Chanda Alias Chandrakala Kondiba ... vs Anant Kondiba Borgaonkar And Ors
2021 Latest Caselaw 6775 Bom

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BDP-SPS




                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION
                         WRIT PETITION NO. 8968 OF 2014

          Chanda alias Chandrakala
          Kondiba Borgaonkar                               ..... Petitioner.

                    V/s

          Anant Kondiba Borgaonkar and Ors.            ...... Respondents
          ----
          Mr. Purshottam G. Chavan for the Petitioner.
          Mr. Sujeet R. Bugade for Respondent Nos. 3 to 5.
          Mr. Vaibhav Gaikwad for Respondent Nos. 2, 6 to 8 and 13.
          -----

                                    CORAM: NITIN W. SAMBRE, J.

Order reserved on 11/02/2021 Order pronounced on 28/04/2021

P.C.:-

1] RCS No.570 of 1984, for partition, came to be decreed on

24/09/2002 which decree was modified on 28/2/2012 by the learned

District Judge, Solapur.

2] Execution proceedings being 58 of 2013 are pending on the file

of Civil Judge, Junior Division, Barshi.

3] Petitioner/Defendant No.1-A moved an application under

Section 47 read with Section 151 of the Civil Procedure Code relying

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on the amended provisions of Section 6 of the Hindu Succession Act

seeking appointment of the Court Commissioner for partition of the

house property and correction of preliminary decree passed by the

learned District Judge.

4] Vide order impugned, Executing Court on 12/8/2014 rejected

the prayer. As such, this Petition.

5]     I have heard respective Counsels at length.



6]     The learned Counsel for the Petitioner would urge that the

Application-Exhibit-4A came to be moved in view of amended

provisions of Hindu Succession Act, 1956, particularly Section 6 which

was brought into effect from 9/9/2005. According to him, daughter's

right in coparcenary property is recognized irrespective of the status

of the daughter as that of married or unmarried. According to him,

even though partition suit was initially decreed on 24/9/2002 still the

lower appellate court was required to take note of the aforesaid

amended provisions, while modifying the preliminary decree. So as to

substantiate his contentions, he would invite my attention to the

observations made by the learned District Judge while modifying the

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preliminary decree. By relying on the judgments of the Apex Court in

the matters of (i) Vineeta Sharma vs. Rakesh Sharma & Ors reported

in (2020) 9 SCC 1 (ii) S. Sai Reddy vs S. Narayana Reddy reported

in (1991) 3 SCC 647 and (iii) Ganduri Koteshwaramma & Anr vs

Chakiri Yanadi & Anr reported in (2011) 9 SCC 788 his submissions

are, preliminary decree can be modified at any stage unless it is finally

executed, based on intervening circumstances such as change in

position of law, death of party, etc. As such, according to him, the

order impugned rejecting the prayer for modification of the decree

needs to be quashed and set aside with direction to reconsider the said

prayer in the light of the judgments cited above.

7] The learned Counsel for the Respondents would urge that claim

of the Petitioner for modifying preliminary decree was rightly

rejected. According to him, even though preliminary decree has not

attained finality, same cannot be ordered to undergo change or

modification as rights of the parties are required to be decided based

on the cause of action accrued on a particular date. The learned

Counsel would also claim that preliminary decree for partition is final

decision and that being so decree cannot be ordered to be modified.

Further contention is, provisions of Section 47 of the Civil Procedure

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Code cannot be invoked in execution proceedings, seeking

modification of the decree, unless the preliminary decree is

challenged. The learned Counsel would draw support from the

following judgments so as to substantiate his contentions viz (i) V.

Ramaswami Ayyangar and Ors vs. T.N. Kailasa Thevar reported in

AIR 1951 SC 189, (ii) Venkata Reddi & Ors vs. Pothi Reddi

reported in AIR 1963 SC 992 and (iii) Smt Prema vs. Nanje

Gowda reported in AIR 2003 Karnataka 104.

8]      I have considered the rival submissions.



9]      As far as case in hand is concerned, it is apparent and cannot be

disputed by either of the parties to the Petition that preliminary

decree is under execution and final shares are yet to be handed over to

the parties physically and that being so decree has not attained the

status of final decree. As such, proceedings have not attained or

reached the stage of final decree.

10] Fact remains that suit for partition came to be initiated on

16/11/1984 and was decreed by the learned Trial Court on

24/09/2002. The amendment to Section 6 of the Hindu Succession

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Act came into effect from 9/9/2005 i.e. post the preliminary decree in

the aforesaid partition suit was passed.

