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2021 DIGILAW 824 (KAR)

D. Ranganatha Rao v. D. Sujatha

2021-08-23

N.K.SUDHINDRARAO

body2021
JUDGMENT : 1. These two appeals RSA No.327/2012 and RSA No.326/2012 are directed against the common judgment and decree passed in R.A.Nos.43/2010 and 143/2010 dtd. 28/10/2011 by the Presiding Officer, Fast Track Court-III, Bangalore Rural District, Bangalore. 2. RSA No.327/2012 is filed by defendant Nos.1(a) to (g) and defendant Nos.2 and 3 against the judgment and decree passed in R.A.No.143/2010 and RSA No.326/2012 is also filed by defendant Nos.1(a) to (g) and defendant Nos.2 and 3 against the judgment and decree passed in R.A.No.43/2010. 3. The operative portion of the common judgment passed in R.A.Nos.43/2010 and 143/2010 dtd. 28/10/2011 wherein R.A.No.43/2010 filed by legal representatives of defendant No.1- Ranganatha Rao and others came to be dismissed and R.A. No.143/2010 plaintiff-D. Sujatha came to be allowed, reads as under: "RA.43/10 is dismissed. RA.143/10 is allowed. Suit of the plaintiff is partly decreed. Plaintiff is entitled to 1/4th share of Smt. Lakshmidevamma in suit 'B' schedule property. Suit of the plaintiff is dismissed with respect to suit 'A' schedule property. With respect to other aspect, the judgment and decree and order of the trial court is confirmed. Keep copy of judgment in RA.143/10 and original in RA.43/10. Draw up preliminary decree accordingly." 4. The operative portion of the judgment passed in O.S.No.165/2003 dtd. 11/2/2010 by the learned Civil Judge (Sr.Dn) Doddaballapur reads as under: "The suit of the plaintiff is partly decreed. The plaintiff is entitled to the share of Smt. Lakshmidevamma as per Sec.8 of Hindu Succession Act on the date of death of Smt. Lakshmidevamma and the plaintiff is entitled to approach for the share of Smt.Lakshmidevamma in the FDP proceedings which are pending. Draw decree accordingly." 5. In order to avoid confusion and overlapping, the parties are referred in accordance with status and rankings as held by them before the trial court in original suit. 6. Original suit in O.S.No.165/2003 was filed by plaintiff-Smt. D. Sujatha wife of D.S. Devaraj, residing at No.18, 3rd Cross, Anjaneya Temple Street, Nagasandra, Bangalore, against defendant Nos. Draw decree accordingly." 5. In order to avoid confusion and overlapping, the parties are referred in accordance with status and rankings as held by them before the trial court in original suit. 6. Original suit in O.S.No.165/2003 was filed by plaintiff-Smt. D. Sujatha wife of D.S. Devaraj, residing at No.18, 3rd Cross, Anjaneya Temple Street, Nagasandra, Bangalore, against defendant Nos. 1 to 12, namely: (1) D.Ranganatha Rao since dead by his LRs D1(a) to (g); (2) D.B. Narasimhamurthy; (3)Smt.B. Padmavathamma w/o Bheemasena Rao; (4) D.S. Nagaraj s/o. Late Srinivasa Rao; (5) Smt.Sethu w/o.Raghavendra Rao; (6) D.S. Krishnamurthy s/o Late Srinivasa Rao; (7) D.S.Devaraj s/o. late Srinivasa Rao; (8) D.S. Sridhar s/o. Late Srinivasa Rao; (9) D.S. Padmaja D/o. late Srinivasa Rao; (10) D.S. Sudha D/o. late Srinivasa Rao; (11) D.S. Nagarathna D/o. late Srinivasa Rao and (12) D.S. Prasannalakshmi D/o. late Srinivasa Rao. 7. In the said suit, plaintiff-D. Sujatha sought the relief of declaration that she is the co-owner of the schedule properties; to declare that decree passed in RA No.101/1978 dtd. 17/1/1981 by the learned Civil Judge, Rural District, Bangalore and the judgment and decree dtd. 8/7/1991 passed in RSA No.629/1981 by the High Court are not binding the right of the plaintiff in respect of her share in the suit schedule properties and for partition by metes and bounds of her 1/4th share and also for mesne profits and other reliefs. 8. The case of the plaintiff is that, defendant No.1- D. Ranganatha Rao, along with his brother D. Bheemasena Rao filed a suit for partition on the file of Munsiff Doddaballapur in O.S.No.223/1972 against their brother late D. Srinivasa Rao in respect of the suit schedule properties and the said suit came to be dismissed. Against the said order, the defendant No.1 herein (Ranganatha Rao) and Bheemasena Rao preferred an appeal in RA No.101/1978, the said appeal was allowed. Defendant D. Srinivasa Rao therein preferred second appeal in RSA No.629/1981. The said second appeal came to be dismissed. Thereafter, Ranganatha Rao and Bheemasena Rao filed FDP Proceedings in No.3/1991 before the Munsiff, Doddaballapur. In the meantime, D.Srinivasa Rao expired and his legal representatives are defendant Nos.4 to 12. Bheemasena Rao who was plaintiff No.1 also expired and he is represented by defendant Nos.2 and 3. 9. The said second appeal came to be dismissed. Thereafter, Ranganatha Rao and Bheemasena Rao filed FDP Proceedings in No.3/1991 before the Munsiff, Doddaballapur. In the meantime, D.Srinivasa Rao expired and his legal representatives are defendant Nos.4 to 12. Bheemasena Rao who was plaintiff No.1 also expired and he is represented by defendant Nos.2 and 3. 9. It is the further claim of plaintiff-D.Sujatha that, defendant No.1 and his brothers D. Bheemasena Rao and D. Srinivasa Rao had one widowed sister by name Lakshmidevamma. She was not made a party to the partition proceedings. On coming to know about the litigation, she filed a suit in O.S.No.193/2000 for partition on the file of Civil Judge (Jr.Dn) and JMFC, Doddaballapur claiming her 1/4th share in the schedule properties and the said suit was pending. However, Lakshmidevamma expired on 18/9/2003 and she was in possession and enjoyment of 'B' schedule property until her death. She had engaged the services of two labourers, but due to erratic monsoon there was little cultivation to eke her livelihood and her servants. During the lifetime of Lakshmidevamma she executed a registered Will dtd. 24/9/1998 bequeathing the properties to plaintiff. As per the said Will, Lakshmidevamma has bequeathed her undivided share in the schedule properties. 10. It is further contended by the plaintiff-D. Sujatha that she is in possession and management of 'B' schedule property and she is regularly visiting the village and making attempts to cultivate the land which is depending on monsoon. She made attempts to bring about a compromise and seek her legitimate share. However, defendants declined to do so and initiated steps to divide the properties through a surveyor who has fixed date of division on 28-11- 2003. It is claimed that Lakshmidevamma has 1/4th share, defendant No.1 is entitled to 1/4th share, defendant Nos. 2 and 3 are entitled to 1/4th share and defendant Nos. 4 to 13 are entitled to 1/4th share in the schedule properties. After the death of Lakshmidevamma, plaintiff being the beneficiary/legattee under the registered Will is entitled to her 1/4th share. 11. The defendants contended that Lakshmidevamma has no case and her case is not maintainable, however, High Court held that case of Lakshmidevamma is maintainable in CRP No.351/1996. It is also contended that it is evident from the case filed by Lakshmidevamma that her share has been repeatedly denied for more than a decade of litigation. 11. The defendants contended that Lakshmidevamma has no case and her case is not maintainable, however, High Court held that case of Lakshmidevamma is maintainable in CRP No.351/1996. It is also contended that it is evident from the case filed by Lakshmidevamma that her share has been repeatedly denied for more than a decade of litigation. It is contended that cause of action arose on 24/9/2008 and when Lakshmidevamma executed a registered will in favour of plaintiff and on 18/9/2003 when Lakshmidevamma expired and on other dates when the rights of the plaintiff was not considered. 