Rameshbhai Dalpatbhai Modi vs Babubhai Ratanji Marfatiya
2021 Latest Caselaw 5422 Guj

       C/SCA/20697/2016                             CAV JUDGMENT




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 20697 of 2016
                             With
     CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2020
                               In
       R/SPECIAL CIVIL APPLICATION NO. 20697 of 2016
                             With
 CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 3 of 2020
                               In
       R/SPECIAL CIVIL APPLICATION NO. 20697 of 2016

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

==============================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

============================================================== RAMESHBHAI DALPATBHAI MODI & 1 other Versus BABUBHAI RATANJI MARFATIYA & 2 other ============================================================== Appearance:

MR CHAITANYA S JOSHI(5927) for the Petitioner Nos. 1, 2 MR SUDHAKAR B JOSHI(3465) for the Petitioner Nos. 1, 2 DECEASED LITIGANT(100) for the Respondent No. 2 MR. JAL UNWALA, SR. ADVOCATE WITH MS TEJAL A VASHI(2704) for the Respondent Nos. 1,2.1,2.2,2.3,2.4,2.5 UNSERVED EXPIRED (R)(69) for the Respondent No. 3 ==============================================================

CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

Date :07/05/2021

CAV JUDGMENT

1.Heard learned advocate Mr. Chaitanya Joshi for the petitioners and learned Senior Advocate Mr. Jal Unwala assisted by learned advocate Ms. Tejal Vashi for the respondents through video conference.

2. By this petition under Article 227 of the Constitution of India, the petitioners have challenged the order dated 3.10.2016 passed by the learned 3rd Additional Senior Civil Judge, Valsad passed below Exh.97 in Regular Civil Suit No. 161 of 2006 whereby the application of the petitioners for impleadment as defendants in the Regular Civil Suit No. 161 of 2006 is rejected.

3.Factual matrix of the case are as under :

4.One Ratanji Bhana Marfatiya was owner of land bearing Survey Nos.240 Part, 239, 241/1, 240/2 Part and 241/2 situated at Nankawada, Taluka and District Valsad having Khata No. 226 (here-in-after referred to as "the suit property"). After the demise of Ratanji Bhana Marfatiya on 5.1.1957, the suit property was of the ownership of his wife Maniben. Revenue entry no. 1198 was mutated in favour of Maniben on 22.2.1957 in respect of the suit property. Maniben expired on 30.5.1967 survived by her legal heirs comprising of

three sons Bhikhubhai, Babubhai and Dineshbhai and five daughters Bhikhiben, Kamuben, Gajraben, Ramanben and Urmilaben.

5.Respondent no.1-Babubhai Ratanji Marfatiya filed Special Civil Suit No.35/1989 for partition of the suit property amongst three brothers only in the Court of Senior Civil Judge, Valsad.

6. The Senior Civil Judge, Valsad passed the judgment and decree dated 28.2.1995 declaring that respondent no.1 has 1/3rd share in the suit property and is entitled to get the possession of his 1/3rd share and is also entitled to get mesne profit from the defendants from the date of suit till the delivery of possession and the Court Commissioner was appointed to make partition as per Order XXII Rule 12(c) of the Code of Civil Procedure, 1908 (For short "the Code") to make partition of immovable properties other than agricultural land.

7. Thereafter, preliminary decree was drawn and subsequently, the suit was converted to Regular Civil Suit No.161/2006 as the final decree was not passed. The petitioners therefore, filed an application Exh.80 in Regular Civil Suit No.161/2006 stating that the sisters of respondent no.1 and daughters

of late Ratanji Bhana Marfatiya had 1/8th share in the property of their deceased father and accordingly prayed that five daughters of late Ratanji Bhana and their heirs be joined as parties defendants in the suit under Order I Rule 10 of the Code. The Senior Civil Judge, Valsad, however, by order dated 26.4.2011 rejected the application Exh.80 for joining party in the Regular Civil Suit No. 161/2006.

8. It appears that prior to initiation of the aforesaid proceedings for joining parties, petitioner no.1 being legal heir and son of Kamuben-daughter of late Ratanji Bhana as Kamuben also expired on 8.6.2004, preferred Special Civil Suit No.26/2009 before the Court of Principal Senior Civil Judge, Valsad with a prayer to declare that five daughters of deceased Ratanji Bhana has 1/8th share in the suit property and judgment and decree dated 28.2.1995 passed in Special Civil Suit No. 35/1989 by the Senior Civil Judge, Valsad is not binding upon the five daughters of late Ratanji Bhana and their heirs. Special Civil Suit No.26/2009 is pending for adjudication before the Court of Senior Civil Judge, Valsad.

