Full Text
HIGH COURT OF DELHI
I.A. No.7915/2011 (by defendant No.2 u/O VII R 11
CPC) and I.A. No.7857/2011 (by defendant No.4 u/O
VII R 11 CPC) in CS(OS) No.663/2011
KRISHNA GUPTA AND ANR. ..... Plaintiffs
Through: Mr. Sudhanshu Batra, Sr. Advocate with Mr. S.K. Chaudhary and Mr. H.D. Talwani, Advocates
Through: Mr. D.S. Narula and Mr. Amit Singh Chadha, Sr. Advocates with Mr. Angad Singh
Narula, Advocate for D-2.
Mr. Mohit Jolly, Advocate for D-3.
Ms. Manmeet Arora, Advocate with Ms. Liza M.
Baruah, Advocate for D-4.
JUDGMENT
1. The defendant No.2 and defendant No.4 have filed these applications, under Order VII Rule 11 CPC praying inter alia that the suit for partition of the HUF assets, for possession, rendition of accounts, permanent and mandatory injunction etc., instituted by the plaintiffs be rejected as being barred by law, barred by limitation and 2013:DHC:690 for the reason that the plaintiffs not being in actual/constructive or symbolic possession of any of the suit premises, they are liable to pay ad valorem court fees on the valuation of their shares in the suit premises for the relief of partition and the plaint has been insufficiently stamped by them by paying fixed court fees for the said relief.
2. The factual matrix of the case is as follows. Plaintiffs No.1 and 2 and defendant No.3(daughters) and defendant No.2(son) are siblings and children of late Shri Rajinder Nath. As per the plaintiffs, the defendant No.1 is an HUF company with defendant No.2 as its present Karta. Defendant No.4 is another HUF with Shri Ashok Nath (son of Sh. Ram Chander Nath and nephew of late Shri Rajinder Nath) as its Karta. As per the plaintiffs, the defendant No.4/HUF has common undivided joint family businesses and movable and immovable assets alongwith defendant No.1/HUF and both the said HUFs are engaged in joint family businesses with joint undivided common assets.
3. The case set up by the plaintiffs is that Shri Sham Nath had three sons, including Sh. Rajinder Nath, predecessor-in-interest of the plaintiffs and the defendants No.2 and 3 and he alongwith his sons were engaged in ancestral joint family business established in the early part of the nineteenth century under the firm name, M/s Faqir Chand Raghu Nath Dass and various other trade names. It is averred in the plaint that the said joint family business owned various ancestral movable and immovable assets that were acquired over a period of time in the name of the firm or Benami in the names of various family members. The aforesaid joint family businesses and assets were allegedly partitioned under an Award dated 26.10.1978 made by the Sole Arbitrator, Shri Rameshwar Nath (son-in-law of Shri Sham Nath). Plaintiffs claim that under the Award, the Sole Arbitrator had allotted specific assets to the share of Shri Surinder Nath, one of the sons of Shri Sham Nath, and the remaining assets were allotted in equal share jointly to the other two sons and their branch of HUF, i.e., Shri Rajinder Nath and Shri Ram Chander Nath and that the undivided businesses and assets allocated to the two HUFs jointly remained undivided under the said Award. The aforesaid Award was made rule of the court by the High Court in a suit registered as CS(OS) 427- A/1979, which was finally decreed on 21.08.2006. The said decree was challenged in an appeal filed by the legal heirs of late Shri Surinder Nath and is stated to be pending adjudication.
4. The plaintiffs have laid the foundation of the present suit on the provisions of the substituted Section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as ‗the 1956 Act’) as amended in the year 2005, which came into force on 09.09.2005(hereinafter referred to as `the 2005 Act‘). The plaintiffs claim that the amended Section 6 of the Act provides that the daughter of a coparcener in the joint Hindu family governed by Mitakshara law, shall by birth, become coparcener in her own right in the same manner as a son and, therefore, they alongwith their sister, defendant No.3 being the daughters of late Shri Rajinder Nath, a coparcener of the HUF, became coparceners therein by birth in their own right in the same manner as defendant No.2, their brother and hence, they are entitled to seek partition of the two HUF branches of Shri Rajinder Nath and Shri Ram Chander Nath (defendants No.1 and 4) as the said HUFs had continued with joint family business with undivided common HUF assets that were allocated to them in equal share under the Award dated 26.10.1978.
5. It is further averred in the plaint that Shri Rajinder Nath had died intestate on 24.08.1981, leaving behind his widow, Smt. Kamla Devi, both the plaintiffs and the defendants No.2 and 3 as his legal heirs and therefore, all the five legal heirs had inherited 1/5th share each in the individual assets of Shri Rajinder Nath and further, they had inherited 1/5th share each in the assets of defendant No.1, Rajinder Nath and Co. HUF to the extent of his 1/5th share. Subsequently, Smt. Kamla Devi expired on 14.12.2009 and the plaintiffs claim that upon her demise, all her individual assets as also her 1/25th share in the assets of defendant No.1/HUF had also devolved equally on them and the defendants 2 and 3 by succession. In other words, both the plaintiffs claim entitlement to 1/4th share each in the assets of the defendant No.1/HUF in their own right as coparceners by birth and 1/4th share each in the individual assets left by their parents. The plaintiffs further claim that as the businesses and assets of the defendant No.1/HUF and the defendant No.4/HUF have continued to remain joint and undivided, no further partition having taken place in respect of the said joint family and its assets after making of the Award dated 26.10.1978, they have a right to the extent of 1/8th share each in the total joint businesses and assets of both the HUFs.
