Smt. Kamalabai vs Smt. Narasabai
2022 Latest Caselaw 740 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 17TH DAY OF JANUARY, 2022

                      BEFORE

 THE HON'BLE MR. JUSTICE S. VISHWAJITH SHETTY

     WRIT PETITION NO.34917 OF 2015 (GM-CPC)

Between:

1.    Smt.Kamalabai
      W/o Sri Ramarao
      Aged about 58 years

2.    Smt.Renukabai
      D/o Sri Ramarao
      Aged about 42 years

3.    Smt.Gangabai
      D/o Sri Ramarao
      Aged about 38 years

4.    Smt.Savithabai
      D/o Sri Ramarao
      Aged about 37 years

5.    Smt.Venkubai
      D/o Sri Ramarao
      Aged about 31 years

      All are residing at
      Papareddypalya
      Bengaluru - 560 098
                                       ... Petitioners
(By Sri.P.M.Gopi, Advocate for
    Sri.Siddamallappa P.M, Advocate)
                          2    W.P.No.34917/2015



And:

1.     Smt.Narasabai
       W/o late R.Bheemarao
       Aged about 77 years

2.     Sri.B.E.Eshwara Rao
       S/o late R.Bheemarao
       Aged about 52 years

3.     Smt.Gangabai
       D/o late R.Bheemarao
       Aged about 47 years

4.     Sri.B.Pandu Rao
       S/o late R.Bheemarao
       Aged about 44 years

5.     Smt.B.Chandrabai
       D/o late R.Bheemarao
       Aged about 42 years

6.     Smt.Manjulabai
       D/o late R.Bheemarao
       Aged about 38 years

7.     Sri.B.Srinivasa Rao
       S/o late R.Bheemarao
       Aged about 36 years

       All are residing at
       Lingadevarapalya
       Govindaraja Nagara
       Bengaluru - 560 098

8.     Sri.Shivaji Rao
       S/o Ramarao
                          3          W.P.No.34917/2015



     Aged about 39 years
     Residing at
     Lingadevarapalya
     Yelagavadi Post
     Huthridurga Hobli
     Kunigal Taluk - 572 130

9.   Sri.Madhava Rao
     S/o late R.Bheema Rao
     Aged about 56 years
     Residing at
     Angrahalli
     Magadi Road
     (Near Sunkadakatte)
     Bengaluru - 560 094... Respondents

(By Sri.Vivek, Advocate for
    Sri.Abhinav R, Advocate for R.1 to 7;
    Notice to R.8 is d/w/v/o dated 26.03.2019)

      This Writ Petition is filed under Article 227 of the
Constitution of India praying to set aside the order
dated 20.07.2015 wrongly typed as 20.03.2015, passed
in F.D.P.No.5/2011 by the Principal Civil Judge
(Jr. Dvn) and JMFC, Kunigal as per Annexure-D and
direct the learned Principal Civil Judge (Jr. Dvn) &
JMFC, Kunigal to reconsider the matter and to pass an
order of re-apportionment of shares by taking into
consideration of change of law on incorporation of
Section 6A of Hindu Succession Act, 1956 and pass
suitable order.

      This Writ petition coming on for Preliminary
Hearing in B Group, this day, the Court made the
following through video conference:
     [
                          4            W.P.No.34917/2015



                         ORDER

The petitioners who are the plaintiffs in

O.S.No.261/1995 which was decreed by the Court of

Prl. Civil Judge (Jr.Dn.) & JMFC, Kunigal, have filed

this petition challenging the order dated 20.07.2015

passed by the said Court in FDP No.5/2011.

2. The brief facts of the case are as hereunder:

The suit in O.S.No.261/1995 filed by the

petitioners for partition was decreed and it was ordered

that the petitioners No.1 to 3 are entitled for 1/24th

share each and petitioners No.4 and 5 are entitled for

7/24th share each in the suit schedule property. It was

held that the defendant No.2 who was the purchaser of

the portion of the suit schedule property from defendant

No.1 was entitled for the share which was to be allotted

to the defendant No.1 in the said suit. After the

preliminary decree was passed in O.S.No.261/1995, the

second defendant had filed FDP No.5/2011 before the

trial court, for drawing up of final decree proceedings, in

accordance with the preliminary decree passed in

O.S.No.261/1995, which was admittedly not challenged

by any party to the suit. In the said final decree

proceedings, an application was filed for modification of

the preliminary decree on the ground that having regard

to the amendment to Section 6 of the Hindu Succession

Act, in the year 2005, the daughters are required to be

considered as coparceners along with sons and

accordingly, a prayer was made for modification of the

shares. The same was opposed by the defendants/

judgment debtors. The trial court vide its order dated

20.07.2015, rejected the said request made by the

plaintiffs and directed the Tahsildar, Kunigal who was

appointed as a Court Commissioner for demarcating the

share of defendant No.1, as observed in preliminary

decree and allot the same. Being aggrieved by the same,

the plaintiffs are before this court.