9. The petitioners being aggrieved by order dated 26.4.2011 passed below application

Exh.80 in Regular Civil Suit No. 161/2006 preferred an appeal before the Additional District Judge, Valsad being Civil Misc. Appeal No.15/2011 which came to be allowed vide order dated 20.10.2014. Respondent no.1 therefore, preferred Special Civil Application No.1235/2015 challenging the said order whereby the petitioners were permitted to be joined as defendants in Regular Civil Suit No. 161/2006. This Court (Coram : Hon'ble Ms. Justice Harsha Devani, as her Ladyship was then) by order dated 17.4.2015 in view of consensus arrived at between the learned advocates for the respective parties, quashed and set aside order dated 20.10.2014 passed by the Additional District Judge, Valsad in Civil Misc. Appeal No.15/2011 with a clarification that if the daughters or the heirs of the deceased daughters of late Ratanji Bhana Marfatia moves an application for being joined as parties in the civil suit, the trial Court to consider the same in accordance with law without prejudice to any of the rights and contentions of the parties. Accordingly, the petitioners preferred application Exh.97 in Regular Civil Suit No. 161/2006 to join the daughters or their heirs of deceased Ratanji Bhana Marfatiya as party defendants on the ground that they were necessary and proper parties. However, learned 3rd Additional Senior Civil Judge,

Valsad by order dated 3.10.2016 rejected application Exh.97 on the ground that as judgment and decree in the pending suit i.e. Regular Civil Suit No. 161/2006 is already passed vide Exh.70 on 28.2.1995 and therefore, if the daughters and their legal heirs of late Ratanji Bhana are joined as party respondents, then it would be necessary to reopen the question of allotment of share which cannot be done in view of the decision taken in the earlier application at Exh.80 for not joining the petitioners as party respondents.

10. This coordinate bench of this Court by order dated 11.12.2017 after considering the facts of the case, admitted the petition and proceedings before the trial Court qua the suit in question was stayed.

Submissions on behalf of the petitioners :

11. Learned advocate Mr. Chaitanya Joshi for the petitioners submitted that as per the provisions of Order 1 Rule 10 of the Code, the petitioners along with daughters and their legal heirs of late Ratanji Bhana are necessary and proper party in the pending proceedings of Regular Civil Suit No. 161/2006 at the stage of passing the final decree also because there is no legal embargo

against addition of any new party after preliminary decree in the suit for partition has been passed.

12. It was further submitted that the suit for partition stands disposed of only with passing of the final decree and if the decree is in nature of preliminary decree or partition, then the suit would continue and would remain under the control of the Court till the party moves for passing the final decree.

13. Learned advocate Mr. Joshi in support of his submissions relied upon the decision of Supreme Court in case of Prema v. Nanje Gowda and others reported in (2011) 6 Supreme Court Cases 462, wherein the Apex Court examined the status of rights of a person during interregnum between preliminary decree and final decree. It was held that during interregnum, if rights and shares of parties are altered for example by virtue of any statutory amendment or otherwise, the Court must give effect to the same and modify the preliminary decree accordingly.

14. Learned advocate Mr. Joshi also relied upon the decision of Apex Court in case of Ganduri Koteshwaramma and another v. Chakiriyanadi and another reported in (2011) 9 Supreme

Court Cases 788, wherein it is held that it is permissible to modify the preliminary decree having regard to the changed or supervening circumstances before passing of final decree even if no appeal is preferred against the preliminary decree. In facts of the said case, section 6 of the Hindu Succession Act, 1956 which provides for parity of rights in the ancestral property amongst male and female members of joint Hindu family on and from 9.9.2005 and accordingly, rights accrued to daughter in the property of joint Hindu family governed by the Mitakshara law by virtue of 2005 Amendment Act is absolute, except in circumstances provided in the said Act. Therefore, an application was made by the daughters to be joined as party after preliminary decree of partition was passed and final decree was yet to be passed. In such circumstances, the Apex Court held that a preliminary decree determines the rights and interests of the parties and suit for partition is not disposed of by passing of the preliminary decree and it is only when final decree is passed, the immovable property of joint Hindu Family is partitioned by metes and bounds. It was therefore, submitted that the Court below has erred in not properly appreciating the scope of Order XX Rule 18 of the Code as the Code creates no

impediment for even more than one preliminary decree if after passing the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree.

15. It was submitted that in view of the latest decision of Supreme Court in case of Vineeta Sharma v. Rakesh Sharma dated 11.8.2020 passed in Civil Appeal Diary No.32601 of 2018, the petitioners who are the legal heirs of late Ratanji Bhana Marfatiya along with other daughters and their heirs are entitled to share in the suit property and as such, the Court below ought to have allowed the application Exh.97 permitting the petitioners and other daughters and their legal heirs of late Ratanji Bhana Marfatiya to be joined as defendants in Regular Civil Suit No. 161/2006.