6. As mentioned earlier, the present applications have been filed by the defendants No.2 and 4 stating inter alia that the suit for partition instituted by the plaintiffs, is liable to be rejected under the provisions of Order VII Rule 11 CPC. The defendant No.2 claims that the suit is liable to be rejected on three counts, firstly because Section 6 of the 2005 Act, does not have application to a case where partition had opened prior to promulgation of the amended Section 6, secondly, the plaint has been insufficiently stamped for the relief of partition as the plaintiffs are not in actual, constructive or symbolic possession of any of the suit properties and lastly, because the suit is barred by limitation. The defendant No.4/HUF has stated that apart from the aforesaid common objections, the plaint ought to be rejected for the additional reasons that it does not disclose any cause of action against the defendant No.4 and further, that the suit is bad for misjoinder of parties as no suit for partition is maintainable against the defendant No.4/HUF.
7. While the learned counsels have been heard on both the applications in respect of the common grounds taken by the defendant No.2 & defendant No.4/HUF, as noted above, counsel for the defendant No.4/HUF has reserved her right to address arguments on the other two grounds raised for seeking rejection of the plaint as per I.A. No.7857/2011, by submitting that in the event the Court decides to turn down the common pleas raised by the defendants No.2 and 4 for seeking rejection of the plaint, then she may be permitted to address arguments on the remaining two grounds taken in the application with regard to non-disclosure of cause of action against the defendant No.4/HUF and misjoinder of parties.
8. Mr.Amit Chadha, Sr. Advocate appearing for the defendant No.2 had submitted that his client has averred in his written statement that Shri Rajinder Nath, the predecessor-in-interest of the plaintiffs and the defendants No.2 and 3 had executed a will dated 17.08.1981 during his lifetime, whereunder he had excluded all his three daughters including the plaintiffs from inheritance and therefore, none of the assets held by him or his HUF would pass on to them. He stated that as the aforesaid will has remained unchallenged by the plaintiffs ever since 24.08.1981, the date of demise of Shri Rajinder Nath, they cannot claim any right, title or interest in his assets or in the joint family business or the ancestral movable or immovable assets allegedly acquired by the defendant No.2 in his individual capacity.
9. The maintainability of the present suit has been questioned on the ground that it is ill-founded as the amended Section 6 of the 2005 Act does not operate retrospectively, but is prospective in nature. Mr.Chadha contended that the said provision applies only to coparcenary property of a male Hindu holder, who expired after 09.09.2005, the date when the amended provision came into force and since the predecessor-in-interest of the parties, Shri Rajinder Nath, had expired on 24.08.1981, a notional partition of the HUF had taken place on his demise and therefore, the plaintiffs cannot claim the benefit of Section 6 of the 2005 Act, for seeking devolution of any interest in the coparcenary property. He urged that when sub-section (1) and sub-section (3) of Section 6 of the Act are read conjointly, then it becomes clear that a daughter can be treated as a coparcener only on the condition that her father was a surviving coparcener when the amended provision came into force. In the present case, Sh.Rajinder Nath having expired on 24.8.1981, upon his death, a national partition of the HUF took place and on the date when the amendment to Section 6 took place, the plaintiffs were not the daughters of a male Hindu coparcener, but were sisters. Hence, the suit is claimed by barred by limitation. In support of his submission that the law is presumed to be prospective in nature unless and until the legislature intends it to be retrospective, learned counsel for the defendant No.2 has relied upon the following decisions:-
(i) Eramma vs. Veerupana [AIR 1966 SC 1879]
(ii) Mukesh (Smt.) vs. Bharat Singh [149(2008) DLT 114]
(iii) Smt. Bagirathi vs. Manivanan [AIR 2008 Madras250]
(iv) G. Sekar vs. Geetha [AIR 2009 SC 2649]
10. It was further canvassed by the learned Senior Advocate appearing for the defendant No.2 that assuming without admitting that Shri Rajinder Nath has expired intestate as claimed by the plaintiffs, it cannot be disputed that the succession had opened only upon his demise and in the event of his intestate demise, his 1/3rd share would have devolved to the extent of 1/5th share upon each of the legal heirs under Section 6 of the 1956 Act. To substantiate the said submission, reliance was placed on the following decisions:-
(i) Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum and Ors. [(1978) 3 SCC 383]
(ii) Anar Devi and Ors. vs. Parmeshwari Devi & Ors. [(2006) 8 SCC
656]
11. The second ground urged by the counsels for the defendants No.2 and 4 for seeking rejection of the plaint is that the same has been written on insufficiently stamped papers. It was submitted that the plaintiffs have been married for over forty years and they have been residing in their respective matrimonial homes and have not been in possession of any of the suit premises, nor are they in constructive possession/control/management of any of the suit properties. Rather, it was contended that ouster has been admitted by the plaintiffs themselves in the plaint and therefore, ad valorem court fee is payable by them on the plaint at ₹100 crores as mentioned in para 33 of the plaint, under Section 7(iv)(b) of the Court Fees Act, 1870 and that Article 17(vi) of Schedule II does not have any application to the facts of the present case.
12. The aforesaid submission was sought to be elaborated by the learned counsel for the defendant No.2, who stated that partition takes place in two steps; the first step is of severance of status and the second step is of severance of property and Article 17(vi) of Schedule II would apply only in circumstances where a person is already in enjoyment of the joint property but seeks a change in the mode of enjoyment. He contended that since the plaintiffs are not seeking a change in the mode of enjoyment of the properties, but are seeking to enforce their rights in the joint family properties, they cannot be governed by Article 17(vi) of Schedule II of the Court Fees Act, 1870. He urged that enjoyment of properties has to be examined on the date of institution of the suit and the said enjoyment has to be as coowners of the properties, but as per the averments that have been made by the plaintiffs in paras 17, 18, 21, 22, 24, 28, 30, 32 and prayer clause (iv) of the plaint, they cannot claim to raise a presumption in law of being co-owners. Besides, the defendants have disputed their ownership in the light of their reply to the legal notice issued by the plaintiffs, and it was argued that for this reason too, the plaintiffs are disentitled from claiming to be members of a joint family.