11] Subsequent thereto, Defendant No.3 to the suit preferred

Regular Civil Appeal No.445 of 2002 in which, vide judgment dated

28/2/2012, preliminary decree underwent modification. It is this

decree passed by the learned District Judge which is under execution

in Execution Proceedings No.58 of 2013.

12] Fact remains that the District Judge while dealing with the

appeal preferred by Defendant No.3 was not sensitive to the amended

provisions of Section 6 of the Hindu Succession Act as it appears that

neither parties to the proceedings have raised challenge to the

preliminary decree passed.

13] Though the learned Counsel for the Respondents in the

aforesaid backdrop was justified in claiming that preliminary decree

for partition is final decision, as reflected in the judgment of the Apex

Court in the matter of Venkata Reddi & Others cited supra, however,

such finding cannot be read out of context. Para 6 of the said

judgment reads thus:

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"6. 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 in- tended to apply to all cases except those covered by the two provisos. We are concerned here only with the first proviso. This proviso ex- cepts 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 short question, therefore, is whether the prelim- inary decree for partition passed in this case which was affirmed fi- nally in second appeal by the High Court of Madras can be regarded as a final decision. The competence of the court is not in question here. What is, however, contended is that in a partition suit the only decision which can be said to be a final decision is the final decree passed in the case and that since final decree proceedings were still going on when the Amending Act came into force the first proviso was not available to the appellants. It is contended on behalf of the appellants that since the rights of the parties are adjudicated upon by the court before a preliminary decree is passed that decree must, in so far as rights adjudicated upon are concerned, be deemed to be a final decision. The word 'decision' even in its popular sense means a con- cluded opinion (see Shroud's Judicial Dictionary 3rd Ed. Vol. I, p.

743.) Where therefore, the decision is embodied in the judgment which is followed by a decree finality must naturally attach itself to it in the sense that it is no longer open to question by either party except in an appeal, review or revision petition as provided for by law. The High Court has, however, observed :

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"The mere declaration of the rights of the plaintiff by the preliminary decree, would in our opinion not amount to a final decision for it is well known that even if a preliminary decree is passed either in a mortgage suit or in a partition suit, there are certain contingencies in which such a preliminary decree can be modified or amended and therefore would not become final."

It is not clear from the judgment what the contingencies referred to by the High Court are in which a preliminary decree can be modified or amended unless what the learned judges meant was modified or amended in appeal or in review or in revision or in exceptional cir- cumstances by resorting to the powers conferred by Ss. 151 and 152 of the Code of Civil Procedure. If that is what the High Court meant then every decree passed by a court including decrees passed in cases which do not contemplate making of a preliminary decree are liable to be "'modified and amended". Therefore, if the reason given by the High Court is accepted it would mean that no finality attaches to de- cree at all. That is not the law. 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 mat- ters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a pre- liminary decree and a final decree - the decree which would be exe- cutable would be the final decree. But the finality of a decree or a de-

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cision does not necessarily depend upon it's 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 at- tached to it. It would be relevant to refer to S. 97 of the Code of Civil Procedure which provides that where a party aggrieved by a prelimi- nary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final de- cree. This provision thus clearly indicates that as to the matters cov- ered by it, a preliminary decree is regarded as embodying the final de- cision of the court passing that decree."

Hence, what can be inferred is in case of passing of a preliminary decree, in view of statutory provisions, the adjudication of rights of a party to the suit is final, subject to further challenge as prescribed in the Code of Civil Procedure.

14] It is required to be noted that final word of adjudication till this

date of the Apex Court on the issue of interpretation of Section 6 of

the Hindu Succession Act is reflected in the judgment of Vineeta

Sharma cited supra. Paras 98, 99, 107 of the said judgment reads

thus:

"98. It was held that if after passing of a preliminary decree in a par- tition suit but before passing of the final decree, there has been en-

largement or diminution of the shares of the parties or their rights have been altered by statutory amendment; the court is duty-bound to

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decide the matter and pass final decree keeping in view the changed scenario. In Prema [Prema v. Nanje Gowda, (2011) 6 SCC 462 : (2011) 3 SCC (Civ) 379 : AIR 2011 SC 2077] , the Court further opined: (SCC p. 478, para 29)

"29. In our view, neither of the aforesaid three judgments can be read as laying down a proposition of law that in a partition suit, prelimi- nary decree cannot be varied in the final decree proceedings despite amendment of the law governing the parties by which the discrimina- tion 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 [Phoolchand v. Gopal Lal, AIR 1967 SC 1470] and S. Sai Reddy v. S. Narayana Reddy [S. Sai Reddy v. S. Narayana Red- dy, (1991) 3 SCC 647] has direct bearing on this case and the trial court and the High Court committed [Prema v. Nanje Gowda, 2002 SCC OnLine Kar 428 : AIR 2003 Kar 104] serious error by dismiss- ing the application filed by the appellant for grant of equal share in the suit property in terms of Section 6-A of Karnataka Act 23 of 1994."

