Research › Search › Judgment

Karnataka High Court · body

2015 DIGILAW 816 (KAR)

Honamma v. C. H. Honnegowda

2015-07-28

A.V.CHANDRASHEKARA

body2015
ORDER 1. The order dated 4.6.2014 passed on an application filed under Order 1 Rule 10(2) of CPC filed in FDP 8 of 1990 pending on the file of Court of Prl. Civil Judge and JMFC, Arsikere is called in question in the present petition. 2. The petitioner herein, was the first applicant and had filed an application under Order 1 Rule 10(2) of CPC seeking to come on record as respondent to the said final decree proceedings on the ground that she has a share in the suit schedule property in view of Section 6 of Hindu Succession Act, which has come into effect from 9.9.2005. The said application has been dismissed by a considered order dated 4.6.2014. Hence, the present petition is filed. Several grounds have been urged in the present petition. 3. Heard the learned counsel for the parties and perused the records. 4. Suit had been filed by plaintiff C.H. Honnegowda, respondent No. 1 herein for partition and separate possession against his father and brothers who are defendant Nos. 1 to 5 in the suit. The said suit filed for partition and separate possession came to be decreed and pursuant to the preliminary decree drawn in O.S. No. 152 of 1981, final decree proceedings have been initiated and it is numbered as FDP 8 of 1990. The said application had been filed under Order 1 Rule 10(2) of CPC by Smt. Honamma on the ground that she has been looking after her parents for the past 20-25 years and that plaintiff and other defendants have purposefully left her from being made as party to the suit and that she is entitled for a share as per Section 6 of Hindu Succession Act which has come into effect from 9.9.2005. The said application came to be objected to by the plaintiff and ultimately, the application has been dismissed on the ground that she was born prior to 1956, the year in which the Hindu Succession Act came into force and therefore she is not a necessary party. The decision reported in SA-2011-310 relied upon by the applicant is not applicable to the facts of the present case. 5. The decision reported in SA-2011-310 relied upon by the applicant is not applicable to the facts of the present case. 5. The learned counsel for the plaintiff/respondent No. 1 has argued that Division Bench of this Court, in the case of Pushpalatha N.V. vs. Padma and Others, ILR 2010 KAR 1484, has held that daughters born prior to coming into force the Hindu Succession Act, 1956 are not entitled for any share in the ancestral property and that Section 6(A) of Hindu Succession Act which has come into force from 9.9.2005 is not applicable to such daughters. It is argued that in the light of Division Bench of this Court, the Trial Court is justified in dismissing the application. 6. In the case of Ganduri Koteshwaramma and Another vs. Chakiri Yanadi and Another, (2011) 9 SCC 788 , the Hon’ble Apex Court has dealt with the modification of the preliminary decree to include the shares of daughters under Section 6 of Hindu Succession Act amended in 2005. What is clarified in the said decision is that Order 20 Rule 18 of CPC creates no impediment for passing more than one preliminary decree, if after passing of preliminary decree events have taken place necessitating readjustment of shares as declared in preliminary decree, and therefore, the Trial Court which has passed the preliminary decree can modify the same. It is further made clear that final decree is continuation of the preliminary decree and therefore, legislative intent behind Section 6 of Hindu Succession Act which has come into force from 9.9.2005, will have to be kept in mind. 7. In the case on hand, suit was filed in O.S. No. 152 of 1981 for partition and separate possession. The plaintiff Honnegowda is entitled for 1/6th of share in all the items except in land in Sy.No.10A, 16, 17 and 18 of “A” schedule. On regular appeal filed in R.A. No. 4 of 1989, he was declared for entitlement of land in Sy.No.10A also. The said preliminary decree is stated to have become final. Ofcourse the petitioner was not a party to the proceedings and she is the sister of plaintiff and daughter of defendant No. 1. The decision rendered by this Court in Pushpalatha N.V. vs. Padma stated supra, is challenged before the Hon’ble Apex Court and is admitted by the Hon’ble Apex Court. Ofcourse the petitioner was not a party to the proceedings and she is the sister of plaintiff and daughter of defendant No. 1. The decision rendered by this Court in Pushpalatha N.V. vs. Padma stated supra, is challenged before the Hon’ble Apex Court and is admitted by the Hon’ble Apex Court. Apart from this, of late a reference has been made by this Court for decision about applicability of Section 6 of Hindu Succession Act to a larger Bench and the matter is referred to larger Bench and decision is awaited. 8. Apart from this, the Hon’ble High Court of Bombay in the case of Shri Badrinarayan Shankar Bhandari and Others vs. Omprakash Shankar Bhandari, AIR 2014 Bom 154 has held that all daughters who were alive as on 9.9.2005 are entitled for share irrespective of the fact that they were born prior to or after Hindu Succession came into effect from 1956. 9. What is made clear by the Hon’ble Apex Court in the case of Ganduri Koteshwaramma that it needs no emphasis and the rights of the parties in partition suit should be settled once for all and not in any other proceedings. Further, it is made clear that Section 6 of Hindu Succession Act which has been amended by the parliament has brought about important changes in the law of succession but without affecting the special rights of the members of a Mitakshara Coparcenary. The Parliament felt that non-inclusion of daughters in the Mitakshara Coparcenary property was causing discrimination to them. Paragraph 11 of the said decision is relevant and same is extracted herein-below: “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 copercener 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.” 10. 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.” 10. Further, in the case of Ganduri Kotshwaramma, the decision rendered in the case of Phoolchad vs. Gopal Lal, AIR 1967 SC 1470 has been relied upon to hold that the Court which has passed a preliminary decree in a partition suit can pass any number of preliminary decrees since there is no prohibition in CPC against passing second preliminary decree. 11. Even the decision rendered in the case of S. Sai Reddy vs. S. Narayana Reddy, (1991) 3 SCC 647 has also been referred to in Ganduri Kotshwaramma’s case. As per the facts of the case of Sai Reddy, during the pendency of the proceedings in the suit for partition filed before the trial court and prior to the passing of final decree, Hindu Succession Act, 1956 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 i.e., is respondents 2 to 5 therein made an 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 daughters to claim share in the property by virtue of the State amendment. The unmarried daughters preferred revision against the order of the trial court before the Hon’ble High Court and Hon’ble High Court set aside the order of the trial court and declared that in view of the newly added Section 29A, 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. While upholding the order passed by the High Court of Andhra Pradesh, the Hon’ble Apex Court has held as follows in Sai Reddy’s case vide paragraph 17. The High Court further directed the trial court to determine the shares of the unmarried daughters accordingly. While upholding the order passed by the High Court of Andhra Pradesh, the Hon’ble Apex Court has held as follows in Sai Reddy’s case vide paragraph 17. The same is relevant and extracted herein-below: "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 29A 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 bene-fitting 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. 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." 12. The above legal position is squarely applicable to the facts of the present case and accordingly, the approach adopted by the Trial Court is incorrect and it needs to be corrected in terms of supervisory jurisdiction vested under Article 227 of Constitution of India. Hence, the petition is liable to allowed. ORDER The petition is allowed. The petitioner is permitted to come on record as respondent in the pending FDP 8 of 1990. Parties are entitled to file their respective objections or written statement and court to give finding on the basis of the same by framing appropriate issues. If one more preliminary decree is passed granting share to the newly added respondent, comprehensive final decree could be passed in respect of the preliminary decrees.