13. To demonstrate that the plaintiffs have themselves admitted that they are not in constructive possession or otherwise of the suit properties and ouster has been duly admitted by them, reference was particularly made to the averments made in paras 19, 20, 21 and 22 of the plaint as well as the contents of the legal notice issued by the plaintiffs and enclosed with the list of documents at pages 50 and 60. The case law cited by the counsel for the defendants No.2 & 4 on this point is Sudhir Joshi vs. Shanta Joshi reported as 113 (2004) DLT 254 and Harjit Kaur vs. Jagdeep Singh reported as 116 (2005) DLT
392.
14. In opposition to the present applications, Mr. Sudhanshu Batra, Senior Advocate appearing for the plaintiffs denied that the plaintiffs‘ claim for partition based on the 2005 Act is misconceived or that they are not in possession, control or management of the suit properties and therefore, are liable to pay ad valorem court fees on the plaint. With respect to the amendment to the 1956 Act carried out in the year 2005, it was submitted that upon substitution of Section 6 of the Act w.e.f. 09.09.2005, the right of the daughters to become coparceners of a Hindu undivided family was given recognition and it is fallacious on the part of the defendants to contend that the provisions of subsection (1) read with sub-section (3) of Section 6 of the Act prescribe that a daughter can be considered as a coparcener only if her father was a surviving coparcener at the time the amended provision came into play and that the succession, which had opened prior to the amended Act coming into force, cannot be reopened or that any such attempt would result in giving retrospective effect to Section 6 of the 2005 Act.
15. Learned counsel for the plaintiffs denied that any of the decisions relied upon by the other side are applicable to the facts of the present case. Instead, he referred to the following judgments on the interpretation of Section 6 of the 2005 Act:-
(i) Pravat Chandra Patnaik & Ors vs. Sarat Chandra Patnaik & Anr.
(ii) Prema vs. Nanje Gowda & Ors. [(2011) 6 SCC 462]
(iii) Ganduri Koteshwaramma & Anr. vs. Chakiri Yanadi & Anr.
(iv) Manoj Jain vs. Smt. Krishna Jain & Ors. in CS(OS) 2413/2007
16. In response to the arguments of the other side that sub-section (1) has to be read conjointly with sub-section (3) of the amended Section 6 of the Act, it was submitted on behalf of the plaintiffs that a bare perusal of sub-section (3) of Section 6 would reveal that the same would come into force only upon the death of ―a Hindu‖ upon commencement of the amended Act, i.e., after 09.09.2005 and that all the other provisions of the substituted Section 6 would come into play on the date of the death of a Hindu, whether it occurred before or after the amendment. He further stated that after the amendment to Section 6, the legislature has done away with the concept of survivorship by clarifying the said position in sub-section (3) and since the decision to do away with the concept of survivorship could not be retrospective in nature, sub-section (3) specifically provides that it would be attracted only upon the death of ―a Hindu‖ after commencement of the Act.
17. Coming to the second objection taken by the defendants No.2 & 4 with regard to constructive possession of co-sharers and deficiency in the court fees, learned counsel for the plaintiffs had submitted that Section 7(iv)(b) read with Article 17(vi) of Schedule II of the Court Fees Act, 1870 provides for payment of fixed court fees in suits for partition of joint family properties as affixed by the plaintiffs and in support of the said submission, he placed reliance on following decisions:-
(i) Jagdish Pershad & Ors. vs. Jyoti Pershad & Ors. [ILR 1975
(ii) Neelavathi & Ors. vs. N. Natrajan & Ors. [AIR 1980 SC 691]
(iii) Jagannath Amin vs. Seetharama (Dead) by LRs & Ors. [(2007)
(iv) Saroj Salkan vs. Cap Sanjeev Singh & Ors. [155 (2008) DLT
300]
(v) Raj Ahuja vs. Maj General Satish Mediratta (Retd) & Anr. [2012
18. Learned counsel for the plaintiffs further stated that neither of the two judgments of this Court as relied upon by the defendants to urge that the plaintiffs were not in constructive possession of the suit properties, are applicable to the facts of the present case as unlike the fact situation in those cases, in the present case, there was no exclusion of the plaintiffs. He asserted that the averments contained in the plaint cannot be understood to mean that the plaintiffs are not in possession and in fact, the decisions that have been cited by the counsel for the defendants No.2 & 4, clarify the position that for claiming to be in constructive possession, the plaintiffs need not be in actual physical possession of the entire or any part of the joint assets. It was therefore denied that the suit is barred by limitation as contended by the other side. In support of the said submission, the following decisions were relied upon:-
(i) M. Arthur Paul Ratna Raju vs. Gudese Garaline
(i) Md. Mohammad Ali (Dead) by LRs vs. Jagdish
(ii) Layak Ram vs. Dharamwati & Ors. [AIR 2010
(iii) Kaka Singh vs. Swaran Singh and Anr. in RSA
19. As regards the objection taken by the defendants No.2 and 4 that the plaintiffs, having valued their share in the movable and immovable assets of the joint Hindu family properties at ₹100 crores, are liable to pay ad valorem court fees on the said valuation, learned counsel for the plaintiffs had submitted that since it is the case of the plaintiffs that they are coparceners and co-sharers of the movable and immovable properties and in joint and constructive possession of the assets, they are liable to pay only fixed court fees for the relief of partition. He sought to explain that reference of ₹100 crores as made in the plaint to be in the context of valuation of the suit for the purpose of jurisdiction for seeking the relief of partition and not for the relief of possession. He pointed out that a similar view had been taken by a Division Bench of this Court in the case of Saroj Salkan (supra) and by a Single Judge of this Court in the case of Raj Ahuja (supra), where the fixed court fees paid by the plaintiffs therein under Article 17(vi) of Schedule II of the Court Fees Act, was duly accepted.