It was laid down that by the change of law, the share of daughter can be enlarged even after passing a preliminary decree, the effect can be given to in final decree proceedings."

"99. In Ganduri Koteshwaramma v. Chakiri Yanadi [Ganduri Koteshwaramma v. Chakiri Yanadi, (2011) 9 SCC 788 : (2011) 4 SCC (Civ) 880] , this Court considered the amendment made in Sec- tion 6 of the Hindu Succession Act in 2005 and held that the right of a daughter in coparcenary property is not lost by passing of a prelimi- nary decree for partition before the stipulated date i.e. 20-12-2004. A

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partition suit does not stand disposed of by passing of a preliminary decree. Relying inter alia, on S. Sai Reddy [S. Sai Reddy v. S. Narayana Reddy, (1991) 3 SCC 647] , it was held that the prelimi- nary decree can be amended in order to fully recognise the rights of a daughter: (SCC pp. 794-97, paras 13-15 & 18-21)

"13. The legal position is settled that partition of a joint Hindu fami- ly 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 de- cree of the court. In the present case, admittedly, the partition has not been effected before 20-12-2004 either by a registered instru- ment of partition or by a decree of the court. The only stage that has reached in the suit for partition filed by Respondent 1 is the determi- nation of shares vide preliminary decree dated 19-3-1999, which came to be amended on 27-9-2003 and the receipt of the report of the Commissioner.

14. 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 prop- erty of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the fi- nal 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 prelimi- nary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situ- ation.

15. We are fortified in our view by a three-Judge Bench decision of this Court in Phoolchand v. Gopal Lal [Phoolchand v. Gopal Lal,

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AIR 1967 SC 1470] , wherein this Court stated as follows: (AIR p. 1473, para 7)

'7. We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one pre- liminary 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 oth- er parties are thereby augmented. ... So far therefore as parti- tion suits are concerned we have no doubt that if an event tran- spires after the preliminary decree which necessitates a change in shares, the court can and should do so; ... There is no prohi- bition 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 Proce- dure 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 parti- tion suit due to deaths of some of the parties. ... a second pre- liminary 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. The above legal position is wholly and squarely applicable to the present case. It surprises us that the High Court was not

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apprised of the decisions of this Court in Phoolchand [Phoolc- hand v. Gopal Lal, AIR 1967 SC 1470] and S. Sai Reddy [S. Sai Reddy v. S. Narayana Reddy, (1991) 3 SCC 647] . The High Court considered the matter as follows:

'* * *'

19. The High Court was clearly in error in not properly appre- ciating the scope of Order 20 Rule 18 CPC. In a suit for parti- tion 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 prepara- tion of final decree. In Phoolchand [Phoolchand v. Gopal Lal, AIR 1967 SC 1470] , this Court has stated the legal position that CPC creates no impediment for even more than one pre- liminary 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 al- ways power to revise the preliminary decree or pass another preliminary decree if the situation in the changed circum- stances so demands. 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 proceed- ings.

20. Section 97 CPC that provides that where any party ag- grieved by a preliminary decree passed after the commence-

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ment 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 hin- drance or obstruction in the power of the court to modify, amend or alter the preliminary decree or pass another prelimi- nary decree if the changed circumstances so require.

21. It is true that final decree is always required to be in con- formity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree."

(emphasis supplied)

The effect of the legislative provision concerning partition was con- sidered, and it was held that a preliminary decree merely declares the shares and on which law confers equal rights upon the daughter that is required to be recognised."

"107. Once the constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actual partition. The shares will have to be determined in changed scenario. The severance of status cannot come in the way to give effect to statutory provision and change by subsequent event. The statutory fiction of partition is far short of actual partition, it does not bring about the disruption of the joint family or that of coparcenary is a settled proposition of law. For the reasons mentioned above, we are also of the opinion that mere severance of status by way of filing a suit does not bring about the partition and till the date of the final decree, change in law, and

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changes due to the subsequent event can be taken into consideration."

15] Apart from above, the summarized principles as can be deduced

from the aforesaid judgments are reflected in para 137 of the said

judgment in Vineeta Sharma & Others cited supra and the same is

worth referring to.

