IN THE HIGH COURT OF KARNATAKA AT BENGALURU B E F O R E THE HON BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NO OF 2014 (GM-CPC)

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1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28 TH DAY OF SEPTEMBER, 2015 B E F O R E THE HON BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NO OF 2014 (GM-CPC) BETWEEN: SMT CHEEKANDA PUSHPARATNA CHENGAPPA W/O MR CHEEKANDA SAGAR D/O LATE KODANDERA KUTTAIAH AGED 53 YEARS RESIDING AT NO.919 RAJARAJESHWARINAGAR MYSORE-22 (BY SRI.C.M.PONACHA, ADV.) PETITIONER AND: 1. MR KODANDERA K SUDHAKAR S/O LATE KODANDERA M KUTTAIAH AGED 49 YEARS RESIDING AT KUNDA VILLAGE AND POST SOUTH KODAGU MRS KODANDERA PREETHA SUDHAKAR W/O MR KODANDERA K SUDHAKAR AGED 48 YEARS RESIDING AT KUNDA VILLAGE & POST SOUTH KODAGU

2 2 3. MRS. KODANDERA RADHA W/O LATE KODANDERA KUTTAIAH AGED ABOUT 83 YEARS RESIDINGAT KUNDA VILLAGE & POST SOUTH KODAGU PRESENTLY AT NO.919 RAJARAJESHWARINAGAR MYSORE-22 RESPONDENTS (BY SRI.S.R.SREEPRASAD, ADV. FOR R1 AND R2; R3 IS SERVED BUT UNREPRESENTED) THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED PASSED ON I.A.NO.3 IN FDP NO.6/2011 BY THE COURT OF THE SENIOR CIVIL JUDGE & JMFC VIRAJPET (ANNX-A). THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER O.S.No.26/2010 filed by the petitioner, against the respondents, in the Court of Senior Civil Judge and JMFC at Virajpet, was decreed on and she was held entitled for 1/3rd share in the suit schedule properties. The petitioner instituted F.D.P.No.6/2011 for passing of a final decree. The respondent Nos.1 and 2 filed I.A.No.3, under Section 151 CPC, to reduce and allot 1/9 th share to

3 3 the plaintiff and further enhance and allot 4/9 th share, out of the suit schedule properties, to the first defendant. Overruling the objections filed by the plaintiff, I.A.No.3 was allowed and the share allotted to the plaintiff in the preliminary decree was reduced to 1/9 th and the shares of the defendant Nos.1 and 3 was enhanced to 4/9 th each, vide order dated This writ petition is directed against the said order. 2. Sri C.M.Poonacha, learned advocate, firstly contended that in a suit for partition, although shares of the parties could be varied upto the passing of final decree, such variation of shares determined under a preliminary decree can be sought by a party only on certain event having taken place, necessitating readjustment of the shares as declared in the preliminary decree. He submitted that in the present case, respondent Nos. 1 and 3 having not set out any such reason in I.A. No.3, Trial Judge has committed illegality in entertaining the same. Secondly, Trial Judge has committed error and

4 4 illegality in arriving at the conclusion that the notional partition had taken place prior to the coming into force of the Hindu Succession (Amendment) Act, (39 of 2005) and in holding the amendment made to the Act is prospective in nature. Thirdly, the binding judgment in the case of PUSHPALATHA N.V., Vs. V.PADMA, AIR 2010 KAR 124, holding that the substituted provision of the Act is retrospective in operation has been illegally ignored. Fourthly, there is illegality in not applying the ratio of law laid down by the Apex Court in the case of GANDURI KOTESHWARAMMA Vs. CHAKIRI YANADI, 2011 (9) SCC 788. Learned advocate submitted that no new circumstance having arisen after the passing of the preliminary decree, the impugned order is perverse and is liable to be set aside. 3. Sri S.R.Sreeprasad, learned advocate, on the other hand, submitted that Hindu Succession Act, 1956 (as amended by Act No.39/2005) being prospective in nature and in the present case, the succession having taken place on i.e., on the date of death of the propositus

5 5 Kuttaiah, the plaintiff being not entitled to get equal share along with the defendant Nos. 1 and 3, I.A.No.3 was filed for readjustment of the shares, in the final decree proceedings. Learned counsel submitted that the decision in the case of PUSHPALATHA N.V. (supra) has been questioned in the Apex Court and the appeal is still pending. By placing reliance on the decisions in (i) SHEELA DEVI Vs. LAL CHAND, (2006) 8 SCC 511 AND (ii) PREMA Vs. NANJEGOWDA, 2011(6) SCC 462, learned counsel supported the impugned order. 4. Perused the writ petition and considered the rival contentions. It is trite that the preliminary decree determines the rights and interests of the parties and that the suit for partition is not disposed of by the passing of a preliminary decree and it is by a final decree, that an immovable property of a Joint Hindu Family, is partitioned by metes and bounds. 5. In GANDURI KOTESHWARAMMA s case (supra), Apex Court has held, that after the passing of preliminary

