Smt. Sonavva W/O Late Dhanpal ... vs Smt. Akkatai W/O. Basavanni Patil ...
2022 Latest Caselaw 1168 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

          DATED THIS THE 27th DAY OF JANUARY 2022

                           BEFORE

       THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD

           Writ Petition No.104638/2021 (GM-CPC)

Between

1. Smt. Sonavva,
   W/o late Dhanpal Patil,
   Age: 58, Occ: Household,

2. Sri. Sanjay,
   S/o late Dhanpal Patil,
   Age: 32, Occ: Agriculture,

3. Sri. Sheetal Dhanpal Patil,
   Age: 32, Occ: Agriculture,

  All are r/at CTS No.2004 Kore Galli,
  Shahapur, Belagavi-590001.                  ...Petitioners

(By Sri. Mrutyunjaya Tata Bangi, Advocate)


And

1. Smt. Akkatai,
   W/o Basavanni Patil,
   Aged Major, Occ: Agriculture,
   r/a CTS No.2133, Koregalli,
   Shahapur, Belagavi-590001.
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2. Smt. Tanjua
    D/o Chandrakant Desai,
   Aged about 46 years,
   Occ: Advocate.

3. Sri. Jaypal,
   S/o Chandrakant Desai,
   Aged about 41 years,
   Occ: Agriculture,

Sri. Kushal S/o Tavanappa Patil,
Since deceased by his L.Rs.

4. Smt. Mangal, W/o Kushal Patil,
   Aged major, Occ: Agriculture,

5. Smt. Rashmi,
   W/o Dharnendara Kadahatti,
   Aged major, Occ: Agriculture,

6. Sri. Rajkiran, S/o Kushal Patil,
   Aged major, Occ: Agriculture,

7. Sri Anil, S/o Tavanappa Patil,
   Aged major, Occ: Agriculture,

8. Sri Ashwin,
   S/o Tavanappa Patil,
   Aged major, Occ: Agriculture,

9. Kumari Anita,
   D/o Tavanappa Patil,
   Aged major, Occ: Agriculture,

  All are r/at H.No.2004, Koregalli,
  Shahapur, Belagavi-590001.
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10. Smt. Padmavathi,
    W/o Bharamappa Patil,
    Aged major, Occ: Agriculture

11. Sri Sunil,
    S/o Bharamappa Patil,
    Aged major, Occ: Agriculture

    Both are r/at CTS No.2133, Koregalli,
    Shahapur, Belagavi-590001.
12. Smt. Kanchanmala,
    W/o Annappa Hukkeri,
    Aged about 49 years, Occ: H/w,
    r/at Peeranwadi,
    Tq & Dist: Belagavi-590001.

13. Smt. Kanakamala,
    W/o Suresh Budavi,
    Aged about 53 years, Occ: H/w,
    r/at Alarwad, Tq & Dist: Belagavi-590001.

14. Smt. Kundan,
    W/o Devendra Buddannavar,
    Aged about 49 years, Occ: H/w,
    r/at Angol, Tq & Dist: Belagavi-590001.

15. Sri. Paris, S/o Bhupal Patil,
    Aged about 46 years, Occ: Agriculture,

16. Sri. Ajit, S/o Bhupal Patil,
    Aged about 42 years, Occ: Agriculture,

17. Sri. Neminath, S/o Bhupal Patil,
    Aged about 37 years, Occ: Agriculture,

18. Smt. Shanta, W/o Bhupal Patil,
    Aged about 76 years, Occ: Agriculture,
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    All are r/at CTS No.2133, Koregalli,
    Shahapur, Belagavi-590001.

19. Smt. Saroja, W/o Dhanpal Patil,
    Aged Major, Occ: H/w

20. Smt. Surekha, W/o Devendra Patil,
    Aged Major, Occ: H/w

21. Smt. Sujata, W/o Dilip Jakannavar,
    Aged major, Occ: H/w,

    All are r/at H.No.2004, Koregalli,
    Shahapur, Belagavi-590001.

22. Sri. Vasudev @ Rayappa,
    S/o Mahaveer Patil,
    Aged Major, Occ: Agriculture,
    r/at C/o Kallappa Shirgapur,
    Tigadolli, Tq: Bailhongal,
    Dist: Belagavi-590001.                      ...Respondents

(By Sri. Y.G.Gumaj, Advocate for C/R1 to R3)


      This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India praying to issue a writ tin the nature
of certiorari or any other writ or direction and set aside the
order passed by the II Additional Senior Civil Judge and CJM,
Belagavi, passed in FDP NO.42 of 2011 dated 26.10.2021 on
I.A.No.XIII copy as per Annexure-H and reject the I.A. No.XIII
and allowing the writ petition.

      This Writ Petition coming on for Preliminary Hearing
this day, the Court made the following:
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                            ORDER

The petitioners are the plaintiffs in FDP NO.42/2011 on

the file of the II Additional Senior Civil Judge & CJM, Belagavi

(for short, 'the Final Decree Court'). The Final Decree Court, by

the impugned order dated 26.10.2021, has allowed the

application filed by the first to third respondents under

Section 152 read with Section 153 and 151 of the Code of

Civil Procedure, 1908 to amend the preliminary decree dated

05.02.2003 in O.S. NO.24/1998 granting them 1/7th share in

the suit schedule property as against the 1/42nd share as

decreed on 05.02.2003.

2. The undisputed facts are that the first respondent

and Smt. Padmavathi Chandrakanth Desai (now represented

by the second and the third respondents) have filed suit for

partition in O.S. No.24/1998 which is decreed in part on

05.02.2003 granting them 1/42nd share in the suit schedule

properties. The petitioners have impugned the aforesaid

judgment and decree dated 05.02.2003 in R.F.A.

No.447/2003 and the aforesaid plaintiffs have also filed their

appeal in R.F.A. No.542/2003. On 25.02.2011, a Division

Bench of this Court has disposed of these two appeals

affirming the preliminary decree dated 05.02.2003. The

plaintiff's review petition filed by the in R.P. NO.1549/2011 is

also rejected by a Division Bench of this Court on 14.08.2012.

The Special Leave Petition filed against the aforesaid

judgment and decree is also disposed of. The first to third

respondents have filed the present application for amendment

of the preliminary decree with the decision of Hon'ble

Supreme Court in Vineeta Sarma Vs. Rakesh Sarma and

Others reported in (2020)9 SCC 1. .

3. Sri. Mrutyunjaya Tata Bangi, the learned counsel

for the petitioners, submits that the Final Decree Court could

not have amended the preliminary decree granting 1/7th

share. The respondents have invoked the provisions of

Sections 151-153 of CPC, and these provisions could not have

been invoked to amend the decree. Significantly, the Hon'ble

Supreme Court in dismissing the Special Leave Petition

No.1299-1300/2013 has decided the in personam rights of

the parties.

4. However, the merits of the impugned order must

be necessarily examined in the light of the settled proposition

that a preliminary decree can be amended when there is a

change in law before the final decree as preliminary decrees

can be drawn up until the final decree is drawn. As regards

the proposition referred to above, a useful reference can be

made to the decision of the Hon'ble Supreme Court in

Ganduri Koteshwaramma and Another Vs. Chakiri Yanadi

and Another reported in (2011)9 SCC 788. The Hon'ble

Supreme Court has held as follows:

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

This Court in the case of S. Sai Reddy vs. S. Narayana Reddy and Others 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 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 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".

5. This Court in the light of this enunciation is of the

considered view that the impugned order does not suffer from

any legal infirmity. Therefore, the petition stands rejected

Sd/-

JUDGE Kms