12. Defendant Nos.5, 6, 7 and 12 appeared through their Advocate. Defendant Nos.6, 7 and 12 adopted the written statement filed by defendant No.5. Defendant No.5 admitted the relationship between the parties and denied the other claim regarding cause of action, averments regarding other paras of plaint. Further, contended that Lakshmidevamma had filed original suit in O.S.No.28/1993 that came to be dismissed for default. On dismissal of the said suit, O.S.No.193/2000 came to be filed by Lakshmidevamma that came to be dismissed as abated on 9/9/2004. by virtue of death of Lakshmidevamma. Lakshmidevamma was not a party to the suit filed for partition by defendant No.1 in O.S.No.223/1972. The dispute went till 1991 when the defendant No.1 filed FDP No.3/1991. But it was claimed that Lakshmidevamma had a share in the suit schedule properties and that was denied even after she filed a suit which was fought over for a decade. It is also contended that defendant No.5 was not aware of the Will executed by Lakshmidevamma in favour of plaintiff-Sujatha. 13. Defendant Nos.4, 8, 9 and 10 also appeared and defendant No.8 filed his written statement that was adopted by defendant Nos.4, 9 and 10. The averments made in para 1 to 6 of the plaint were not disputed. It is stated that Lakshmidevamma used to reside along with defendant No.8 for about three months in a year and for the remaining time she used to live at Doddaballapur looking after the suit properties till her death and she has executed registered Will bequeathing her undivided share in the suit schedule properties to the plaintiff apart from her personal belongings. Defendant No.8 was also offered half share of Lakshmidevamma, but he refused to receive the same as he is permanently stationed at Bangalore and he was present at the time of execution and registration of the Will. Further he states that he has signed as a witness. The Will of Lakshmidevamma has been executed out of her own free will and volition without any influence or coercion. Defendant No.8 further admits that Lakshmidevamma had share in the suit schedule properties. 14. Legal representatives of defendant No.1, defendant No.1(a) to (g) in their written statement contended that suit of the plaintiff is not maintainable either in law or on facts and liable to be dismissed. They denied the claim for right in the schedule properties by the plaintiff. It is also contended by them that the said properties were held to be the joint family properties of the family consisting of D. Ranganatha Rao, Bheemasena Rao and Srinivasa Rao, as the surviving members of the family. Various proceedings culminated in RSA No.629/1981 and Lakshmidevamma was not a coparcener and not a party to the said proceedings. Lakshmidevamma has not challenged the findings of the partition suit that went up to regular second appeal in RSA 629/1981. During her life time, Lakshmidevamma realized that she has no right over the schedule properties and allowed O.S.No.28/1993 to get dismissed for default. The suit in O.S.No.193/2000 filed by Lakshmidevamma was dismissed as abated because of her death. As both the suits were dismissed the plaintiff cannot maintain the present suit in O.S.No.165/2003 as the legatee under Lakshmidevamma. When Lakshmidevamma never had any right, title, interest or possession over the schedule properties, the plaintiff under Lakshmidevamma cannot claim either. These defendants have denied para No.3 and they contend that D. Ranganatha Rao, Bheemasena Rao and Srinivasa Rao being the surviving members of the joint family and were in joint possession and enjoyment of the suit properties. The legal representatives of D. Ranganatha Rao, Bheemasena Rao and Srinivasa Rao are in joint possession of the same. The physical possession as held by the court of jurisdiction is with the legal representatives of late D. Srinivasa Rao and they have been directed to put Ranganatha Rao in physical possession in respect of their right in the suit properties. The FDP No.3/1991 was filed for the enforcement of the decree. The physical possession as held by the court of jurisdiction is with the legal representatives of late D. Srinivasa Rao and they have been directed to put Ranganatha Rao in physical possession in respect of their right in the suit properties. The FDP No.3/1991 was filed for the enforcement of the decree. Lakshmidevamma was married earlier to 1993 and she cannot claim any possessory right over the schedule properties in respect of her 1/4th undivided share and she at no point of time executed the Will and she has no locus standie to execute the same and even if it is executed it does not bind these defendants and no proceedings have upheld the rights of Lakshmidevamma and there is no cause of action for the said suit. 15. The trial Court on the basis of the pleadings and contentions of both the parties, framed the following issues and additional issue: 1. Whether plaintiff proves that 'B' schedule property was exclusively in possession and enjoyment of late Smt. Lakshmidevamma and she could get it cultivated through labourers? 2. Whether plaintiff further proves that Smt. Lakshmidevamma had an undivided share in the suit schedule properties with 1st defendant and another brother? 3. Whether plaintiff further prove the late Smt.Lakshmidevamma bequeathing her properties in her favor through a registered will dt.18/9/3 as claimed? 4. If so, whether the decree passed in earlier proceedings R.A.No.101/78 and RSA 629/81 are not binding upon the plaintiff, and consequently she is the joint owner of schedule properties? 5. Whether plaintiff is entitled to get the partition and separate share of late Smt. Lakshmidevamma as a beneficiary under the Registered will? 6. For what order or decree? Additional Issue framed on 19/3/2009 Whether the plaintiff proves that Late Smt. Lakshmidevamma had got any vested right to bequeath the suit properties in favour of plaintiff?" 16. 5. Whether plaintiff is entitled to get the partition and separate share of late Smt. Lakshmidevamma as a beneficiary under the Registered will? 6. For what order or decree? Additional Issue framed on 19/3/2009 Whether the plaintiff proves that Late Smt. Lakshmidevamma had got any vested right to bequeath the suit properties in favour of plaintiff?" 16. The learned trial Judge was accommodated with the following oral and documentary evidence on behalf of both the parties: "List of witnesses examined on behalf of plaintiff:- PW.1 D.Sujatha 17.9.2007 PW.2 B S Balakrishna Rao 14.7.2009 List of documents marked on behalf of plaintiff:- Ex.P1 Certified copy of Order in CRP No.351/96 Ex.P2 Pahani Ex.P3 "G' tree Ex.P4 Death Certificate of Lakshmidevamma Ex.P5 Original Will executed by Lakshmidevamma Ex.P5 (a) to (d) Signatures of Lakshmidevamma List of witnesses examined on behalf of defendants:- DW.1 D.R.Sarala 14.9.2009 DW.2 S.Srikanth 30.11.2009 List of documents marked on behalf of defendants:- Ex.D1 Judgment copy in R.A.No.101/98 Ex.D2 Decree copy in R.A.No.101/98 Ex.D3 Judgment in RSA 629/81 Ex.D4 Order Sheet in O.S.28/93 Ex.D5 Certified copy of plaint in O.S.28/93 Ex.D6 Certified copy of W/s in O.S.28/93 Ex.D7 Final order in CRP 351/96 Ex.D8 Certified copy of entire Order Sheet in O.S.No.28/93 Ex.D9 "G" tree Exs.D10 &11 Certified copy of Voter list Ex.D12 Death Certificate of Hanumanthappa" 17. The learned Judge upon conclusion of the trial and considering the oral and documentary evidence on file, answered Issue Nos.1, 3 to 5 and additional issue in the negative, issue No.2 in the affirmative and