6 6 decree, the suit continues until the final decree is passed and in the interregnum i.e., after passing of the preliminary decree and before the final decree is passed, if 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 re-determining the rights and interests of the parties having regard to the changed situation. 6. In SHEELADEVI S case (supra), Apex Court was concerned with a fact situation where Baburam died in the year 1989 leaving behind two sons and three daughters. The elder son Lal Chand was born in 1938 whereas Sohan Lal was born in Baburam had inherited the share in the coparcenary property left by his father. High Court considered the question, whether Section 8 of the 1956 Act would apply or the law as applicable prior to 1956 Act would apply. High Court held that the law applicable before 1956 would govern the rights of the parties and not the provisions of 1956 Act. In the appeal preferred by the

7 7 sisters, Supreme Court held that the succession having opened in 1989 on the death of Baburam, evidently, the Hindu Succession Act, 1956 would apply and the provisions of the Amendment Act of 2005 would have no application. 7. In Prema s case(supra), while considering the question, whether a party, who has failed in the challenge to the preliminary decree passed in a suit for partition, can seek enhancement of the share in the Joint Family Property in the final decree proceedings, in terms of an amended provision of Act, by the Karnataka Legislature, it has been held as follows:- 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 the 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

8 8 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. (emphasis supplied) 8. In the present case, reasons for allowing of I.A.No.3 and reduction of the share of the plaintiff to 1/9 th and enhancement of the shares of the defendant Nos.1 and 3, to 4/9 th each, is on account of the conclusion reached that, (i) the amended Hindu Succession Act, 1956 is prospective in nature and (ii) the succession having taken place on with the death of the propositus. 9. The plaintiff and defendant Nos.1 and 3 in O.S. No. 26/2010 are the daughter, son and widow, respectively of Kuttaiah, the propositus, who died on There being no partition of the joint family property, the petitioner instituted O.S.No.26/2010, on , to pass a decree of partition and separate possession. Despite service of summons, the defendants having remained absent, were placed exparte. Plaintiff

9 9 having got herself examined as PW-1 and marked Exhibits P.1 to P.9, the suit was decreed on , entitling her to 1/3 rd share in the suit schedule properties, by way of partition by metes and bounds. On the basis of the preliminary decree, F.D.P.No.6/2011 was filed on , to conduct the survey and to divide the properties into three divisions and put the plaintiff into possession of her 1/3 rd share. I.A.No.3 was filed on , under Section 151 CPC, to reduce the share of the plaintiff and enhance shares of the defendant Nos.1 and 3 and to draw a final decree accordingly. I.A.No.3 was allowed on the aforesaid reasoning. 10. Modification of preliminary decree prior to passing of final decree is permissible, 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 the change in shares. In the present case, in the affidavit filed in support of the prayer made in I.A.No.3, the respondents have not pointed

10 10 out any event or supervening circumstance, necessitating the change in shares determined as per the preliminary decree passed on Sri.S.R.Sreeprasad, learned advocate also did not contend that after passing the preliminary decree any event or supervening circumstance as having occurred. His contention was that the succession having taken place on , with the passing of the proposition-kuttaiah, the shares allotted in the preliminary decree being not in conformity with law, IA.No.3 was filed to modify the shares and pass the final decree accordingly. 11. The decision rendered in PUSHPALATHA (supra), on , having not been stayed in the Appeal, is binding on the Trial Judge. Point No.4 formulated for determination in the said decision is, Whether the amended provision i.e. Section 6 of Hindu Succession Act (Act No.39 of 2005) is prospective or retrospective in nature? After considering the rival contentions (Paras 92 to 103), it was held that, substituted provision is retrospective in nature, as is

11 11 expressly declared so, in the Section itself. It was made clear that the amendment is not prospective. Despite the said declaration, the Trial Judge has arrogated to himself in holding that the Hindu Succession Act, 1956, (as amended by Amendment Act (39 of 2005)) is prospective in nature and not retrospective. The act of the Trial Judge in not noticing and following the binding decision, which is squarely applicable to the present case, being illegal cannot be countenanced. 12. In PREMA s case (supra), a suit for partition and separate possession of his share filed by the respondent No.1 therein, was decreed and it was held that the plaintiff and defendant No.3 are entitled to 2/7th share and defendant Nos. 1, 4, 5 and 6 are entitled 1/28 th share. An appeal filed by Smt.Prema, who was defendant No.6 in the suit and defendant Nos. 1,4 and 5 was dismissed. Second Appeal filed by defendants 1, 4, and 5 was dismissed on the ground that it is barred by limitation. Plaintiff having instituted the final decree proceedings, defendant No.6