Submissions on behalf of the respondents :

16. Learned Senior Advocate Mr. Jal Unwala assisted by learned advocate Ms. Tejal Vashi for the respondent nos. 1 and 2.1 to 2.5 submitted that the Court below has rightly rejected the application Exh.97 refusing to join the petitioners as party defendants in the pending Regular Civil Suit No. 161/2006 because once the preliminary decree is passed

in a partition suit unless there is an agreement between the parties as to manner of division, final decree is required to be passed on the basis of report of the Court Commissioner for consequential partition by metes and bounds. It was therefore, submitted that when the preliminary decree of partition was passed by the Court in the year 1995 and has achieved finality and as the same is not challenged before any higher forum, the daughters or the petitioners who are legal heirs of the daughter of late Ratanji Bhana are not necessary and proper party. Learned Senior Advocate Mr. Unwala relied upon the decision of the Apex Court in case of Shub Karan Bubna alias Shub Karan Prasad Bubna v. Sita Saran Bubna and others reported in (2009) 9 Supreme Court Cases 689 to contend that once there is a decree of partition, the share of the plaintiffs is determined and the preliminary decree is drawn under Order XX Rule 18(2) of the Code, the consequential division by metes and bounds is considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations, combinations and alternatives of division referred to Collector or Commissioner under Rule 18(1) of Order XX of the Code and is the subject matter of final decree and therefore, the

petitioners have rightly not been impleaded in the pending proceedings for drawing final decree.

17. Learned Senior Advocate Mr. Unwala also relied upon the decision of this Court in case of Kumari Bilkishben D/o. Decd. Ishakbhai A. Kadarbhai v. Huned Saifuddin and ors. reported in 2012 (1) GLH 306, wherein in similar facts, this Court held that if a decree is a preliminary decree of partition, the suit would continue and would remain under the control of the Court and impleadment of additional parties subsequent to passing of the preliminary decree is permissible only if none of the questions already settled by the preliminary decree are not to be reopened and without re-agitating any of the issues as decided by the Court in suit, a party can be impleaded before the final decree is drawn. It was therefore, submitted that if the petitioners are impleaded as parties in the pending suit, the trial Court would be required to reopen the issued with regard to share of the plaintiffs which is determined by judgment and decree dated 28.2.1995 and hence it is not permissible as the share in the suit property is already settled by the preliminary decree. It was therefore, submitted that impleadment of the petitioners

as defendants in the pending suit would be of no avail in view of the aforesaid decision as the trial Court cannot reopen the question already settled with regard to the partition of the suit property and the petitioners cannot re-agitate the same to claim their share in the suit property.

18. Learned Senior Advocate Mr. Unwala further submitted that the petitioners have already preferred another suit being Special Civil Suit No.26/2009 with the prayer of having share in the suit property which is also pending for adjudication. It was therefore, submitted that the petitioners cannot be permitted to be impleaded as party defendants in Regular Civil Suit No. 161/2006 and the trial Court has rightly rejected application Exh.97 filed by the petitioners. It was also pointed out that though the consensus was arrived at between the petitioners and respondent no.1 before this Court during the proceedings of Special Civil Application No.1235/2015 wherein it was made clear on behalf of the petitioners that a fresh application would be made by all the daughters or the heirs of daughters of deceased Ratanji Bhana Marfatiya to be impleaded as party in the pending proceedings, however, application Exh.97 was only preferred by the petitioners with a

prayer to join them as defendants in the pending suit. It was therefore, submitted that the trial Court has rightly rejected the application Exh.97 as the same was not preferred as agreed by the petitioners before this Court during the proceedings of Special Civil Application No.1235/2015.

19. Having heard the learned advocates for the respective parties and having gone through the materials on record, it is not in dispute that the petitioners are the legal heirs of late Kamuben-daughter of late Ratanji Bhana. Respondent no.1 preferred Special Civil Suit No. 35/1989 for partition of the suit property which is admittedly an ancestral property amongst three brothers without joining five sisters who are the legal heirs of late Ratanji Bhana and late Maniben, widow of Ratanji Bhana.

20. It is true that the petitioners have preferred Special Civil Suit No.26/2009 with a prayer to claim 1/8th share in the suit property and to declare that the judgment and decree dated 28.2.1995 passed in Special Civil Suit No. 35/1989 which is now converted to Regular Civil Suit No. 161/2006 is not binding upon the petitioners. The petitioners have thereafter preferred application Exh.80 in Regular Civil Suit

No.161/2006 which was rejected and the appeal preferred against the said order was allowed. However, before this Court during the proceedings of Special Civil Application No.1235/2015, it was agreed on behalf of the petitioners to prefer a fresh application on behalf of the daughters and the legal heirs of daughters of late Ratanji Bhana. However, it appears that the petitioners again preferred an application Exh.97 which is the subject matter of this petition on behalf of the daughters and their legal heirs for joining them as the defendants in the pending suit for passing final decree.