finally partly decreed the suit of the plaintiff holding that she was entitled for the share of Smt. Lakshmidevamma as per Sec. 8 of the Hindu Succession Act. 18. Being aggrieved by the said judgment and decree of the trial court, Smt. Sujatha has challenged the findings of the trial court in respect of issue Nos. 1, 3 to 5 in regular appeal No.143/2010 and her appeal came to be allowed and defendant No.1 Ranganatha Rao represented by his legal representatives and defendant Nos.2 and 3 challenged the same in RA No.43/2010 which came to be dismissed. Thus, judgment passed by the trial court in O.S.No.165/2003 as mentioned above was subjected to regular appeal by both the plaintiff-D. Sujatha and defendant No.1- D. Ranganatha Rao since dead represented by legal representatives 1(a) to (g) and defendant Nos. 2 and 3. Thus, judgment passed by the trial court in O.S.No.165/2003 as mentioned above was subjected to regular appeal by both the plaintiff-D. Sujatha and defendant No.1- D. Ranganatha Rao since dead represented by legal representatives 1(a) to (g) and defendant Nos. 2 and 3. Regular appeal filed by legal representatives of Defendant No.1 and defendant Nos. 2 and 3 was dismissed and regular appeal filed by plaintiff - D. Sujatha in RA No.143/2010 was allowed by the appellate Court on 28/10/2011. In the circumstances, the said defendant No.1- Ranganatha Rao dead by legal representatives and defendant Nos. 2 and 3 are the appellants in both these regular second appeals. 19. This Court admitted the appeals on 19-09- 2012 for considering the following substantial questions of law: (1) Are the courts below justified in applying the provisions of Hindu Succession Act, 1956 to hold Smt. Laxmidevamma was an heir as defined in Sec. 3(f) of the Act, and succeeded to the suit schedule properties when succession had opened long prior to coming into force of Hindu Succession Act, 1956 and during that time only male members were coparceners who are entitle to succeed to the joint family properties of Late D. Narasingha Rao and not a female heir and that Hindu Succession Act, being not retrospective has no application for succession opened up earlier? (2) Whether the courts below are justified in holding that the Will Ex.P.5 has been proved without considering the right to execute the WILL by Late Laxmidevamma? (3) Whether the Courts below were justified in holding that Smt. Laxmidevamma could execute WILL in respect of undivided and unascertained 1/4th share as provided under sec. 30 of the Hindu Succession Act, without deciding whether she was entitled to such share in law? 20. The following additional substantial questions of law would also arise in the circumstances: (i) Whether the plaintiff -D.Sujatha being the legatee of Lakshmidevamma under the Will stands in the place of Lakshmidevamma? (ii) Whether deceased Lakshmidevamma is entitled to be treated as a regular coparcener of the hindu joint family originally headed by D. Narasinga Rao? (iii) Whether the plaintiff-D.Sujatha is entitled to inherit the share of Lakshmidevamma under the Will dtd. 24/9/1998? (iv) Whether the suit is barred by res-judicata? 21. (ii) Whether deceased Lakshmidevamma is entitled to be treated as a regular coparcener of the hindu joint family originally headed by D. Narasinga Rao? (iii) Whether the plaintiff-D.Sujatha is entitled to inherit the share of Lakshmidevamma under the Will dtd. 24/9/1998? (iv) Whether the suit is barred by res-judicata? 21. Learned counsel for appellants Sri.P.D.Surana submits that the judgment and decree of the appellate court is against the well established principles of law as the pleading, oral and documentary evidence are ignored on material aspects. The scope of CRP 351/1996 was misinterpreted both by trial court and first appellate court. He further submits that, plaintiff-D. Sujatha is not the legal heir of Lakshmidevamma and even if the Will executed by Lakshmidevamma is presumed to be genuine, she never had legal right for seeking partition of the suit schedule properties. The trial court further failed to understand that the nature of the claim of the plaintiff was not maintainable. It was also submitted that both the trial court and first appellate court committed serious error in partly decreeing the suit. 22. It is submitted that 'B' schedule properties were shanbogh inam lands enjoyed by D. Narasinga Rao who is the late father of defendant No.1- D. Ranganatha Rao, late Bheemasena Rao and Srinivasa Rao as the latter three are the sons of D.Narasinga Rao. 23. It was further submitted that Narasinga Rao died during the year 1925 leaving behind his four sons, namely D. Ranganatha Rao, D. Bheemasena Rao, D. Krishnamurthy Rao, D. Srinivasarao and one daughter D.Lakshmidevamma. According to appellants/ defendants, during the life time of Narasinga Rao, he constituted the Joint Hindu family by himself and his sons. By virtue of death of Narasinga Rao, succession opened in the year 1925 as per Hindu law. 24. Lakshmidevamma, daughter of D. Narasinga Rao, married prior to 1953. Further in the year 1925 as per the law prevailed the joint family consisted of only the male members(sons) of Narasinga Rao and Lakshmidevamma had no right to maintain the suit claiming partition of 1/4th share. 25. It is the further submission of the learned counsel for appellants that Hindu Succession Act, of 1956 is misinterpreted and the effect of Ss. 6 and 8 of the said Act and definition of Sec. 3(f) of the said Act are wrongly understood. 26. 25. It is the further submission of the learned counsel for appellants that Hindu Succession Act, of 1956 is misinterpreted and the effect of Ss. 6 and 8 of the said Act and definition of Sec. 3(f) of the said Act are wrongly understood. 26. Learned counsel for appellants would further submit that the Hindu Succession Act had no application either to Lakshmidevamma or to the present plaintiff-D. Sujatha as the succession opened in the year 1925. The amended provisions of the Hindu Succession Act, by the amending Act of 1994 (Karnataka) and the Central Amendment Act of 2005 have no application to the case on hand. The conclusion of the learned trial Judge to hold that plaintiff Sujatha was entitled for partition is erroneous and has to be set aside. The learned trial judge allotted 1/4th undivided share that was available to Lakshmidevamma. Will stated to have been executed by Lakshmidevamma is created by the father- in- law of the plaintiff and respondents 2 to 10 in O.S.No.223/1972, wherein the suit for partition was decreed. 27. The further submission is, Lakshmidevamma had no right to execute the Will. Both the courts below failed to make note of the fact that O.S.No.28/1993 that was filed by Lakshmidevamma for partition and seeking declaration that the decree passed in RA No.101/1978 and RSA 629/1981 are not binding on her. The learned counsel further submits that the O.S.No.28/1993 was dismissed for default and there was no application filed by the plaintiff for restoration under order 9 rule 9 CPC that bars the plaintiff to come in with another suit of similar claim. 28. It is the core contention of learned counsel for appellants/defendants that Lakshmidevamma died on 18/9/2003 as such, she was not alive on the date of commencement of Amended Hindu Succession Act, 2005 and relied on the following decisions: (i) In the case of Appa Saheb versus Gurubasawwa and Another - ILR 1959 Mysore 287, and the head note is as under: Hindu Women's Rights to property Act XVIII of 1937, Ss. 2 and 3 - Hindu Widow - Disability to inherit on account of unchastity - if removed by Sec. 2 - Hindu Succession Act, 1956 - Whether retrospective. Sec. 2 of the Hindu Women's Rights to Property Act does not remove the disability of a Hindu Widow on account of her unchastity to inherit the property of her husband. 