20. Learned counsel for the plaintiffs also refuted the contention of the other side that the plaintiffs are not in enjoyment of any portion of the joint family assets and therefore, they cannot seek separate enjoyment of their specific share in lieu of their enjoyment of undivided share in the said assets. He submitted that in the present suit, the plaintiffs are seeking the relief of allocation of specific assets separately in lieu of their undivided shares in the joint family properties and as the conversion of the plaintiffs‘ undivided share in the joint family properties into their separate shares cannot be valued with precision in monetary terms at this stage, they are entitled to pay fixed court fees and not ad valorem court fees on the plaint.
21. In rebuttal to the arguments canvassed by the counsel for the plaintiffs on the applicability of Section 6 of the 2005 Act to the plaintiffs, Mr.Amit Chadha, Senior Advocate appearing for the defendant No.2 stated that the decision relied upon by the counsel for the plaintiffs in the case of Manoj Jain (supra) is per incuriam as the learned Single Judge had not considered the earlier decisions of the Supreme Court in the cases of Eramma (supra) and Daya Singh vs. Dhan Kaur reported as (1974) 1 SCC 700 as also the decision of a co-ordinate bench of this Court in the case of Mukesh (Smt.) (supra). He also contended that the said judgment had misinterpreted the decision of the Supreme Court in the case of G. Sekar (supra). Lastly, he urged that in the event, this Court is not inclined to accept his submission as to the manner in which Section 6 of the Act of 2005 ought to be interpreted, then in view of a conflict of opinion between Mukesh(Smt.)(supra) & Manoj Jain(supra), the said issue may be referred to a larger Bench for consideration.
22. The Court has perused the averments made by the plaintiffs in the plaint, carefully considered the submissions made by the counsels for the parties and examined the decisions relied upon by them.
23. The defendants have raised threefold grounds for seeking rejection of the plaint. The first ground is premised on the interpretation of Section 6 of the 2005 Act. The cornerstone of the argument of learned counsels for the defendants No.2 and 4 is that a conjoint reading of sub-section (1) and sub-section (3) of Section 6 of the 2005 Act clearly reflects that a daughter can be considered as a coparcener only if her father was a surviving coparcener at the time when the amended provision came into force and that any other interpretation would result in the amendment being read as retrospective.
24. There is no quarrel with the proposition urged by learned counsel for the defendants No.2 & 4 that the law is presumed to be prospective in nature unless and until the legislature intends it to be retrospective. The aforesaid argument has however to be tested on the anvil of the provisions of the amended Section 6 of the Act so as to examine as to the manner in which it would apply. Section 6 of the 2005 Act is extracted herein below for ready reference:- "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-section 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-section (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 a son; (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. Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (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-section 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. Explanation.--For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court."
25. The avowed object of substituting Section 6 of the 1956 Act with the one incorporated in the 2005 Act, was to ensure that w.e.f. 09.09.2005, female members of a joint Hindu family are treated at par with male members. The amended Section 6 of the 2005 Act, is a beneficial legislation directed towards elimination of the discrimination contained in Section 6 of the 1956 Act, by ensuring that equal rights are granted to daughters in the Hindu Mitakshara coparcenary in their own right by birth, in the same manner as granted to the sons. The said provision is an embodiment of a laudable legislative intent to treat daughters at par with sons in joint Hindu families governed by the Mitakshara law.
26. As would be apparent from a perusal of the statement of objects and reasons for amending Section 6 of the Act, by doing so, the legislature has recognized the fact that the law, as it stood prior to the amendment, had excluded daughters from participating in the coparcenary ownership, which not only contributed to their discrimination on the ground of gender, but also led to oppression and negation of their fundamental right of equality as guaranteed under the Constitution. With the object of removing the said discrimination, Section 6 of the 2005 Act came to be implemented on the Statute book. Thus, w.e.f. 09.09.2005, a daughter is also entitled to a share in the ancestral property and she is to be treated as a coparcener by birth just as a son in a joint Hindu family governed by Mitakshara law.
27. From amongst all the decisions that have been referred to by the counsels on both sides, the direct decision of the Supreme Court on the current legal position of inheritance by female members of joint Hindu family with specific reference to Section 6 brought into the 1956 Act by the 2005 Act, is found to be in the case of Ganduri Koteshwaramma(supra). In the aforesaid case, the question raised was as to whether pending a final decree of partition, a preliminary decree passed by the Trial Court in the said case on 19.3.1999 and amended on 27.9.2003 had deprived the appellants (being daughters of one Chakiri Venkata Swamy) of the benefits of the 2005 Amended Act.
28. To understand the manner in which the Supreme Court has interpreted Section 6 of the 2005 Act, it is necessary to give a brief backdrop of the case. In the aforesaid case, the appellants and the respondents were siblings being daughters and sons of Chakiri Venkata Swamy. The first respondent(the plaintiff) had filed a suit for partition in the court of the Senior Civil Judge impleading his father(the first defendant), his brother(the second defendant) and his two sisters(third and fourth defendant respectively). The first respondent claimed that the properties mentioned in Schedule A, C & D were coparcenary properties and he, his father and brother had onethird share each therein. As regards the Schedule property B belonging to his mother, the first respondent had claimed that all the parties had one-fifth equal share therein. The father of the parties expired in the year 1993, during the pendency of the suit. Vide judgment and a preliminary decree dated 19.3.1999, the Trial Court declared that the first respondent(the plaintiff) was entitled to onethird share in Schedule A, C and D properties and further entitled to one-fourth share in the one-third share left by the father. The first respondent was also held entitled to one-fifth share in the Schedule B property. The aforesaid decree was amended on 27.9.2003, wherein it was declared that the first respondent was entitled to equal share along with the second, third and fourth defendants in one-fifth share left by the father in the Schedule B property. Thereafter, the first respondent(plaintiff) submitted applications before the Trial Court for passing of a final decree and for determination of mense profits.