21. Therefore, an interesting question arises as to whether at the stage of drawing of final decree, the petitioners can be permitted to be impleaded as defendants in Regular Civil Suit No. 161/2006 under Order I Rule 3 and 10 of the Code? Provisions of Order I Rule 10 prescribes that the Court can join any person who is necessary and proper party in the proceedings. At the same time, the provisions of Order XX Rule 18 is also required to be considered for the purpose of application of Order I Rule 10. It would therefore, be germane to refer to relevant provisions of the Code which reads as under :

"Order I - Parties to suits

10. Suit in name of wrong plaintiff. - (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.--The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4)Where defendant added, plaint to be amended.--Where a defendant is added, the plaint shall, unless the

Court otherwise directs, be amended in such manner as may be necessary, and amended copes of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the [Indian Limitation Act, 1877 (15 of 1877)], section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

Order XX Judgment and Decree

18. Decree in suit for partition of property or separate possession of a share therein.- Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,

--

(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;

(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently

made without further inquiry, pass a preliminary decree declaring the right of the several parties interested in the property and giving such further directions as may be required."

22. On conjoint reading of the aforesaid provisions, as held by this Court in case of Kumari Bilkishben D/o. Decd. Ishakbhai A. Kadarbhai v. Huned Saifuddin and ors.(supra), there is no legal embargo against addition of any new party after a preliminary decree in the suit for partition has been passed because it is well settled that the suit for partition is disposed of only when the final decree is passed. In case of passing of preliminary decree of partition, the suit would continue under the control of the Court unless and until the final decree is passed. This Court in the aforesaid decision has also relied upon the decision of Division Bench of Kerala High Court in case of Neelkantha Pillai Ramchandran Nair v. Ayappan Pillai Kumara Pillai reported in AIR 1978 Kerala 152, in case of Smt. Aswathamma v. H.M. Vijayaraghava reported in AIR 1999 Karnataka 21 and in case of Bhupinder Kumar v. Angrej Singh reported in (2009) 8 SCC 766 and thereafter held as under :

"20. Thus the position of law in my view is very clear. Without reagitating any of the issues as decided by the Court

below in the suit a party can be impleaded before the final decree is drawn. In the present case, there is no challenge so far as the preliminary decree is concerned determining the share of late Ishakbhai. Even the newly added parties i.e. two daughters from the first marriage of Ishakbhai has no dispute so far as 7/32 share of Ishakbhai as determined is concerned.

What is in dispute is perhaps the so- called gift made by Ishakbhai in favour of the applicant herein so far as his share is concerned. The case of the two daughters is that they have also a right in the estate of their late father and from 7/32 share of their father they have right alongwith the applicant herein. In short, the two newly impleaded parties wants the Court to divide 7/32 share of late Ishakbhai in three equal proportions. Again the question at this stage which arises is as to what will be the effect of the gift said to have been made by late Ishakbhai in favour of applicant. Admittedly in the suit this issue has not been decided except the fact that the confirmation of the oral gift in the form of an affidavit affirmed by late Ishakbhai has been on record which has been accepted. In this set of facts and circumstances it will be for the trial Court now to decide as to whether the two newly impleaded parties i.e. the two daughters of late Ishakbhai from his first marriage can legitimately claim to divide Ishakbhai's 7/32 share in three equal proportion or not. I have noticed that learned Judge while allowing the application has taken care to see that no final rights of the impleaded parties are determined while deciding their application for being impleaded as

parties in the suit.

21. I am of the view that before the final decree is drawn it will be open for the Court below to take into consideration the plea of the newly impleaded parties insofar as their share is concerned. I have already made it clear that without going into the merits or demerits of the preliminary decree this is permissible. At the same time, it will also be open for the applicant herein to place reliance on her plea of oral gift confirmed by an affidavit of late Ishakbhai in this regard to establish that the newly impleaded parties and the claim in share from 7/32 share of late Ishakbhai. The Executing Court would be empowered to that extent in deciding this issue after due inquiry and after giving an opportunity to all the parties concerned. In taking this view I am fortified by a ruling of the Supreme Court in the case of Maddineni Koteswara Rao Vs. Maddineni Bhaskara Rao & Anr., reported in (2009) 13 scc 179. The relevant paragraphs of the judgment are No.15, 16, 17 and 18 which are quoted as under:

"15. It is competent for the court to examine the validity of the transfers, testate or intestate successions in the final decree proceedings, of which examination had not been done before the passing of the preliminary decree, to take into consideration the changes occurring on account of death of a party or transfer made by him. Therefore, the High Court and the trial court were justified in taking into account the Will of the deceased father while passing the

final decree in the partition suit. The High Court placed reliance on a decision of this Court in Phoolchand v Gopal Lal.