2 and 3 - Hindu Widow - Disability to inherit on account of unchastity - if removed by Sec. 2 - Hindu Succession Act, 1956 - Whether retrospective. Sec. 2 of the Hindu Women's Rights to Property Act does not remove the disability of a Hindu Widow on account of her unchastity to inherit the property of her husband. That sec. cannot be said to be intended for abrogating all the principles of Hindu law. it must be deemed to have been limited in so far as the application of Sec. 3 is called on. Ramayya v. Mottayya, AIR 1951 Mad. 954 (FB), Kanailal Mitra v. Pannasashi Mitra, AIR 1954 Cal. 588 , relied on. (ii) In the case of Padmavathi and Another versus Smt. Jayamma since dead by LRs and others - ILR 2020 KAR 2697, Head note reads as under: A) CODE OF CIVIL PROCEDURE, 1908 - ORDER 41 RULE 22 - Cross-objection - Delay in filing the cross-objection before the High Court - But, the cross-objector had taken up the very same contention before the Trial Court - "Whether the limitation period prescribed with respect to the filing of cross-objection in terms of Order 41 Rule 22 of CPC is to be strictly construed, even when the cross- objector had taken up the very same contention in the proceedings before the Trial Court?" The limitation period prescribed with respect to the filing of cross-objection in terms of Order 41 Rule 22 of CPC is not to be strictly construed, but a liberal view in regard thereto is to be taken more so when the crossobjector/s had taken up the very same contention in the proceedings before the Trial Court. - All the parties have argued substantially on the issues raised in the crossobjections; hence, none is likely to suffer any prejudice on account of allowing of the application for condonation of delay and taking the cross-objection on record. (iii) In the case of Prakash and Others versus Phulavathi and Others with Jayendra Awad versus Nivedita Sharma and Others - (2016) 2 SCC 36 . (iii) In the case of Prakash and Others versus Phulavathi and Others with Jayendra Awad versus Nivedita Sharma and Others - (2016) 2 SCC 36 . Head note is as under: Family and Personal Laws - Hindu Succession Act, 1956 - Sec. 6 [as substituted by Hindu Succession (Amendment) Act, 39 of 2005] Applicability - Not retrospective in operation - Applies only when both coparcener and his daughter were alive on date of commencement of Amendment Act i.e. 9-9- 2005, irrespective of date of birth of daughter and coparcener who dies thereafter. (iv) In the case of Vineeta Sharma Vs. Rakesh Sharma and others- 2020 (9) SCC 1 . 29. Further Lakshmidevamma had also filed another suit in O.S.No.193/2000 for the same relief that stood abated by virtue of her death on 18-9- 2003. The decreeing of O.S.No.223/1972 is not considered by the trial court and the first appellate court. As a matter of fact, judgments in regular appeal No.101/1978 and Regular Second Appeal No.629/1981 upheld the verdict passed in O.S.No.223/1972. Thus, partition was conclusive. Lakshmidevamma was not a coparcener and dismissal of suit for default does bar filing of another suit on the same cause of action. The courts below further erred in presuming that the order passed in CRP No.351/1996 is binding. When Lakshmidevamma did not inherit the property and that she was not a member of the joint family, the same was not considered by the trial court and the first appellate court. 30. Learned counsel Sri. R.B.Sadasivappa, appearing for plaintiff-D. Sujatha, who is respondent No.1 in both these appeals would submit that the Karnataka Amendment of Hindu Succession Act and amendment to Central Succession Act confirms the right of the plaintiff for partition. 31. Learned counsel for plaintiff also submit that the plaintiff has acquired the specific right, title and interest of Laksmidevamma under the will dtd. 24/9/1998 Ex.P5. The plaintiff is claiming all the rights what Lakshmidevamma possessed by virtue of the said Will. The view expressed by this court in CRP No.351/1996 is binding on the parties. As Lakshmidevamma was not a party to the partition suit that came to be instituted earlier and she is not bound by the judgment passed in the said suit. The proceedings indicate that the share of the plaintiff was recognized by the trial court and confirmed by the first appellate court. 32. As Lakshmidevamma was not a party to the partition suit that came to be instituted earlier and she is not bound by the judgment passed in the said suit. The proceedings indicate that the share of the plaintiff was recognized by the trial court and confirmed by the first appellate court. 32. The right of the plaintiff-D. Sujatha as per the present provision of law entitles her to succeed to the entire estate of Lakshmidevamma who stood at par with defendant No.1 Ranganatha Rao, Bheemasena Rao and Srinivasa Rao. 33. The genealogical tree is produced by the plaintiff which is marked as Ex.P3. The original document is in Kannada and the translated version is as under: 34. Survivors of propositus D. Narasingha Rao are three sons namely, Ranganatha Rao, Bheemasena Rao and Srinivasa Rao and daughter Lakshmidevamma. In the earlier round of proceedings, the partition suit in O.S.No.223/1972 came to be concluded in granting 1/3rd share to each members. Now that the share claimed by the plaintiff is exactly at par with Laksmidevamma who is the testatrix of the Will dtd. 24/9/1998. It is the specific case of the plaintiff that Lakshmidevamma executed the Will, bequeathed her share in the suit schedule property in favour of plaintiff and said Lakshmidevamma died on 18/9/2003 and Will become enforceable. 35. Insofar as the execution of the Will is concerned, the evidence led by the plaintiff apart from her oral evidence, she has examined PW2- B.S.Balakrishna Rao who speak regarding the execution of the Will and registration of the same and he has signed the Will -Ex.P-5 as attestor and his signature is identified on Ex.P-5. 36. Moreover, the execution of Will is not seriously disputed by the defendants. The core of their contention is that Lakshmidevamma had no right to execute or dispose of her share to the plaintiff liberally for the very reason that she was not entitled to a share (1/4th) in the joint family properties led by D. Narasinga Rao. 37. In the matter relating to the Will both execution of the Will and the competency of the testatrix are to be established. The entire result of the suit would have been on entitlement of Lakshmidevamma's share if any in the joint family properties. 38. 37. In the matter relating to the Will both execution of the Will and the competency of the testatrix are to be established. The entire result of the suit would have been on entitlement of Lakshmidevamma's share if any in the joint family properties. 38. The law relating to succession of property by a daughter has its own stages of progress and even after coming into force of Hindu Succession Act, 1956. The benefit to considerable extent was provided under Sec. 6 of the said Act, which is mentioned below: "6 Devolution of interest in coparcenary property. - (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-sec. shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub-sec. (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (2) Any property to which a female Hindu becomes entitled by virtue of sub-sec. (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,- (a) the daughter is allotted the same share as is allotted to as on; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such predeceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-sec. shall affect- (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. (5) Nothing contained in this sec. shall apply to a partition, which has been effected before the 20th day of December, 2004. 