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Karnataka High Court · body

2014 DIGILAW 430 (KAR)

Channaveerappa Gowda v. Renukappa Gowda

2014-04-01

N.KUMAR

body2014
ORDER : N. Kumar, J. 1. This writ petition is filed by the 2nd defendant challenging the order passed by the trial court allowing I.A. under Order VI Rule 17 of the Code for including an immovable property in the Final Decree Proceedings though it was not the subject matter of the suit. 2. The plaintiffs suit for partition and separate possession of his legitimate share came to be decreed after contest. In the Regular Appeal by the 1st defendant, the decree was partly modified and the same attained finality. Thereafter, the plaintiff initiated Final Decree Proceedings. 3. The 1st defendant filed I.A. U/o VI Rule 17 of the Code for including 3 acre 28 gunta in Sy. No. 51 of Talale village, Humcha Hobli, Hosanagara Taluk claiming that it was granted by the Land Reforms Tribunal in favour of the 2nd defendant on behalf of the joint family and that it is also a Joint Family Property. Due to old age and illiteracy, he could not include the said property in the plaint schedule. 4. The said application was opposed by the 2nd defendant. The plaintiff however, did not choose to file objections. After considering the rival contentions of the parties, trial Court allowed the application on the ground that any number of the preliminary decrees can be passed before passing the final decree and the question "whether a property is a joint family property or not" can be gone into in the final decree proceedings and if it is a Joint Family Property, shares could be allotted after ordering for partition of the same. Aggrieved by this order, the present writ petition is filed by the 2nd defendant. 5. I have heard the learned counsel for the parties. 6. It is settled law that, in a partition suit, there can be more than one preliminary decree. If an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so. If there is a dispute in that behalf, the order of the Court deciding that dispute and making variation in shares specified in the preliminary decree already passed in would be a second preliminary decree which would be liable to appeal. If there is a dispute in that behalf, the order of the Court deciding that dispute and making variation in shares specified in the preliminary decree already passed in would be a second preliminary decree which would be liable to appeal. When after the preliminary decree some parties die and shares of other parties are thereby augmented, it would be convenient to the Court and advantageous to the parties, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. It is based on the principle that a partition suit would not come to an end with the passing of a preliminary decree. The suit is not over till the final decree is passed. The Court has jurisdiction to decide all disputes that may arise after preliminary decree due to deaths of some of the parties. The reason being on account of the death of some of parties, the shares allotted to them in the preliminary decree, may devolve on other parties to the preliminary decree. In which event the preliminary decree becomes defective even before a final decree is passed. There is no mechanism to correct this error, which happens because of a subsequent event after the passing of the preliminary decree and before the final decree is passed, which is beyond anybody's control. Therefore, the Supreme Court has laid down the law to fill up this lacuna in the Code in the case of Phoolchand and Another v. Gopal Lal ( AIR 1967 SC 1470 ), as under:-- 7. We are of the 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. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. 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 specification of shares in the preliminary decree varied before a final decree is prepared. 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 specification 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 parties to the suit on the question in dispute and we see no difficulty in 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. 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; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. 7. In a partition suit, first a preliminary decree is passed declaring the rights of the parties in the schedule property. During the course of final decree proceedings, the court has jurisdiction to alter shares if it is occasioned by the death of one of the sharers. Notwithstanding the declaration of rights in the preliminary decree, there may be more than one preliminary decree. If there is no dispute regarding some of the joint family properties, or the claim for partition is admitted by the defendants in respect of some of the suit schedule properties, then the Court can proceed under Order XII Rule 6 of CPC and pass preliminary decree in respect of such items at once. Thereafter, after contest yet another preliminary decree in respect of the other items of property. Similarly, there can be more than one Final Decree also. 8. This principle is also extended by the Supreme Court to a case where there is change in the law resulting in augmentation of shares. 9. Thereafter, after contest yet another preliminary decree in respect of the other items of property. Similarly, there can be more than one Final Decree also. 8. This principle is also extended by the Supreme Court to a case where there is change in the law resulting in augmentation of shares. 9. The Apex Court in the case of S. Sai Reddy v. S. Narayana Reddy [ 1991 (3) SCC 647 ] dealing with the change of law after the preliminary decree is passed before passing of the final decree held as under:-- 7......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 strata, 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. 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. 10. By virtue of Section 6 of the Hindu Succession (Amendment) Act, 2005, when a daughter is conferred the status of a coparcener, resulting in her being entitled to an equal share with the son in coparcenary property and the said law being made retrospective in operation and making it applicable to pending proceedings at any stage, a preliminary decree passed prior to the commencement of the Amendment Act requires to be varied enlarging the share of the daughter. 11. The Apex Court in the case of Ganduri Koteshwaramma and Another v. Chakiri Yanadi and Another [ (2011) 9 SCC 788 ] has held as under:-- 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. 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. 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. 12. The Apex Court in the case of Prema v. Nanje Gowda and Others, ( (2011) 6 SCC 462 ) has held as under:-- 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. 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 6A to 6C 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 6A 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. 13. However, this principle cannot be extended to include a property which was not the subject matter of the suit, at the time of passing of the preliminary decree. Variation of shares already declared in the property which is the subject matter of the suit is totally different from varying the subject matter of the suit. The reason being that what is the share to which a party to a suit is entitled to in law is purely a question of law, whereas a share in a property is dependent on the nature of the property which is purely a question of fact, which is to be decided on the facts and circumstances of the case based on the evidence adduced. Therefore, once a preliminary decree is passed in respect of the subject matter of the suit, question of including or adding a property to the subject matter of the suit subsequently and claiming a share in respect of the property so included or added is not permissible in law. In respect of the said property a separate suit is maintainable, if sufficient cause is shown for its exclusion in the earlier suit for partition. In respect of the said property a separate suit is maintainable, if sufficient cause is shown for its exclusion in the earlier suit for partition. However, on the ground final decree is not yet passed, the said property cannot be included in the suit after passing of the preliminary decree or a second preliminary decree cannot be passed nor can it be the subject matter of final decree proceedings. Further, if a property which was not the subject matter of a suit, were to be included at the stage of Final Decree Proceedings, evidence has to be recorded to decide whether it is a Joint Family Property or not and if the parties to the suit have share therein or not. By chance if a property belonging to the Joint family could not be included in the suit, a second suit for partition of the property so left out is not maintainable. But if there are acceptable reasons for not including the property in the suit, a second suit for its partition would still be maintainable. The Court would also have no such power even u/s. 153 of CPC to include a property suo moto. A suit ordinarily means a Civil proceeding instituted by presenting a plaint. 14. Coming to the case on hand, Order VI Rule 17 CPC provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings as may be necessary for determining the real question in controversy between the parties. The plaint, therefore, can be amended only at the instance of the plaintiff and the 1st defendant cannot seek to include a property in the plaint schedule. Sy. No. 51 measuring 3 acres 28 guntas is situated at Talale village, Huncha Hobli, Hosanagar Taluk was admittedly not included in the plaint. Nor did the 1st defendant make any attempt to bring the same to the notice of the court during the pendency of the suit and therefore this property could not form a part of the preliminary decree. The impugned order therefore cannot be sustained. 15. Hence, I pass the following ORDER (a) Writ petition is allowed. (b) The impugned order is set-aside. (c) However, the 1st defendant is reserved the liberty of filing a suit for partition of the property that was sought to be included in the final decree proceedings, if the law permits.