

 Unless and until the final decree is passed and the allottees 

 of the shares are put in possession of the respective 

 property, the partition is not complete. The preliminary 

 decree which determines shares does not bring about the 

 final partition. For, pending the final decree the shares 

 themselves are liable to be varied on account of the 

 intervening events. In the instant case, there is no dispute 

 that only a preliminary decree had been passed and before 

 the final decree could be passed the amending Act came into 

 force as a result of which clause (ii) of Section 29-A of the 

 Act became applicable. This intervening event which gave 

 shares to respondents 2 to 5 had the effect of varying shares 

 of the parties like any supervening development. Since the 

 legislation is beneficial and placed on the statute book with 

 the avowed object of benefitting women which is a vulnerable 

 section of the society in all its stratas, it is necessary to give a 

 liberal effect to it. For this reason also, we cannot equate the 

 concept of partition that the legislature has in mind in the 

 present case with a mere severance of the status of the joint 

 family which can be effected by an expression of a mere 

 desire by a family member to do so. The partition that the 

 legislature has in mind in the present case is undoubtedly a 

 partition completed in all respects and which has brought 

 about an irreversible situation. A preliminary decree which 

 merely declares shares which are themselves liable to 

 change does not bring about any irreversible situation. 

 Hence, we are of the view that unless a partition of the 

 property is effected by metes and bounds, the daughters 

 cannot be deprived of the benefits conferred by the Act. Any 

 other view is likely to deprive a vast section of the fair sex of 

 the benefits conferred by the amendment. Spurious family 

 settlements, instruments of partitions not to speak of oral 

 partitions will spring up and nullify the beneficial effect of the 

 legislation depriving a vast section of women of its benefits".

19. The above legal position is wholly and squarely applicable 

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

 13

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

Reddy2. High Court considered the matter as follows: 

 "In the recent past, the Parliament amended Section 

 6 of the Hindu Succession Act (for short `the Act'), 

 according status of coparceners to the female members of 

 the family also. Basing their claim on amended Section 6 

 of the Act, the respondents 1 and 2 i.e., defendants 3 and 4 

 filed I.A. No. 564 of 2007 under Order XX Rule 18 of 

 C.P.C., a provision, which applies only to preparation of 

 final decree. It hardly needs an emphasis that a final 

 decree is always required to be in conformity with the 

 preliminary decree. If any party wants alteration or change 

 of preliminary decree, the only course open to him or her is 

 to file an appeal or to seek other remedies vis-`-vis the 

 preliminary decree. As long as the preliminary decree 

 stands, the allotment of shares cannot be in a manner 

 different from what is ordained in it."

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

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

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

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

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

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

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

creates no impediment for even more than one preliminary decree if 

after passing of the preliminary decree events have taken place 

necessitating the readjustment of shares as declared in the 

preliminary decree. The court has always power to revise the 

 14

preliminary decree or pass another preliminary decree if the situation 

in the changed circumstances so demand. A suit for partition 

continues after the passing of the preliminary decree and the 

proceedings in the suit get extinguished only on passing of the final 

decree. It is not correct statement of law that once a preliminary 

decree has been passed, it is not capable of modification. It needs no 

emphasis that the rights of the parties in a partition suit should be 

settled once for all in that suit alone and no other proceedings. 

21. Section 97 of C. P.C. that provides that where any party 

aggrieved by a preliminary decree passed after the commencement 

of the Code does not appeal from such decree, he shall be precluded 

from disputing its correctness in any appeal which may be preferred 

from the final decree does not create any hindrance or obstruction in 

the power of the court to modify, amend or alter the preliminary 

decree or pass another preliminary decree if the changed 

circumstances so require. 

22. It is true that final decree is always required to be in 

conformity with the preliminary decree but that does not mean that a 

preliminary decree, before the final decree is passed, cannot be 

altered or amended or modified by the trial court in the event of 

 15

changed or supervening circumstances even if no appeal has been 

preferred from such preliminary decree.

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

decisions of this Court in 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 16

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