39. However, through an amendment Act, the beneficial legislation came into force wherein reliefs are provided under Sec. 6(a)(b)(c) and in this direction, the amendment Act of 2005 conferred the benefit which reads as under: "6A. Equal rights to daughter in coparcenary property.- Notwithstanding anything contained in sec. 39. However, through an amendment Act, the beneficial legislation came into force wherein reliefs are provided under Sec. 6(a)(b)(c) and in this direction, the amendment Act of 2005 conferred the benefit which reads as under: "6A. Equal rights to daughter in coparcenary property.- Notwithstanding anything contained in sec. 6 of this Act- (a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son; (b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son: Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter: Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be; (c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition; 40. In the facts and circumstances of the case, the bone of contention between the parties is to the effect that Lakshmidevamma who is admittedly the daughter of D. Narasinga Rao did not hold a share for bequeath. In the facts and circumstances of the case, the bone of contention between the parties is to the effect that Lakshmidevamma who is admittedly the daughter of D. Narasinga Rao did not hold a share for bequeath. Further, either Lakshmidevamma or Sujatha, plaintiff claiming under said Lakshmidevamma because of earlier dismissal of the suit for non prosecution in O.S.No.28/1993 and in view of abatement of suit in O.S.No.193/2000, dismissal of a suit for non prosecution may not come as an embargo as suit is not decided finally on merits. 41. The legal position is clear that whenever the matter is directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, means and implies that a particular issue was adjudicated in accordance with law and as such the matter which is dismissed for default or abated does not literally and substantially lays down the decision of the court in totality. This legal position is already decided in the following decisions: (i) In the case of Delhi Development Authority Vs. Bhola Nath Sharma reported in AIR 2011 SC 438, where the Supreme Court summarily dismissed the special leave petition without going into the merits of the case and no question of law was decided, the judgment of the Supreme Court would not operate as res judicata. (ii) Yashodhara Ameta Vs. Vishnu Shankar Taliwal reported in AIR 2011 Rajasthan 43, wherein it is stated that, in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on merits. Merely because subsequent transferee pendent lite had filed objections under Sec. 47, the binding effect of the earlier order which had attained finality would not stand obliterated. Hence, a fresh objection petition in an execution proceedings would be barred by the principles of resjudicata. Hence, it could not be said of a matter that it was 'heard and finally decided', if the former suit was dismissed. (iii) In the case of Angammal Vs. Vittal reported in 1958 (1) Andhra pradesh W.R. 524 and in the case of Mahalakshmi Vs. Pammigaramma reported in AIR 1958 Orissa 139, wherein it is observed that, merely framing an issue is not enough to attract res judicata. (iii) In the case of Angammal Vs. Vittal reported in 1958 (1) Andhra pradesh W.R. 524 and in the case of Mahalakshmi Vs. Pammigaramma reported in AIR 1958 Orissa 139, wherein it is observed that, merely framing an issue is not enough to attract res judicata. There must be a decision on the issue, express or implied, which forms the basis of the decree. 42. Deceased Lakshmidevamma unsuccessfully tried to get impleaded as a party in the final decree proceedings in partition suit O.S.No.223/1972 which was among the sons of D.Narasinga Rao. The nature of the suit schedule property as belonging to joint family need not be read too much in between the lines as the matter has been finally disposed of in O.S.No.223/1972. 43. The cumulative effect of the partition is that, rights were first discussed in this court in CRP No.351/1996. Extract of the relevant para of the order in CRP No.351/1996 is as under: "I make it clear that the dismissal of this revision will not stand in the way of plaintiff filing a separate application claiming relief in respect of the properties which are said to be in her possession. If such an application is made, the trial court shall consider the same on its own merits as to whether the plaintiff has made out a prima facie case warranting any order in her favour." 44. It is not the case that the partition was already effected and the Lakshmidevamma cannot claim a share by seeking partition by virtue of amendment act. Her right to prosecute is on the basis of a daughter in a joint Hindu family. It is in this connection some of the relevant paras in the judgment passed by the Hon'ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and others reported in 2020 (9) SCC 1 are necessary to be mentioned: "54. In view of the provisions contained in sec. 6 when a coparcener is survived by a female heir of Class I or male relative of such female, it was necessary to ascertain the share of the deceased, as such, a legal fiction was created. The Explanation I provided legal fiction of partition as if it had taken place immediately before his death, notwithstanding whether he had the right to claim it or not. The Explanation I provided legal fiction of partition as if it had taken place immediately before his death, notwithstanding whether he had the right to claim it or not. However, a separated Hindu could not claim an interest in the coparcenary based on intestacy in the interest left by the deceased. 55. The amended provisions of sec. 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Sec. 6(1)(a) makes daughter by birth a coparcener "in her own right" and "in the same manner as the son." Sec. 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Sec. 6(1)(b) confers the same rights in the coparcenary property "as she would have had if she had been a son". The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9/9/2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20/12/2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated. 56. The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended sec. 6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act." 45. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended sec. 6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act." 45. It is necessary to mention Sec. 6(3) of the Hindu Succession Act which reads as under: xxx xxx xxx xxx xxx xxx (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,- (a) the daughter is allotted the same share as is allotted to as on; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such predeceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such predeceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. 46. It is also relevant to extract the following para from the decision of the Hon'ble Apex Court in Vineeta Sharma's case stated supra: "64. The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Sec. 