3. Learned counsel for the petitioners submits that

the trial court is not justified in holding that there was

no scope for modification of the shares as the

preliminary decree passed in O.S.No.261/1995

remained unchallenged. He submits that in view of the

change in law, the daughters are also entitled for equal

share and having regard to the fact that the partition

has not been given effect to pursuant to the preliminary

decree, the trial court ought to have taken into

consideration the change in law and ought to have

allotted equal share to the daughters.

4. Per contra, the learned counsel appearing for

the respondents/defendants submits that the

preliminary decree passed in O.S.No.261/1995 has

attained finality. Therefore, the trial court rightly

rejected the prayer to modify the share allotted to the

parties under the preliminary decree. He submits that

in the final decree proceedings, there is no scope to

modify the share if the preliminary decree has attained

finality. Accordingly, he prays to dismiss the petition.

5. I have carefully considered the arguments

addressed by the learned counsel appearing for the

parties and perused the records.

6. It is not in dispute that the preliminary decree

passed in O.S.No.261/1995 has attained finality and no

party to the suit has filed any appeal challenging the

said preliminary decree. The second defendant in the

suit had filed the final decree proceedings before the

trial court in FDP No.5/2011 to draw the final decree in

respect of the suit schedule property, as per the

preliminary decree passed in O.S.No.261/1995 and allot

the share of defendant No.1 to him. In the said

proceedings, the plaintiffs who are the wife and children

of Ramarao had filed an application to modify the share

having regard to the amendment to Section 6 of the

Hindu Succession Act, in the year 2005.

7. It is the settled position of law that a suit for

partition comes to an end only after the final decree is

drawn pursuant to the preliminary decree passed in the

suit. The Hon'ble Supreme Court in the case of

Maddineni Koteswara Rao vs. Maddineni Bhaskara Rao

and another, reported in 2009 AIR SCW 5319, at para

10 of the judgment, has observed as follows :

"Para 10 - 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. An inference to this effect can suitably be drawn from the decision of this Court in the case of Phoolchand v Gopal Lal (AIR 1967 SC 1470). In that decision, it was observed as follows:

"There is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if the 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... it would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specifications of shares in the preliminary decree varied before a final decree is prepared.

If this is done there is a clear determination of the rights of the parties to the suit on the question in dispute and we see no difficulty on holding that in such cases there is a decree deciding these disputed rights, if so, there is no

reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court."

8. In view of the above position of law, it is very

clear that the court wherein which the final decree

proceedings is pending can modify the share, having

regard to the subsequent change in the law. The

entitlement of a married daughter for a share in view of

the amendment to Section 6 of the Hindu Succession

Act, which came into force in the year 2005, has been

now settled by the Hon'ble Supreme Court in the case of

Vineeta Sharma vs. Rakesh Sharma reported in 2020(9)

SCC 1.

9. In my considered view, having regard to the

judgment of the Hon'ble Supreme Court in the case of

Maddineni Koteswara Rao vs. Maddineni Bhaskara Rao

and another, the trial court wherein the final decree

proceedings is pending consideration, was not justified

in refusing to entertain the prayer made by the plaintiffs

for modification of the shares. Under the circumstances,

I am of the considered view that the said order is not

sustainable, and therefore, if the same is set aside and

the matter is remitted to the trial court to consider the

application filed for modification, afresh in the

background of the law laid down by the Hon'ble

Supreme Court in the case of Maddineni Koteswara Rao

vs. Maddineni Bhaskara Rao and another and in the

case of Vineeta Sharma vs. Rakesh Sharma, it would

meet the ends of justice. Accordingly, the following :

ORDER

The writ petition is allowed.

The order dated 20.07.2015 passed in FDP No.5/2011 by the Civil Judge, Kunigal is set aside and the matter is remitted to Trial Court, to pass fresh order, taking into consideration the observations made by this court hereinabove and in the light of the judgments of the Hon'ble Apex Court, referred to hereinabove.

Having regard to the fact that the final decree proceedings is of the year 2011, the trial court is directed to consider the application filed for modification of share, afresh, as expeditiously as possible, but not later than a period of four months from the date of receipt of the certified copy of this order.

Sd/-

JUDGE

snc