29. Before passing of the final decree in the aforesaid case, the Hindu Succession (Amendment) Act, 2005 came into force on 9.9.2005 whereunder Section 6 of the Hindu Succession Act, 1956 was substituted. Based on the aforesaid amendment, the appellants (third and fourth defendants in the aforesaid case) filed an application for passing a preliminary decree in their favour for partition of the Schedule A, C & D properties into four equal shares and for allotment of one share to each of them by metes and bounds and for delivery of possession. The aforesaid application filed by the appellants was allowed vide order dated 15.6.2009, and the Trial Court held that they were entitled for re-allotment of shares in the preliminary decree.
30. The first respondent (plaintiff) challenged the aforesaid order in appeal before the Andhra Pradesh High Court. The Single Judge allowed the appeal and set aside the order of the Trial Court. Aggrieved by the aforesaid order, the appellants filed an appeal before the Supreme Court. The question as to whether the benefits of the Hindu Succession (Amendment) Act, 2005 were available to the appellants, was answered by the Supreme Court in the following manner:- ―9. The 1956 Act is an Act to codify the law relating to intestate succession among Hindus. This Act has brought about important changes in the law of succession but without affecting the special rights of the members of a Mitakshara Coparcenary. Parliament felt that non-inclusion of daughters in the Mitakshara Coparcenary property was causing discrimination to them and, accordingly, decided to bring in necessary changes in the law. The Statement of Objects and Reasons of the 2005 Amendment Act, inter alia, reads as under: ―2....The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. Having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property.‖
10. With the above object in mind, Parliament substituted the existing Section 6 of the 1956 Act by a new provision vide the 2005 Amendment Act. xxxxxx
11. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 9-9-2005. The legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a copercener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from 9-9-2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.
12. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before 20-12-2004; and
(ii) where testamentary disposition of property has been made before 20-12-2004. Sub- section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been effected before 20-12-
2004. For the purposes of new Section 6 it is explained that `partition' means any partition made by execution of a deed of partition duly registered under the Registration Act 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for determining the non- applicability of the section, what is relevant is to find out whether the partition has been effected before 20-12-2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on 19-3-1999 and amended on 27-9-2003 deprives the appellants of the benefits of the 2005 Amendment Act although final decree for partition has not yet been passed.
13. The legal position is settled that partition of a Joint Hindu family can be effected by various modes, inter-alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the court. In the present case, admittedly, the partition has not been effected before 20-12-2004 either by a registered instrument of partition or by a decree of the court. The only stage that has reached in the suit for partition filed by the Respondent 1 is the determination of shares vide preliminary decree dated 19-3-1999 which came to be amended on 27-9-2003 and the receipt of the report of the Commissioner.
14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation. xxxx
21. It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree. The view of the High Court is against law and the decisions of this Court in Phoolchand and S.Sai Reddy.‖ (emphasis added)
31. While deciding the aforesaid case, the Supreme Court had sought to fortify its view by relying on a three-Judge Bench decision in the case of Phoolchand Vs. Gopal Lal reported as AIR 1967 SC 1470 and the case of S.Sai Reddy Vs.S.Narayana Reddy reported as (1991) 3 SCC 647.
32. The aforesaid decision of the Supreme Court has been followed by a co-ordinate Bench of this Court in a recent case of Manoj Jain(supra), while considering a review petition filed by the defendants No.2 & 4/review petitioners therein in respect of the judgment dated 31.7.2012 whereunder, a suit for partition filed by the plaintiff therein had been decreed and a preliminary decree was passed giving each of the parties to the suit(sons and daughters of late Sh.Lakhpat Rai Jain) 1/7th share in the suit property and other properties of the HUF. In the aforesaid judgment, the learned Single Judge had held that the daughters had an equal share in the coparcenary property in terms of the amended Section 6(1) of the 2005 Act. The review petitioners had filed a review petition on the ground that Section 6(1) of the 2005 Act operates prospectively and not retrospectively and since the father of the parties had expired on 29.12.1992, i.e., before passing of the 2005 Act, and succession having already opened on the date of his demise, his daughters(defendants No.5 & 6 in the suit) did not have a right in the coparcenary property and therefore, the amended Section 6(1) did not give them a legal right in the suit that had been instituted in the year 2007. While deciding the review petition, the learned Single Judge answered the question, as framed below:- ―5 The first aspect required to be squarely pronounced upon thus is that if succession opens on account of death of a coparcener prior to bringing in of Section 6(1) by Act 39 of 2005, would the daughters by virtue of subsequent bringing in of the aforesaid Section 6(1) by Act 39 of 2005, get a right to the coparcenary property, i.e. did rights finally crystallize on the death of coparcener on 29.12.1992 in this case when the provision of Section 6(1) giving right to the daughters did not exist in the statute book. Putting it differently do the daughters get a right to the HUF properties even if the succession opens on account of death of the coparcener prior to coming into force of Section 6(1) by Act 39 of 2005.‖
33. After formulating the question to be answered, the learned Single Judge considered the decisions of the Supreme Court in the cases of Sheela Devi & Ors. Vs. Lal Chand & Anr. reported as (2006) 8 SCC 581 and G.Sekar Vs. Geetha & Ors. reported as (2009) 6 SCC 1999, to hold that that the legislature has made Section 6(1) of the 2005 Act prospective under certain fact situations and retrospective under other fact situations, i.e., where there is no registered partition deed or a decree of the Court. Furthermore, holding that the facts in the cases of Sheela Devi(supra) and G.Sekar(supra) were not applicable to the facts of the case under consideration and based on the legal position that where the ratio of two judgments are different, then no conflict would arise, the learned Single Judge opined that the High Court was bound to follow the recent judgment of the Supreme Court in the case of Ganduri Koteshwaramma(supra) as it held the field. As a result, the review petition was dismissed.