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9/9/2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 9/9/2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted sec. 6(3). In ref: Effect of enlargement of daughter's rights 47. It is to be noted that the Will claimed by plaintiff is stated to have been executed by Lakshmidevamma. In this connection, the plaintiff has examined herself as PW-1 and examined one Balakrishna Rao as PW-2 who has deposed regarding the execution of the Will by Lakshmidevamma dtd. 24/9/1998 and also about registration of the same and he has signed on the Will as a witness. 48. The substance of the evidence of the said witness is that, Lakshmidevamma executed the Will bequeathing the schedule property in favour of Plaintiff-D. Sujatha. 49. The effect of amendment to the Hindu Succession Act, 2005 is, the daughter is made coparcener with effect from the date of amendment and she can claim partition also. Further, the coparcenery exists on 9/9/2000 to enable the daughter of the co-parcener to enjoy the rights acquired on her. The significant factor is right is by birth and not of deemed inheritance. It is relevant to note that coparcener daughter is conferred with the rights if alive or not. Conferment is not based on the death of father or other coparcener. I am guided in this connection by the decision of the Apex Court in Vineeta Sharma's case at para No.64. Thus, the succession is claimed by plaintiff under Lakshmidevamma through testamentary succession. In this connection, para No.65 of the said decision is necessary to be mentioned and it is as under: "65. Under the proviso to sec. 6 before the amendment made in the year 2005 in case a coparcener died leaving behind female relative of Class I heir or a male descendant claiming through such Class I female heir, the daughter was one of them. Sec. 6, as substituted, presupposes the existence of coparcenary. It is only the case of the enlargement of the rights of the daughters. The rights of other relatives remain unaffected as prevailed in the proviso to sec. 6 as it stood before amendment." 50. Sec. 6, as substituted, presupposes the existence of coparcenary. It is only the case of the enlargement of the rights of the daughters. The rights of other relatives remain unaffected as prevailed in the proviso to sec. 6 as it stood before amendment." 50. By virtue of the Will executed in favour of the plaintiff what all the estate the deceased Lakshmidevamma had with her devolved in favour of the plaintiff. Insofar as the schedule properties are concerned no doubt, it is an undivided share. Insofar as the suit for partition earlier filed by the defendants in O.S.No.223/1972 reached its finality in RSA No.629/1981 and the concluding operative portion of the said judgment is as under: "Plaintiffs 1 and 2 and defendant No.1 each would be entitled to 1/3rd share in the suit schedule property. With this modification, this appeal is disposed off. No costs." 51. No doubt that Lakshmidevamma sought for her share by getting herself impleaded in the FDP proceedings. However, it was not entertained. In this connection the order passed in CRP No.351/96 preferred by Laksmidevamma is already stated above. 52. Thus, it is not a claim by defendants that the partition was already effected long prior to the passing of the Hindu Succession Amendment Act, 2005. On the other hand, in the suit that was filed by defendants, Lakshmidevamma was not a party. Moreover, legal position is not adjudicated. 53. Here it is necessary to mention para Nos. 73, 74 and 75 of the said decision cited supra, which reads as under: "73. It was vehemently argued that if the daughter is given the right to be a coparcener by birth and deemed to become a coparcener at any point in the past, in the normal working of the law, uncertainty would be caused. In our opinion, no uncertainty is brought about by the provisions of sec. 6 as the law of Mitakshara coparcenary makes the share of surviving coparceners uncertain till actual partition takes place. Uncertainty in the right of share in a Mitakshara coparcenary is inhered in its underlying principles, and there is no question of upturning it when the daughter is treated like a son and is given the right by birth; to be exercised from a particular date, i.e., 9/9/2005. It is not to resurrect the past but recognising an antecedent event for conferral of rights, prospectively. It is not to resurrect the past but recognising an antecedent event for conferral of rights, prospectively. There is no doubt about it that advancement brings about the enlargement of the size of the coparcenary and disabling it from treating the daughter unequally. Even otherwise, its size could be enlarged by the birth of a son also. By applying sec. 8, the joint possession was not repudiated by the fact that a female, whether a wife or daughter, inherited the share of coparcener under the proviso to original sec. 6. She was an equal member of the joint Hindu family and deemed statutory partition did not bring disruption of the coparcenary. 74. In Prakash v. Phulavati, father died in the year 1988, daughters filed a suit for partition in 1992, same was dismissed in 2007, entitlement was given to the daughters to a share on a notional partition under the proviso to sec. 6 in the share of the coparcener father. However, the High Court applied the amended provisions of sec. 6 to the pending proceedings and treated daughters equally with sons. As such, the matter travelled to this Court. It was held that the proviso is not retrospective. The requirement of partition being registered can have no application to statutory notional partition, on the opening of succession as per the unamended proviso to sec. 6, having regard to the nature of such partition, which is by operation of law. It was opined: "17. The text of the amendment itself clearly provides that the right conferred on a "daughter of a coparcener" is "on and from the commencement of the Hindu Succession (Amendment) Act, 2005". Sec. 6(3) talks of death after the amendment for its applicability. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. [Shyam Kumar v. Ram Kumar, (2001) 8 SCC 24 , paras 22 to 27] In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. [Shyam Kumar v. Ram Kumar, (2001) 8 SCC 24 , paras 22 to 27] In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained. 18. The contention of the respondents that the amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the amendment applicable on and from its commencement and only if death of the coparcener in question is after the amendment. Thus, no other interpretation is possible in view of the express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20/12/2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Sec. 6(5) by being limited to a transaction of partition effected after 20-12- 2004. Notional partition, by its very nature, is not covered either under the proviso or under sub-sec. (5) or under the Explanation. xxx 23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9/9/2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12- 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation. xxx 27.2. Disposition or alienation including partitions which may have taken place before 20-12- 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation. xxx 27.2. In Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum (1978) 3 SCC 383 , Shyama Devi v. Manju Shukla (1994) 6 SCC 342 and Anar Devi v. Parmeshwari Devi (2006) 8 SCC 656 cases this Court interpreted Explanation 1 to Sec. 6 (prior to the 2005 Amendment) of the Hindu Succession Act. It was held that the deeming provision referring to partition of the property immediately before the death of the coparcener was to be given due and full effect in view of settled principle of interpretation of a provision incorporating a deeming fiction. In Shyama Devi (supra) and Anar Devi (supra) cases, same view was followed. 