16. The High Court further held that alteration of the preliminary decree would occur only if the extent of shares allotted to each parties or the items identified for partition, were altered. No such alteration had taken place in the present case. A mere adjustment of the shares of the parties does not bring about any alteration in the preliminary decree. Accordingly, the High Court had refused to interfere with the order of the trial court in revision. 8. Feeling aggrieved, the appellant filed a special leave petition, which on grant of leave, was heard in the presence of the learned counsel for the parties.

17. The only question that needs to be decided in this appeal is whether the High Court as well as the trial court were justified in allotting two shares in favour of the respondent on the basis of the Will executed by the deceased father of the parties and whether the genuineness of the Will could be decided by the Court in a suit for partition or not or by a separate suit.

18. It is well settled that a suit for partition stands disposed of only with the passing of the final decree. It is equally settled that

"in a partition suit, the court has the jurisdiction to amend

the shares suitably, even if the preliminary decree has been passed, if some member of the family to whom an allotment was made in the preliminary decree dies thereafter."

The share of the deceased would devolve upon other parties to a suit or even a third party, depending upon the nature of the succession or transfer, as the case may be. The validity of such succession, whether testate or intestate, or transfer, can certainly be considered at the stage of final decree proceedings.

22. I may also refer to the judgment of the Supreme Court in the case of Shub Karan Bubna @ Shub Karan Prasad Bubna Vs. Sita Saran Bubna & Ors. reported in (2009) 9 SCC 689. In this case Supreme Court was dealing with an issue as to whether the provisions of the Limitation Act are inapplicable to an application for drawing up a final decree. In the case before the Supreme Court an application was preferred for drawing up a final decree. The said application was opposed on the ground that it was barred by limitation. It was argued that the final decree proceedings being barred by limitation should be dropped. The said application was dismissed by the trial Court holding that once the right / share of the plaintiff had been finally determined by a preliminary decree, there is no limitation for an application for effecting the actual partition / division in accordance with the preliminary decree as it should be considered to be an application made in a pending suit. Supreme Court took into consideration R.18 of O.20 of Code of

Civil Procedure as well as Section 54 of the Code of Civil Procedure dealing with the partition as estate or separation of share and held as under:

"The function of making a partition or separation according to the rights declared by the preliminary decree, (in regard to non-

agricultural immovable properties and movables) is entrusted to a Commissioner, as it involves inspection of the property and examination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the court; and after hearing objections to the report, if any, the court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the court may direct sale thereof and distribution of the proceeds as per the shares declared."

23. The Supreme Court in case of Prema v. Nanje Gowda and others (supra) held as under :

"15. 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[AIR 1967 SC 1470] and S. Sai Reddy v. S. Narayana Reddy,[(1991)3 SCC 647] it was open to the appellant to claim enhancement of her share in the joint family properties because she had not married till the enforcement of the Karnataka Act No.23 of 1994. Section 6-A of the Karnataka Act No.23 of 1994 is identical to Section 29-A of the Andhra Pradesh Act. Therefore, there is no reason why ratio of the judgment in S. Sai Reddy v. S. Narayana Reddy 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 not filed an application for enforcing the right accruing to her under Section 6-A during the pendency of the first and the second appeals or that she had not challenged the preliminary decree by joining defendant Nos.1, 4 and 5 in filing the second appeal.

16. 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.

17. In this case, the Act was amended by the State legislature and Sections 6-A to 6-C were inserted for achieving the goal of equality set out in the Preamble of the Constitution. In terms of Section 2 of the Karnataka Act No.23 of 1994,Section 6-A came into force on 30.7.1994, i.e. the date on which the amendment was published. As on that day, the final decree proceedings were pending. Therefore, the appellant had every right to seek enlargement of her share by pointing out that the discrimination 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.

18. 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 inS. Sai Reddy v. S. Narayana Reddy on the ground that the same was based on the judgment of three-Judge Bench in Phoolchand v. Gopal Lal and a contrary view had been expressed by the larger Bench in Venkata Reddy v. Pethi Reddy[AIR 1963 SC 992].

xxx

23. 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 insofar as the matters dealt with by it are concerned. This is evident from the following observations made in the judgment:(Venkata Reddy case,AIR p.995,para 6)

"6. ..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)

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, 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 and S. Sai Reddy v. S. Narayana Reddy has direct bearing on this case and the trial Court and the High Court committed serious error by dismissing the application filed by the appellant for grant of equal share in the suit property in terms of Section 6-A of the Karnataka Act No.23 of 1994."