34. Another relevant decision of the Supreme Court that has been relied upon by learned counsel for the plaintiffs is in the case of Prema(supra) where the appellant therein who had failed in the challenge laid by her to a preliminary decree passed in a suit for partition filed by the respondent No.1 therein, could seek enhancement of her share in the joint family property in the final decree proceedings in terms of the provisions of Section 6-A inserted in the Hindu Succession Act, 1956 by the Hindu Succession(Karnataka Amendment) Act, 1990, that was notified on 30.7.1994. After discussing the aims and objects that weighed with the Karnataka legislature for amending the Hindu Succession Act, 1990 by inserting Section 6-A to 6-C, which was for ensuring that unmarried daughter got an equal share in coparcenary property, the Supreme Court adverted to the decision of a Single Judge of the Andhra Pradesh High Court in the case of S.Narayana Reddy Vs. S.Sai Reddy reported as AIR 1990 AP 263[wherein reference was made to an earlier decision of the Supreme Court in the case of Phool Chand(supra)] and had observed as below: ―13. The learned Single Judge then referred to the judgment of this Court in Phoolchand v. Gopal Lal and observed: "19. Since the parties have invoked the jurisdiction of the civil court to decide their rights in a partition suit, their rights can be considered at any stage till the passing of the final decree. Till the final decree as stated above is passed in a partition suit, it is well settled that the suit is said to be pending, till the final decree is signed by the Judge after engrossing the same on the stamps. In view of the insertion of S. 29-A in the Hindu Succession Act by Act (13 of 1986) the statute conferred a right on the daughters and they become coparceners in their own right in the same manner as sons and have the same rights in the coparcenary property. In this case, admittedly the daughters are already on record and, therefore, they are entitled to claim a right and request the Court to pass a final decree by taking into account the altered situation....
20. As pointed out by the Supreme Court in Phoolchand case, there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree particularly in partition suits where shares specified in the preliminary decree have to be adjusted so long as a final decree has not been passed in that suit. On facts in this case, a preliminary decree has been passed giving 1/3rd share to the plaintiff. The shares of the other persons also have to be ascertained and the rights of the unmarried daughters have been recognised in the preliminary decree. There is a statutory change by the introduction of Section 29-A of the Hindu Succession Act which came into force on 5- 9-1985 and the preliminary decree has been passed on 26.12.1973, but no final decree has been passed. The plaintiff himself filed an application for passing a final decree and the trial court is bound to implement the statutory rights conferred on the daughters and it ought to have allowed the petition in accordance with law." (emphasis supplied)
14. While dismissing the appeal preferred against the judgment of the High Court, this Court observed as under: "7...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 Section 29-A of the Act became applicable..... Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment.." (emphasis supplied)
15. In the present case, the preliminary decree was passed on 11.8.1992. The first appeal was dismissed on 20.3.1998 and the second appeal was dismissed on 1.10.1999 as barred by limitation. By the preliminary decree, shares of the parties were determined but the actual partition/division had not taken place. Therefore, the proceedings of the suit instituted by Respondent No.1 cannot be treated to have become final so far as the actual partition of the joint family properties is concerned and in view of the law laid down in Phoolchand v. Gopal Lal and S. Sai Reddy v. S. Narayana Reddy, it was open to the appellant to claim enhancement of her share in the joint family properties because she had not married till the enforcement of the Karnataka Act 23 of 1994. Section 6-A of the Karnataka Act 23 of 1994 is identical to Section 29A of the Andhra Pradesh Act. Therefore, there is no reason why ratio of the judgment in S. Sai Reddy v. S. Narayana Reddy should not be applied for deciding the appellant's claim for grant of share on par with male members of the joint family. In our considered view, the trial court and the learned Single Judge were clearly in error when they held that the appellant was not entitled to the benefit of the Karnataka Act 23 of 1994 because she had not filed an application for enforcing the right accruing to her under Section 6-A during the pendency of the first and the second appeals or that she had not challenged the preliminary decree by joining Defendants 1, 4 and 5 in filing the second appeal. xxx
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 23 of 1994, Section 6-A came into force on 30.7.1994, i.e. the date on which the amendment was published. As on that day, the final decree proceedings were pending. Therefore, the appellant had every right to seek enlargement of her share by pointing out that the discrimination practised 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.”
35. In the case of Pravat Chandra Patnaik(supra), cited by the plaintiffs, while discussing the issue of prospectivity of the 2005 Act in the context of the amended Section 6 and upon examining a preliminary decree that was passed by the Trial Court in a suit for partition filed by the respondent No.1 therein(plaintiff) against his brother(defendant No.1) and sisters(defendants No.4 & 5) and sons of defendant No.1(defendants No.2 & 3), the Orissa High Court was confronted with the argument that the 2005 Act was not applicable to the said case as the Trial Court had passed a preliminary decree in the year 2001 which preceded the date of promulgation of the amendment. The relevant paras of the said decision are extracted below:- ―5. Being aggrieved by the above, the defendant preferred this appeal. The learned counsel appearing for the appellants submitted that after amendment of the Hindu Succession Act, 1956 by the Hindu Succession (Amendment) Act, 2005 (39 of 2005), the shares allotted by the Learned Civil Judge are not in accordance with law because parties have not yet settled the partition in final decree proceeding. Thus partition has not been effected finally. The learned counsel appearing for the respondents submitted that the aforesaid Amendment Act is prospective one. Hence, it is not applicable to the present case as the Court below has passed preliminary decree in the year 2001 prior to the date of amendment. According to him, as per Section 6 of the Hindu Succession Act as amended by Act 39 of 2005, the daughters, who have born only after 2005 are to be treated as coparceners and not otherwise. The learned counsel for both parties have not raised any other points in this appeal. xxx