"137. Resultantly, we answer the reference as under:

137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities.

137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004.

137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005.

137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining

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share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."

16] The above referred observations of the Apex Court in the matter

of Vineeta Sharma cited supra clarifies the position on the

interpretation of Section 6 of the Hindu Succession Act. The said

substituted Section 6 of the Hindu Succession Act confers status of

coparcener on the daughter even if born before or after the

amendment, at par with the right conferred on the son, including that

of liabilities. The coparcener right is accrued by birth. It is observed

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that the necessity of the condition that the father coparcener should

be living on 09.09.2005 is held to be no more requirement under law.

Even if a preliminary decree has been passed, the daughter must be

given share in the coparcenary, at par with that of the share given to

son in pending proceedings for final decree or in an appeal.

17] The observations in the judgment of Ganduri Koteshwaramma

as referred supra in the judgment of Vineeta Sharma, that the right of

the daughter in coparcenary property is not lost by passing of a

preliminary decree for partition even if such decree was passed before

20.12.2004 are confirmed. A preliminary decree can be amended in

order to fully recognise the rights of a daughter. The amendment to

the preliminary decree or to pass another preliminary decree

redetermining the share of the party having regard to changed

situation like the one in the present case is permissible in law, as the

final decree proceedings will culminate into deciding the suit finally.

As such, it is amply clear that after a preliminary decree, if there

necessitates a change in shares it is open for the court to do so and

should do so accordingly. The aforesaid observations can be

supported by a view of the Apex Court in the aforesaid judgment

wherein it is observed that the Court is always armed with powers to

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revise preliminary decree or to pass another preliminary. As merely

passing of preliminary decree does not create any right of finality in

favour of the parties as it is only a final decree in a partition suit which

gives finality to the adjudication process.

18] Apart from above, though the counsel for the respondent has

relied on the judgment of the Karnataka High Court in the matter of

Smt. Prema cited supra, the Apex court in para 29 of the judgment in

the matter of Vineeta Sharma has already held that the High court

was in serious error by dismissing the application filed by the

appellant therein for grant of equal share in the suit property in terms

of Section 6-A of Karnataka Act, 1994.

19] Apart from above in the judgment in the matter of Ganduri

Koteshwaramma cited supra, the Apex Court had an occasion to

consider whether there can be more than one preliminary decrees in a

partition suit. It has also considered a contigency viz., necessitating

readjustments of shares as are declared in preliminary decree.

Observations in the said judgment thereby permitting modification in

the preliminary decree, are based on the provisions of Section 6 of the

Hindu Succession Act post amendment.

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20] As a consequence of the aforesaid position of law as is cited

before me, it can be inferred that the position of law as existed

prompts that there can be more than one preliminary decrees in the

suit for partition and preliminary decree can be modified based on

necessitating circumstances like in the present case i.e. change in

position of law.

21] The Apex Court noted that partition of Hindu Family Property

can be effected either by registered partition instrument or through a

decree by court. In the case in hand, admittedly there is preliminary

decree for partition and the said decree is not taken to its logical end

by effecting partition by metes and bounds thereby putting the parties

to the suit in possession of their individual share.

22] Fact remains that a preliminary decree in the matter determines

rights and interest of the parties and as such rights and interest to the

extent of declaring individual share cannot be said to have attained

finality, as are declared by preliminary decree, unless final decree is

passed in the matter based on partition ordered, by metes and

bounds.

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23] The important principle of law in execution proceedings in

respect of preliminary partition decree is required to be noted viz suit

continues until final decree is passed. In the matter after passing of

the preliminary decree and before final decree is passed events and

supervening circumstances can necessitate change in the share, and

there is no impediment on the authority of the Court to order

modification of the preliminary decree, having regard to the changed

situation of law.

24] The aforesaid legal position is completely lost sight of by the

Court below while passing the order impugned.

25] In that view of the matter, the order impugned passed below

Exhibit-4A on 12/8/2014 is hereby quashed and set aside.

Application Exhibit-4A stood restored to the file of the Executing

Court. Executing Court is required to decide the said application

afresh having regard to the position of law as is reflected hereinabove

in the judgments of the Supreme Court in the matters of (i) Ganduri

Koteshwaramma, (ii) Vineeta Sharma and (iii) S. Sai Reddy , all

cited supra.

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26] Since the Execution Proceedings are pending for last more than

eight years, it will be appropriate in my opinion to direct the Court

below to expedite the Execution Proceedings.

27] Petition stands disposed of in the aforesaid terms.

( NITIN W. SAMBRE, J. )