24. The Apex Court in case of Ganduri Koteshwaramma and another v. Chakiriyanadi and another (supra) in similar facts held as under :

"11. 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 coprcener 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.

12. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by

virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub- section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) where testamentary disposition of property has been made before December 20, 2004. Sub- section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been effected before December 20, 2004. For the purposes of new Section 6 it is explained that `partition' means any partition made by execution of a deed of partition duly registered under the Registration Act 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for determining the non- applicability of the Section, what is relevant is to find out whether the

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. 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. xxx 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 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.

xxx

19. 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 Phoolchand, 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 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.

xxx

21. It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree. The view of the High Court is against law and the decisions of this Court in Phoolchand and S.Sai

Reddy.[(1991) 3 SCC 647]."

25. In case of Vineeta Sharma v. Rakesh Sharma (supra), the Apex Court held as under :

"116. The intendment of amended Section 6 is to ensure that daughters are not deprived of their rights of obtaining share on becoming coparcener and claiming a partition of the coparcenary property by setting up the frivolous defence of oral partition and/or recorded in the unregistered memorandum of partition. The Court has to keep in mind the possibility that a plea of oral partition may be set up, fraudulently or in collusion, or based on unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognized under Section 6(5).

117. How family settlement is effected was considered in Kale vs. Deputy Dir- ector of Consolidation, (1976) 3 SCC 119, thus:

"10. In other words to put the bind- ing effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following proposi- tions:

"(1) The family settlement must be a bona fide one so as to re- solve family disputes and rival claims by a fair and equitable division or allotment of proper- ties between the various members of the family:

(2) The said settlement must be voluntary and should not be in-

duced by fraud, coercion or un- due influence;

(3) The family arrangement may be even oral in which case no registration is necessary: (4) It is well settled that re- gistration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinc- tion should be made between a document containing the terms and recitals of a family ar- rangement made under the docu- ment and a mere memorandum pre- pared after the family arrange- ment had already been made either for the purpose of the record or for information of the Court for making necessary muta- tion. In such a case the memor- andum itself does not create or extinguish any rights in immov- able properties and therefore does not fall within the mis- chief of Section 17(2) of the Registration Act and is, there- fore, not compulsorily regis- trable:

(5) The members who may be parties to the family arrange- ment must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but un- der the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then

the antecedent title must be as- sumed and the family arrangement will be upheld and the courts will find no difficulty in giv- ing assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."

15. In Tek Bahadur Bhujil vs. Debi Singh Bhujil, AIR 1966 SC 292, 295, it was pointed out by this Court that a family arrangement could be arrived at even orally and registra- tion would be required only if it was reduced into writing. It was also held that a document which was no more than a memorandum of what had been agreed to did not require registration. This Court had ob- served thus:

"Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be pre- pared for the purpose of being used as a document on which fu- ture title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties re- duce the family arrangement in writing with the purpose of us-

ing that writing as proof of what they had arranged and,

where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess."" (emphasis supplied) It is settled law that family arrange- ments can be entered into to keep har- mony in the family.

118. Reliance has been placed on Shripad Gajanan Suthankar vs. Dattaram Kashinath Suthankar, (1974) 2 SCC 156, in which effect of adoption by a widow and its effect on partition and other alienation made before adoption was considered. , the following observations were made:

"11. Two crucial questions then arise. One-third share out of what? Should the gift by Mahadev of what was under the then circumstances his exclusive properly be ignored in working out the one-third share? Two principles compete in this jurisdic- tion and judges have struck a fair balance between the two, animated by a sense of realism, impelled by de- sire to do equity and to avoid un- settling vested rights and concluded transactions, lest a legal fiction should by invading actual facts of life become an instrumentality of instability. Law and order are jur- isprudential twins and this per- spective has inarticulately informed judicial pronouncements in this branch of Hindu law.