27.3. In Vaishali Satish Ganorkar v. Satish Keshaorao Ganorkar, AIR 2012 Bom. 101 , the Bombay High Court held that the amendment will not apply unless the daughter is born after the 2005 Amendment, but on this aspect a different view has been taken in the later larger Bench judgment [AIR 214 Bom 151]. We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the date of the amendment." 75. A finding has been recorded in Prakash v. Phulavati that the rights under the substituted sec. 6 accrue to living daughters of living coparceners as on 9/9/2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of "living coparcener", as laid down in Prakash v. Phulavati. In our opinion, the daughters should be living on 9/9/2005. In substituted sec. 6, the expression 'daughter of a living coparcener' has not been used. Right is given under sec. Hence, we respectfully find ourselves unable to agree with the concept of "living coparcener", as laid down in Prakash v. Phulavati. In our opinion, the daughters should be living on 9/9/2005. In substituted sec. 6, the expression 'daughter of a living coparcener' has not been used. Right is given under sec. 6(1)(a) to the daughter by birth. Declaration of right based on the past event was made on 9/9/2005 and as provided in sec. 6(1(b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in sec. 6(1)(c). Any reference to the coparcener shall include a reference to the daughter of a coparcener. The provisions of sec. 6(1) leave no room to entertain the proposition that coparcener should be living on 9/9/2005 through whom the daughter is claiming. We are unable to be in unison with the effect of deemed partition for the reasons mentioned in the latter part. 54. Para No.75 of the said decision was stressed by the learned counsel for appellants and submitted that right of a daughter is absolved if she is not alive on the date of amendment and when the daughter (Smt.Lakshmidevamma) in this connection was not alive as on the date of amendment as she is reported dead during the year 2003. The question of claiming under her Will does not arise. In this connection, it is necessary to go through para No.75 of the said judgment. The said para also has to be read in connection with para No.54 when a daughter is equated to that of a son she has coparcenery stand in tact to that of a son. The disqualification cannot be applied on the basis of the gender. Their Lordships have clearly analyzed scope of amendment and right of a daughter by virtue of amendment. 55. In this connection, none of the portion of Sec. 6 is held void or non operating or unconstitutional by their Lordships in the said judgment. 56. In this connection, para No.81 has to be read which is as under: "81. It is settled proposition of law that without partition, only undivided share can be sold but not specific property, nor joint possession can be disrupted by such alienation. 56. In this connection, para No.81 has to be read which is as under: "81. It is settled proposition of law that without partition, only undivided share can be sold but not specific property, nor joint possession can be disrupted by such alienation. Whether the consent of other coparcener is required for sale or not, depends upon by which School of Mitakshara law, parties are governed, to say, in Benares School, there is a prohibition on the sale of property without the consent of other coparceners. The Court in the abovesaid decision made general observation but was not concerned with the aspect when the partition was completed, the effect of intervening events and effect of statutory provisions as to partition, as such, it cannot be said to be an authority as to provisions of sec. 6 as substituted and as to enlargement of the right by operation of law achieved thereunder. Shares of coparceners can undergo a change in coparcenary by birth and death unless and until the final division is made. The body of coparcenary is increased by the operation of law as daughters have been declared as a coparcener, full effect is required to be given to the same. The above decision cannot be said to be an authority for the question involved in the present matters." 57. The nature of partition when all the properties are not covered is mentioned in para Nos. 89 and 90 of the said judgment which reads as under: "89. In Poornandachi v. Gopalasami, AIR 1936 PC 281 , only one of the members was given the share by way of instrument of partition. It was also provided that the rest of the property was to remain joint. It was held that there was no partition between the other members. In I.T. Officer, Calicut v. N.K. Sarada Thampatty, AIR 1991 SC 2035 , it was held that if a preliminary decree for partition is passed, it will not amount to a partition unless an actual physical partition is carried out pursuant to a final decree. 90. In S. Sai Reddy v. S. Narayana Reddy and Ors. (1991) 3 SCC 647 , a suit for partition, was filed. A preliminary decree determining the shares was passed. The final decree was yet to be passed. 90. In S. Sai Reddy v. S. Narayana Reddy and Ors. (1991) 3 SCC 647 , a suit for partition, was filed. A preliminary decree determining the shares was passed. The final decree was yet to be passed. It was observed that 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. A preliminary decree 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, and the preliminary decree does not bring about any irreversible situation. The concept of partition that the legislature had in mind could not be equated with a mere severance of the status of the joint family, which could be effected by an expression of a mere desire by a family member to do so. The benefit of the provision of sec. 29A could not have been denied to women whose daughters were entitled to seek shares equally with sons in the family. In S. Sai Reddy (supra), it was held: "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 Sec. 29-A to support his contention that it does. Clause (ii) of the sec. 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. 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. 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 Sec. 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 sec. of the society in all its stratas, it is necessary to give a liberal effect to it. Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable sec. 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 sec. 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 sec. 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 Sec. 29-A was not attracted in the present case and the respondent-daughters were entitled to their share in the family property." (emphasis supplied)" 58. It was submitted by learned counsel for defendants that the properties were granted under Inams Abolition Act to one Narasinga Rao, but the properties thus granted under Inams Abolition Act to any member of a joint family, the undisputed notion is the benefit of grant belonged to joint family and all the members of the joint family have a share in the same. When there existed a joint family when confirmation of occupancy rights by the Government in respect of agricultural land on any member of the joint family, it would enure to the benefit of the members of such joint family. 57. Here, it is necessary to mention concluding paras in the said judgment which reads as under: "129. When there existed a joint family when confirmation of occupancy rights by the Government in respect of agricultural land on any member of the joint family, it would enure to the benefit of the members of such joint family. 