12 12 filed an application, under Section 151 CPC, for amendment of the preliminary decree and for grant of declaration, in terms of Section 6-A, inserted to the Act, by the aforesaid amendment, and to hold that she is entitled to 2/7 th share in the suit property. Application was dismissed on the ground that Section 6-A of the Act, as amended, is not retrospective and that the amendment made to the Act can be applied only to the cases in which partition of the joint family properties is effected after , but the same cannot be relied upon for amending the decree, which has become final. It was observed that, even if the daughter remains unmarried, she cannot be treated as a co-parcener, because, after partition, there remains no joint family. Application was also found to be barred by time. Challenge laid to the said order having been negatived, on the ground that with the dismissal of the second appeal, the preliminary decree passed had become final and during the pendency of the second appeal filed by the defendant Nos. 1, 4 and 5, the appellant had not prayed for enhancement of her share in

13 13 the joint family properties, in terms of Section 6-A, the said order having been assailed in the Apex Court, taking note of the Karnataka Act No.23/1994, extending equal rights to daughter as a co-parcener in the property, it has been held as follows: 17. In this case, the Act was amended by the State Legislature and Sections 6-A to 6-C 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 6-A came into force on , 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. (emphasis supplied) 13. In GANDURI KOTESHWARAMMA s case (supra), partition had taken place between father and two sons, each of them getting 1/3 rd of the coparcenary property. Thereafter, when the father died, his interest in the coparcenary property was divided on notional partition in terms of proviso to erstwhile Section 6(1) of the Principal

14 14 Act between two daughters and two sons. A preliminary decree was passed in 1999, which was amended in The final decree for partition was not yet passed, when the Amendment Act 2005 came into force on 9 th September, In view of the said amendment, two daughters sought a share in the property claiming to be equal to their brothers' share and prayed for amendment of the preliminary decree on that basis. The Trial Court allowed the daughters' application by order dated 15 th June, 2009 and held that they were entitled for re-allotment of shares in the preliminary decree, i.e., they are entitled to 1/4 th share each and separate possession. The plaintiffs/brothers challenged the order of the Trial Court in appeal before the Andhra Pradesh High Court. The Single Judge of the High Court allowed the appeal and set aside the order of the Trial Court. In the appeal filed by sisters, the Supreme Court set aside the order of the High Court and restored the order of the Trial Court and directed the Trial Court to proceed for preparation of the final decree in

15 15 terms of its order dated 15 th June, Therein, it has been held as Follows: 19. The High Court was clearly in error in not properly appreciating the scope of Order XX Rule 18 CPC. In a suit for partition of immovable property, if such property is not assessed to the payment of revenue to the government, ordinarily passing of a preliminary decree declaring the share of the parties may be required. The court would thereafter proceed for preparation of final decree. In Phoolchand, this Court has stated the legal position that CPC creates no impediment for even more than one preliminary decree if after passing of the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree. The court has always power to revise the preliminary decree or pass another preliminary decree if the situation in the changed circumstances so demand. A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should be settled once for all in that suit alone and no other proceedings. 20. Section 97 CPC that provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree does not create any hindrance or obstruction in the power of the court to modify, amend or alter the preliminary decree or pass another preliminary decree if the changed circumstances so require.

16 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. The view of the High Court is against law and the decisions of this Court in Phoolchand and S.Sai Reddy. (emphasis supplied) 14. In the present case, concededly, there is no changed or supervening circumstance, after the preliminary decree dated was passed in O.S.No.26/2010. The sine-qua-non, as pointed out in the cases of GANDURI KOTESHWARAMMA and PREMA (supra) does not exist. Thus, there is no scope for variation of shares of the parties to the suit, as determined in the preliminary decree passed on Hence, I.A.No.3 being not maintainable, ought to have been rejected by the Trial Judge. Instead, the order passed, impugned in this petition, being perverse and bad in law, is liable to be quashed.

17 17 In the result, petition is allowed and the impugned order is set aside. I.A.No.3 filed in F.D.P.No.6/2011, on the file of Civil Judge (Sr.Dn.) and JMFC, Virajpet, being not maintainable, is dismissed with costs, quantified at `20,000/-. Sd/- JUDGE sac*