18. We reach the end of the journey of precedents, ignoring as inessen- tial other citations. The balance sheet is clear. The propositions

that emerge are that: (i) A widow's adoption cannot be stultified by an anterior partition of the joint fam- ily and the adopted son can claim a share as if he were begotten and alive when the adoptive father breathed his last; (ii) Neverthe- less, the factum of partition is not wiped out by the later adoption;

(iii) Any disposition testamentary or inter vivos lawfully made ante- cedent to the adoption is immune to challenge by the adopted son; (iv) Lawful alienation in this context means not necessarily for a family necessity but alienation made com- petently in accordance with law; (v) A widow's power of alienation is limited and if-and only if-the con- ditions set by the Hindu Law are fulfilled will the alienation bind a subsequently adopted son. So also alienation by the Karta of an undi- vided Hindu family or transfer by a coparcener governed by the Benares school; (vi) Once partitioned val- idly, the share of a member of a Mitakshara Hindu family in which his own issue have no right by birth can be transferred by him at his will and such transfers, be they by will, gift or sale, bind the adopted son who comes later on the scene. Of course, the position of a void or voidable transfer by such a sharer may stand on a separate footing but we need not investigate it here." (emphasis supplied)

119. In ChinthamaniAmmal vs. Nandgopal Gounder, (2007) 4 SCC 163, it was ob- served that a plea of partition was re- quired to be substantiated as under law, there is a presumption as to jointness.

Even separate possession by co-sharers may not, by itself, lead to a presump- tion of partition.

120. In Rukhmabai vs. Laxminarayan, AIR 1960 SC 335 and Mudigowda Gowdappa Sankh & Ors. vs. Ramchandra Revgowda Sankh (dead) by his LRs. & Anr., AIR 1969 SC 1076, it was observed that prima facie a document expressing the intention to di- vide brings about a division in status, however, it is open to prove that the document was a sham or a nominal one and was not intended to be acted upon and executed for some ulterior purpose. The relations with the estate is the determ- ining factor in the statement made in the document. The statutory requirement of substituted Section 6(5) is stricter to rule out unjust deprivation to the daughter of the coparcener's right.

121. In Kalwa Devdattam vs. Union of In- dia, AIR 1964 SC 880, it was laid down that when a purported petition is proved to be a sham, the effect would be that the family is considered joint.

122. Earlier, an oral partition was per- missible, and at the same time, the bur- den of proof remained on the person who asserted that there was a partition. It is also settled law that Cesser of Com- monality is not conclusive proof of par- tition, merely by the reason that the members are separated in food and resid- ence for the convenience, and separate residence at different places due to service or otherwise does not show sep- aration. Several acts, though not con- clusive proof of partition, may lead to that conclusion in conjunction with various other facts. Such as separate occupation of portions, division of the income of the joint property, definement of shares in the joint property in the

revenue of land registration records, mutual transactions, as observed in Bhagwani vs. Mohan Singh, AIR 1925 PC 132, and Digambar Patil vs. Devram, AIR 1995 SC 1728.

123. There is a general presumption that every Hindu family is presumed to be joint unless the contrary is proved. It is open even if one coparcener has sep- arated, to the non-separating members to remain joint and to enjoy as members of a joint family. No express agreement is required to remain joint. It may be in- ferred from how their family business was carried on after one coparcener was separated from them. Whether there was a separation of one coparcener from all other members of a joint family by a de- cree of partition, the decree alone should be looked at to determine the question was laid down in Palani Ammal (supra) and Girijanandini Devi & Ors. vs. Bijendra Narain Choudhary, AIR 1967 SC 1124. In Palani Ammal (supra), it was held:

"......It is also now beyond doubt that a member of such a joint family can separate himself from the other members of the joint family and is on separation entitled to have his share in the property of the joint family ascertained and partitioned off for him, and that the remaining coparceners, without any special agreement amongst themselves, may continue to be coparceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the re- maining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their

previous coparcener had separated from them. It is also quite clear that if a joint Hindu family separ- ates, the family or any members of it may agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare occur- rence, and when it happens it must be strictly proved as any other dis- puted fact is proved...."

124. In Hari Baksh vs. Babu Lal, AIR 1924 PC 126, it was laid down that in case there are two coparcener brothers, it is not necessary that there would be a separation inter se family of the two brothers. The family of both the broth- ers may continue to be joint.

125. The severance of status may take place from the date of filing of a suit; however, a decree is necessary for work- ing out the results of the same, and there may be a change of rights during the pendency of the suit for allotting definite shares till final decree is passed. There are cases in which parti- tion can be reopened on the ground of fraud or mistake, etc. or on certain other permissible grounds. In appropri- ate cases, it can be reopened at the in- stance of minor also.

126. The protection of rights of daugh- ters as coparcener is envisaged in the substituted Section 6 of the Act of 1956 recognises the partition brought about by a decree of a court or effected by a registered instrument. The partition so effected before 20.12.2004 is saved.

