AP High Court Modifies Preliminary Decree In Partition Suit, Grants Daughter Equal Share Under Amended Hindu Succession Act

The Andhra Pradesh High Court has held that a daughter has equal share in the co-parcenary property as per amended Section 6 Hindu Succession Act and a preliminary decree in a partition suit can be modified to grant such right so long as final decree proceedings are pending and partition has not taken place by metes and bounds. For context, Section 6 post the 2005 amendment to the Act, the daughter has a right in the coparcenary property of her father to succeed like a son, subject to the conditions and limitations as specified in the statutory provisions. The dispute in the present case was regarding the applicability of law and the maintainability of the application by subsequent purchaser and the modification of the appellate preliminary decree. The respondents conteded that as the father had died prior to 1956, the substituted Section 6 post the amendment in 2005 would not be applicable. A division bench of Justice Ravi Nath Tilhari and Justice Balaji Medamalli however observed that the daughter's entitlement in the father's property had already been determined even prior to the amendment of section 6 of the Hindu Succession Act, 1956. It further said that the law laid down in Vineeta Sharma v. Rakesh Sharma (2020) is that the daughter is entitled in the coparcenary property in equal shares with the son (her brother). Thus the date of death of the father is not relevant. The daughter might have born prior to the amendment but the daughter must have been alive on 09.09.2005 which was the case herein, noting that all ingredients of Section 6 were met. The Court underpinned that there is no prohibition in law against passing more than one preliminary decree in a partition suit, and if there is a change in law or circumstances affecting the shares of parties after passing of the preliminary decree, the Court can amend the shares before passing of the final decree. The Court further observed that a partition is not complete until the final decree is passed and the properties are divided by metes and bounds, and therefore the Court retains jurisdiction to determine and rework the rights of the parties till such stage.Referring to Vineeta Sharma judgment the Court held:"We are of the further view that in a partition suit if the proceedings are pending at the stage of preparation of the final decree, and since after passing of the preliminary decree, there are some changes factual or legal, substitution of Section 6 of the Hindu Succession Act or/and the death of plaintiff No.1 (mother), effecting the change in the shares of the parties, such change can also be given effect to by the learned trial Court in the proceedings pending for preparation of final decree or even if the appeal is pending against the final decree in that appeal as well and any change or modification in the original preliminary decree would not be necessarily required. Such change in the position factual or the legal can be taken due care of by the trial Court or the appellate Court as the case may be, before which the final decree proceedings are pending either at the initial stage or at the appellate stage. We are of the said view for what has been held by the Hon'ble Apex Court in Vineeta Sharma (supra).”BackgroundThe case arose out of a suit for partition filed in 1988 by the widow and daughter, wherein the trial Court granted a share to the widow but denied any share to the daughter. Aggrieved, the plaintiffs (widow and daughter) filed an appeal, while the defendants filed a separate appeal. The High Court partly allowed the appeal filed by the plaintiffs and modified the decree by granting 1/6th share each to the widow, daughter and son in the half share of the property, while dismissing the appeal filed by the defendants, and the said preliminary decree attained finality after the Special Leave Petition, review petition and curative petition filed by the defendants were dismissed by the Supreme Court. During the pendency of final decree proceedings initiated at the instance of the defendants, certain subsequent purchasers from the daughter filed an application before the trial Court seeking modification of the preliminary decree to enhance the daughter's share. The trial Court allowed the application, but it was set aside by the High Court for lack of jurisdiction and the SLP before Supreme Court was dismissed, after which the subsequent purchasers and the daughter's legal representatives filed the present applications before the High Court.Allowing the applications, the court directed that the preliminary decree dated 26.09.2003 shall be modified to the extent of declaring and allotting ½ share to Busappa (son) in the ½ share of the father Vale Mareppa (i.e., 1/4) and to the extent of another ½ share to Mandlem Veeramma @ Eramma (daughter) in the ½ share of the father Vale Mareppa (i.e., 1/4) in the coparcenary suit property. The court directed that the Trial Court shall proceed as per the modified preliminary decree and shall...

AP High Court Modifies Preliminary Decree In Partition Suit, Grants Daughter Equal Share Under Amended Hindu Succession Act

Ritika Verma

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