7. The above section was amended with an intention to remove the discrimination as contained in S.[6] of Hindu Succession Act, 1956 by giving equal rights to the daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 6 of the new Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women. The legislature with their wisdom for the benefit of the women and to give them equal status in the society, amended the Hindu Succession Act by giving better right to the women to protect themselves against the torture and harassment, if any. The (Amendment) Act, 2005 was enacted to remove the discrimination as contained in S.[6] of the Hindu Succession Act, 1956 by giving equal rights and liabilities to the daughters in the Hindu Mitakshara coparcenary property as the sons have. The said Act was come into force with effect from 9.9.2005 and the statutory provisions create new right. The provisions are not expressly made retrospectively by the legislature. Thus, the Act itself is very clear and there is no ambiguity in its provisions. The law is well settled that where the statutes meaning is clear and explicit, words cannot be interpolated. The words used in provisions are not bearing more than one meaning. The amended Act shall be read with the intention of the legislation to come to a reasonable conclusion. Thus, looking into the substance of the provisions and on conjoint reading of sub-sections (1) and (5) of S.[6] of the said Act are clear and one can come to a conclusion that the Act is prospective. It creates substantive right in favour of the daughter. The daughter got a right of coparcener from the date when the amended Act was come into force i.e. 9.9.2005. 8-9. Hence, the submission of the learned counsel appearing for the respondents that the daughters, who have born only after 2005, will be treated as coparceners is not accepted. If the provision of the Act is read with the intention of the legislation the irresistible conclusion is that S.[6] (as amended by Act 39 of
2005) rather gives a right to the daughter as coparcener, from the year 2005, whenever they may have born. They can claim for partition of the property which has not been partitioned earlier. But if the same was effected earlier i.e. prior to 20th December, 2004 the same should not be reopened. The daughters are entitled to a share each equal with the son as a coparcener. Admittedly, this appeal is directed against the Judgment and decree passed by the learned Civil Judge (Senior Division), Baripada in a suit for partition who has passed the preliminary decree. Since the appeal is a continuation of a suit, it cannot be said that said preliminary decree was made final and the preliminary decree can be vary if the appeal is allowed and this Court comes to a conclusion that partition was not effected finally. Thus, the amended Act is applicable to the present case. As per Order 20, Rule 18(2) of the Code of Civil Procedure by passing a preliminary decree only share of the parties are determined and the actual partition is effected as per the final decree.‖ (emphasis added)
36. To examine the submission of learned counsel for the defendants No.2 & 4 that the judgment in the case of Mukesh(Smt.) & Ors. Vs. Bharat Singh & Others reported as 149(2008) DLT 114 has laid down that the amended Section 6(1) & (3) is not retrospective, but prospective in nature, the facts of the said case are relevant. In the said case, the appellants therein had filed a suit for partition and injunction against their three brothers and a sister in respect of an agricultural land owned by their father, claiming 1/6th share in the suit land. In their defence, the brothers had stated that their father had expired on 10.6.1993 and as the succession to holding was governed by Section 50 of the Delhi Land Reforms Act, 1954, they alone were entitled to succeed to the holding as sons since all their sisters were married. In defence, the defendants also took a stand that on the demise of their father, the suit land had been mutated in their names and the said mutation entry had attained finality. The maintainability of the suit was challenged in view of the bar in Section 185 of the Delhi Land Reforms Act, 1954 and on the ground that the remedy available to the plaintiffs was before the revenue authorities. In their replication, the appellants had stated that since sub-section(2) to Section 4 of the 1956 Act had been deleted by the 2005 Act, succession to the holding of their father had to be discharged as per the amended Act.
37. In the aforesaid case, the focus of the learned Single Judge was on the amendments carried out in Section 4 of the 1956 Act and the effect thereof in a case, where succession had opened when the father of the parties had died in the year 1993 and the applicability of the law then prevalent, which was in favour of the sons. While examining Section 4 of the Hindu Succession Act, 1956 as originally enacted, which contained the non-obstante clause, with reference to Section 50 of the Delhi Land Reforms Act, 1954, that lays down the general order of succession from males, the learned Single Judge had observed that due to sub-section (2) to Section 4 of the 1956 Act, rule of succession under the said Act was subject to any law for the time being in force relating to agricultural holdings and the effect of deletion of the said sub-section (2) to Section 4 post amendment, would be that from the date when the amending Act was promulgated, succession would be as per the Hindu Succession Act, 1956. It was in the aforesaid context that the learned Single Judge had expressed a prima facie view that the 2005 Act could not be read retrospectively as the amending Act had not been given retrospective operation and he proceeded to hold that where successions had taken place prior to the promulgation of the 2005 Act, they could not be disturbed.
38. The facts of the present case are however on an entirely different footing and not predicated on an interpretation of Section 4 of the Hindu Succession Act, pre-amendment or post-amendment. Just because a passing reference was made in the aforesaid case to the legislative intent that could be derived from sub-section(3) of Section 6 of the 2005 Act, cannot be sufficient to treat the said judgment as the ratio of the said case for purposes of interpretation of Section 6 of the 2005 Act.
39. As for the contention of learned counsel for the defendants No.2 & 4 that while pronouncing the judgment in the case of Manoj Jain(supra), the learned Single Judge had failed to consider an earlier decision of the Supreme Court in the case of Eramma Vs. Veerupana reported as AIR 1966 SC 1879, it may be noted that in the said case, the Supreme Court was examining the language of Section 8 of the 1956 Act that deals with general rules of succession in the case of a male and it was in that context that it was held that the said provision was not retrospective in operation and where a male Hindu died before the Act came into force and where succession had opened before the said Act, Section 8 would hardly have any application. The aforesaid judgment having been rendered in a different field, non-consideration thereof would not have any bearing on the decision in the case of Manoj Jain(supra) as the proposition of law being considered in the two cases was entirely different.