127. A special definition of partition has been carved out in the explanation.

The intendment of the provisions is not to jeopardise the interest of the daugh- ter and to take care of sham or frivol- ous transaction set up in defence un- justly to deprive the daughter of her right as coparcener and prevent nullify- ing the benefit flowing from the provi- sions as substituted. The statutory pro- visions made in section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recog- nised. In view of change of provisions of section 6, the intendment of legis- lature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are re- quired to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appro- priation of the income, and consequent entry in the revenue records and invari- ably to be supported by other contempor- aneous public documents admissible in evidence, may be accepted most reluct- antly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected out rightly. The ob- ject of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended pro- visions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very ex- tremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in

shape of public documents in support are available, such a plea may be enter- tained, not otherwise. We reiterate that the plea of an oral partition or memor- andum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public docu- ment needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the find- ing is not to be based on the preponder- ance of probabilities in view of provi- sions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amend- ment Act. The exception is carved out by us as earlier execution of a registered document for partition was not neces- sary, and the Court was rarely ap- proached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than en- visaged under Section 6(5) had taken place.

128. The expression used in Explanation to Section 6(5) 'partition effected by a decree of a court' would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court ef- fects partition. A preliminary decree declares share but does not effect the actual partition, that is effected by passing of a final decree; thus, stat- utory provisions are to be given full effect, whether partition is actually

carried out as per the intendment of the Act is to be found out by Court. Even if partition is supported by a registered document it is necessary to prove it had been given effect to and acted upon and is not otherwise sham or invalid or car- ried out by a final decree of a court. In case partition, in fact, had been worked out finally into to as if it would have been carried out in the same manner as if affected by a decree of a court, it can be recognized, not other- wise. A partition made by execution of deed duly registered under the Registra- tion Act, 1908, also refers to completed event of partition not merely intendment to separate, is to be borne in mind while dealing with the special provi- sions of Section 6(5) conferring rights on a daughter. There is a clear legis- lative departure with respect to proof of partition which prevailed earlier; thus, the Court may recognise the other mode of partition in exceptional cases based upon continuous evidence for a long time in the shape of public docu- ment not mere stray entries then only it would not be in consonance with the spirit of the provisions of Section 6(5) and its Explanation.

129. Resultantly, we answer the refer- ence as under:

(i) The provisions contained in sub- stituted Section 6 of the Hindu Suc- cession Act, 1956 confer status of coparcener on the daughter born be- fore or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with ef- fect 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 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of parti- tion created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or dis- ruption of coparcenary. The fiction was only for the purpose of ascer- taining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provi- sions of the substituted Section 6 are required to be given full ef- fect. Notwithstanding that a prelim- inary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final de- cree or in an appeal.

(v) In view of the rigor of provi- sions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of parti- tion effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or ef- fected 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 by a de- cree of a court, it may be accepted.

A plea of partition based on oral evidence alone cannot be accepted and to be rejected out rightly."

26. In view of the above dictum of law,when the Apex Court has held that it is true that the final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree before the final decree is passed cannot be altered, 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.

27. In the facts of the case, though the preliminary decree has achieved finality as no appeal is preferred by the petitioner or any other person, in view of decision in case of Vineeta Sharma v. Rakesh Sharma (supra), daughters of late Ratanji Bhana may be entitled to coparcenary share in the suit property and accordingly, due to such event of changed circumstances, after the preliminary decree is drawn, the same can be modified, altered or amended. In that view of the matter, the petitioners and all daughters and their legal heirs of late Ratanji Bhana are entitled to be impleaded as party defendants in the pending Regular Civil Suit No. 161/2006.

28. The petition accordingly deserves to be allowed and is accordingly allowed. Impugned order dated 3.10.2016 passed below application Exh.97 in Regular Civil Suit No.161/2006 is hereby quashed and set aside. Application Exh.97 is ordered to be granted. The petitioners and other daughters and their legal heirs of deceased Ratanji Bhana Marfatiya are ordered to be impleaded as defendants in Regular Civil Suit No. 161/2006. The trial Court is directed to pass final decree after giving opportunity of hearing to the newly joined defendants and if need be preliminary decree be altered, modified or amended in accordance with law.

29. It is made clear that this Court has not gone into the merits of the matter as to whether petitioners or other daughters or their legal heirs are entitled to share in partition of the suit property or not. Trial Court is required to decide such issue in accordance with law.

30. Rule is made absolute to the aforesaid extent. No order as to costs.

31. In view of the order passed in the main matter, both the connected Civil Applications are disposed of.

(BHARGAV D. KARIA, J.)

FURTHER ORDER

After pronouncement of the judgment learned Senior Advocate Mr.Jal Unwala prays for stay of this order for four weeks. In view of the fact that the petition is allowed by permitting the petitioners to be joined as defendants in the pending civil proceedings, the prayer for stay is rejected.

(BHARGAV D. KARIA, J.) RAGHUNATH NAIR/AMAR RATHOD