57. Here, it is necessary to mention concluding paras in the said judgment which reads as under: "129. Resultantly, we answer the reference as under: (i) The provisions contained in substituted Sec. 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. (ii) The rights can be claimed by the daughter born earlier with effect from 9/9/2005 with savings as provided in Sec. 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004. (iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9/9/2005. (iv) The statutory fiction of partition created by proviso to Sec. 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Sec. 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. (v) In view of the rigor of provisions of Explanation to Sec. 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly. 130. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly. 130. We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Sec. 6. Hence, we request that the pending matters be decided, as far as possible, within six months. In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju and Ors. The opinion expressed in Danamma @ Suman Surpur and Anr. v. Amar is partly overruled to the extent it is contrary to this decision. Let the matters be placed before appropriate Bench for decision on merits." 58. It is clear that in the facts and circumstances of the case, when equal rights are conferred on daughters as congruent to sons by birth, right gets devolved on heirs. In the present case, the Will is not seriously disputed insofar as execution is concerned. The death of a daughter is not an embargo for her legal heirs, legatees to claim under her. Further, dismissal of OS No.28/1993 for default and dismissal of OS No.193/2000 as abated do not prevent the conducting of the proceedings for adjudication of the present case. 59. The Will marked as Ex.P5 in O.S.No.165/2003 is executed by Lakshmidevamma on 24/9/1998 and she died on 18/9/2003 and Will is found to have been proved. At the same time, the properties bequeathed to the plaintiff Sujatha and Rashmi are two in numbers, they are land to the extent of 9 acres 27 guntas in Sy.No.367 of Aralu Mallige village and land to the extent of 3 acres of Yakashipura village in Sy.No.229. 60. The subject matter of the bequest is, 1/4th share in the said properties. 60. The subject matter of the bequest is, 1/4th share in the said properties. 'A' and 'B' schedule properties in the plaint are as under: SCHEDULE-A All that piece and parcel of the agricultural land in sy.no.229 of Yakshipura village, kasaba hobli, Doddaballapura taluk, measuring 3.34 acres bound on the: East by Kodihalla and land of Gururaja Rao, West by Hori Kargayya's land of Raja kaluve, North by Land of Chikkaveera Shetty, South by Hori Kargayya's land and Raja kaluve. SCHEDULE - B All that piece and parcel of the agricultural land in sy.no.367 of Aralmallige village, kasaba hobli, Doddaballapura taluk, measuring 9.28 acres bound on the : East by Tank West by Lands of Sonnappa and Eyregoda North by Talavar inam land West by Land of Patelappa. 61. The schedule properties in the earlier suit filed by D. Bhimsena Rao and D.Ranganatha Rao in O.S.No.223/1972 is extracted from the judgment passed in RA No.101/1978 which are as under: (i) S.No.229, net land measuring 3-34 acres assessed at Rs.28.00 bounded on the East by Kodihalla, after this Gururajarao's land, West by Sri. Karagaiah's land and Rajakaluve, North by: Chikkaveerasetti's land and Raja Kaluve; (ii) S.No.367, dry land measuring 8-28 guntas assessed at Rs.15.00 bounded on the east by: Tank; West by:Hanchinamane Sonnappa and Byregowda; North by: Talwara Inam; South by: Pannepatelappa's land. 62. 1/3rd share was in respect of the said properties. Now the proportion becomes 1/4th but the properties remain same. They are declared already to be the joint family properties of the family lead by Sri.Narasinga Rao, father of Smt.Lakshmidevamma. Her will in favour of plaintiff is in respect of 1/4th share in two items of the properties under the will. (The said two properties are nothing but the suit schedule properties in the suit filed by Sri. D. Ranganatha rao and Bhimasena Rao, brothers of Lakshmidevamma. Further they are the same in the present suit as well.) 63. Thus, 1/4th share in both the properties are bequeathed to plaintiff and her daughter Rashmi who is stated to be in the company of the plaintiff. It is submitted that no hostility is there between them. Thus, the properties bequeathed by Lakshmidevamma consists her 1/4th share in both the items of the properties. 64. Thus, 1/4th share in both the properties are bequeathed to plaintiff and her daughter Rashmi who is stated to be in the company of the plaintiff. It is submitted that no hostility is there between them. Thus, the properties bequeathed by Lakshmidevamma consists her 1/4th share in both the items of the properties. 64. It is necessary to mention that in the light of the nature of the properties as joint family properties, the contention of the defendants that land being granted to Ranganath Rao is not a joint family property cannot be accepted. Here, it is necessary to mention that, the joint family properties may consists of ancestral properties, properties earned out of the income or accretion from the ancestral properties, properties earned by joint family members through business and blended properties of a member, granted properties to a person while he was a joint family member, wherein the grant results through identity and efforts of the joint family members consists of grant being made in favour of a particular member. In this connection, it is necessary to mention that property granted by the Tribunal or under Inam Abolition Act cannot be construed to be a separate property of that particular member. On the other hand, it enure to the benefit of all the members which includes deceased Lakshmidevamma also, whose identity in terms of her rights as a member of joint family is considered by birth which is bequeathed by her in favour of plaintiff-D. Sujatha. 65. Here, it is necessary to mention Order 41 Rule 22 of Code of Civil Procedure which reads as under: 22. UPON HEARING RESPONDENT MAY OBJECT TO DECREE AS IF HE HAD PREFERRED A SEPARATE APPEAL. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. Explanation-A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent. (2) Form of objection and provisions applicable thereto Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. (3) Unless the respondent files with the objection a written acknowledgement from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent. (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. (5) The provisions-relating to appeal by indigent persons shall, so far as they can be made applicable apply to an objection under this rule. 66. Though separate appeal is not filed, plaintiff is entitled for 1/4th share in both the properties. The learned appellate judge lost notice of the proper entitlement of share in accordance with the Will dtd. 24/9/1998 over both the schedule properties. The substantial questions of law are answered accordingly. 67. For the foregoing reasons, the appeals are dismissed. The judgment and decree passed by both the courts are set aside holding that the decree passed in RA No.101/1978 dtd. 17/1/1981 and the judgment and decree passed in RSA No.629/1981 dtd. 8/7/1991 do not bind the right of the plaintiff to the extent of her 1/4th share is concerned. In the result, the suit of the plaintiff is decreed as prayed for.