40. Furthermore, reliance placed by the learned counsel for the defendants No.2 & 4 on the decisions in the case of Smt. Bagirathi(supra) and G. Sekar(supra) may not be of any avail as neither of the said judgments apply to the facts of the case in hand. In the case of G.Sekar(supra), the Supreme Court was examining the effect of the amendment in the 1956 Act by reason of the 2005 Act in so far as Section 23 therein had been omitted. Section 23 of the Hindu Succession Act curtails the rights of the daughters to obtain a decree for partition in respect of dwelling houses. In the said case, the Supreme Court was not examining a situation where daughters were claiming entitlement as coparceners by birth to Hindu undivided properties. Rather, the factual backdrop was that the properties in question were admittedly self-acquired properties of the deceased and upon his demise, disputes and differences had arisen between his legal heirs and his daughters had then instituted a suit for partition on the premise that he had expired intestate. The discussion of the Supreme Court therefore hinged on the question as to whether Section 23 as it stood was to be applicable on the date of institution of the suit. Therefore, it cannot be stated that the aforesaid decision has laid down the ratio in so far as interpretation of Section 6 of the 2005 Act is concerned.
41. Coming to the decision of a Division Bench of the Madras High Court in the case of Smt. Bagirathi(supra), it is pertinent to note that the said judgment that was delivered in the year 2008, is premised on the decisions of the Supreme Court in the cases of Eramma(supra) and Sheela Devi(supra), and as noted above, both the said decisions do not have any application to the facts of the present case. Furthermore, now that the Supreme Court has put to rest the debate with regard to the prospectivity/retrospectivity of the operation of Section 6 of the 2005 Act, in the case of Ganduri Koteshwaramma(supra) that was pronounced in the year 2011, which is subsequent to the aforesaid decision of the Madras High Court, nothing further is left to be said on this aspect.
42. Having catalogued the decisions referred to by both the sides on the aspect of applicability of Section 6 of the 2005 Act for maintaining a suit for partition by the plaintiffs herein and the retrospectivity/prospectivity of the said provision, what clearly emerges is that the only direct authority that has crystallized the proposition that has been raised for consideration in the present case is the one that has been rendered by the Supreme Court in the case of Ganduri Koteshwaramma(supra) and the decision in the case of Manoj Jain(supra) is in tune with the said decision. In view of the clear sweep of the decision of the Supreme in the above case, this court need not travel beyond it.
43. As noted above, in the case of Ganduri Koteshwaramma(supra), the Supreme Court has categorically held that a suit for partition is not disposed of by passing a preliminary decree and that it is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds and further, if in the interregnum, after passing of the preliminary decree and before the final decree is passed, events and supervening circumstances occur necessitating change in the shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation.
44. The plaintiffs in the present case are on a better footing, as the stage of passing of a preliminary decree has not even arrived and the suit is still at the nascent stage of conducting admission/denial of documents. In the light of the discussion of the Supreme Court in the case of Ganduri Koteshwaramma(supra), the argument of the learned counsel for the defendants No.2 & 4 that since the succession had opened upon the demise of the father of the parties on 24.8.1981, i.e., prior to the promulgation of the 2005 amendment, then Section 6 of the 2005 Act would not apply and on this ground alone, the suit is liable to be rejected, rings quite hollow. Keeping in mind the language used in the proviso to sub-section(1), in sub-section (3) and in the Explanation appended to sub-section (5) of Section 6 of the 2005 Act, it has to be held that in the absence of any partition undertaken by execution of a deed of partition duly registered under the Registration Act, 1908 or a partition effected by a decree of a court, or in the absence of any testamentary disposition of a property that has taken place before 20.12.2004, in respect of a Joint Hindu family governed by the Mitakshara law, as envisaged in the proviso to Section 6(1), the daughter of a coparcener shall, by birth become a coparcener in her own right in the same manner as the son and she shall have the same rights in the coparcenary property as she would have had, had she been a son. The concept of notional partition taking place on the date of death of a coparcener as canvassed by the counsels for the defendants No.2 & 4, was based on the interpretation of the preamended Section 6 of the 1956 Act, as elaborated by the Supreme Court in the case of Gurupad (supra) and Anar Devi (supra), but after promulgation of the 2005 Act, those judgments cannot have any application to the facts of the present case.
45. In such circumstances, the submission of the learned counsel for the defendants No.2 & 4 that the present suit is liable to be rejected at the outset on the ground that the same is barred by law and that Section 6 of the 2005 Act cannot be invoked by the plaintiffs to seek partition, is found to be untenable and is turned down as being devoid of merits. It is a different matter that after the suit is taken to trial, the defendants No.2 & 4 may be in a position to succeed on the merits of their defence as taken in their written statements, when all the pleas including the claim of the defendant No.2 that the father of the parties had executed a will, excluding all his daughters, including the plaintiffs and that their mother had not expired intestate, shall have to be proved and adjudicated upon. However, the plaintiffs cannot be non-suited on the said ground at this preliminary stage.
46. The court is also not inclined to accept the submission made by learned counsel for the defendants No.2 & 4 that the issue raised hereinabove, ought to be referred to a larger Bench for consideration, as it is of the opinion that the judgments in the cases of Manoj Jain(supra) & Mukesh(Smt.) (supra) operate in different fields and therefore, by following the ratio of the former judgment, which is only a reiteration of the law spelt out by the Supreme Court on the interpretation of Section 6 of the 2005 Act, no conflict of opinion shall arise that requires reference to a larger Bench for settling the issue.
47. Coming next to the second limb of the objection taken by the defendants No.2 & 4 which is with regard to the constructive possession of co-sharers and the deficiency in the court fees affixed on the plaint, it is trite that while deciding an application under Order VII Rule 11 of the CPC wherein rejection of plaint is prayed for, the court is required to confine itself to the averments made in the plaint and at that stage, it is not required to examine the stand that has been taken by the defendants in the written statement as the provisions of Order VII Rule 11 CPC are in the nature of demurrer. In this regard, reference may be made to a decision of the Supreme Court in the case of Saleem Bhai & Ors. Vs. State of Maharashtra reported as (2003) 1 SCC 557.
48. The amount of court fees that is required to be paid by the plaintiffs, for seeking the relief of partition of suit properties, has to be examined in the context of Section 7 of the Court Fees Act, 1870 which prescribes computation of fees payable in suits. The relevant extract of Section 7 is reproduced hereinbelow:-