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2003 DIGILAW 849 (AP)

Sajja Ravindra v. Sajja Gangadharudu

2003-07-09

B.S.A.SWAMY, ELIPE DHARMA RAO

body2003
B. S. A. SWAMY, J. ( 1 ) AFTER the Judgment was pronounced in the open Court in this case on 09-07-2003, Sri M. Y. K. Rayudu, learned counsel appearing for the respondents brought to our notice that his plea that first respondent s daughter is entitled for a share in the joint family properties was not adverted to. Therefore, we directed the Office to post the matter under the caption "for Being Mentioned" for today. ( 2 ) WE have heard both the counsel. It is not in dispute that the eldest son of first defendant i. e. , Lokeswararao died in the year 1978 and thereafter within nine months, the present suit for partition was filed by his legal heirs. During the pendency of the suit, the Hindu Succession Act was amended by State Act 13 of 1986 called as hindu Succession (A. P. Amendment)Act, 1986 and Section 29-A conferring coparcenary rights on the unmarried daughters was introduced if no partition has taken place as on the date of amendment. This amendment came into force on 5-9-1985 i. e. , during the pendency of the suit. Thereafter, an additional written statement was filed on behalf of the daughter 6th Defendant claiming a share in the property of first defendant. But the trial Court taken the view that the suit schedule properties are self acquired properties of first defendant and the question of constituting coparcenary does not arise and as such, she is not entitled for a share in the property. Accordingly, her claim was rejected. Now, in the appeal, we have taken the view that the suit schedule properties are joint family properties and are available for partition between the family members of the first defendant. ( 3 ) NOW the question, whether the amendment is applicable to pending cases seeking partition of the family properties. The Hon ble Supreme Court in S. SAIREDDY vs NARAYANA REDDY held that in a suit for partition if no final decree is passed, the unmarried daughters are also entitled for a share in the properties since no final decree was passed before coparcenary came into existence immediately after the amendment of Hindu Succession Act and as such the rights of the unmarried daughters cannot be taken away on the ground that the suit for partition was filed before the amendment Act came into force. It is useful to extract paras 7 and 8 of the judgment which are as follows:"7. THE question that falls for our consideration is whether the preliminary decree has the effect of depriving respondents 2 to 5 of the benefits of the amendment. The learned counsel placed reliance on clause (iv) of Section 29-A to support his contention that it does. Clause (ii) of the section provides that a daughter shall be allotted share like a son in the same manner treating her to be a son at the partition of the joint family property. However, the legislature was conscious that prior to the enforcement of the amending Act, partitions will already have taken place in some families and arrangements with regard to the disposition of the properties would have been made and marriage expenses would have been incurred etc. The legislature, therefore, did not want to unsettle the settled positions. Hence, it enacted clause (iv) providing that clause (ii) would not apply to a daughter married prior to the partition or to a partition which had already been effected before the commencement of the amending Act. Thus if prior to the partition of family property a daughter had been married, she was disentitled to any share in the property. Similarly, if the partition had been effected before September 5, 1985 the date on which the amending Act came into force, the daughter even though unmarried was not given a share in the family property. The crucial question, however, is as to when a partition can be said to have been effected for the purposes of the amended provision. 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. 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 benefiting 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. 8. 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. 8. Hence, in our opinion, the High Court has rightly held that since the final decree had not been passed and the property had not been divided by metes and bounds, clause (iv) to Section 29-A was not attracted in the present case and the respondent-daughters were entitled to their share in the family property. " ( 4 ) FOLLOWING the above Judgment of the Supreme Court, we hold that the unmarried daughter of first defendant, who is sixth respondent herein, is entitled to coparcenary rights and a share has to be allotted to her along with other coparceners. ( 5 ) IN the result, we hold that the coparcenary of Gangadharudu consists of himself, his four sons and a daughter. Admittedly, during the pendency of appeal, Gangadharudu died and the respondents brought to our notice that he executed a registered Will for the properties held by him. Eventhough he executed the Will for the entire property, now by virtue of our orders, the Will has to be restricted to the property that falls to his share and the legal representatives of Lokeswararao won t get share in that property since he executed a Will bequeathing the properties that fell to his share to the other legal heirs of him. The result in the appeal as pronounced on 9th July, 2003 remains the same even after allowing a share to the 6th defendant, since the plaintiffs claimed only 1/6th share in the properties held by the 1st defendant. The trial Court shall pass final decree as per the directions given above, if necessary by working out equities.