LexGANDURI KOTESHWARAMMA & ANR. versus CHAKIRI YANADI & ANR.
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[2011] 12 S.C.R. 968
GANDURI KOTESHWARAMMA & ANR.
v.
CHAKIRI YANADI & ANR.
(Civil Appeal No. 8538 of 2011)
OCTOBER 12, 2011
[R.M. LODHA AND JAGDISH SINGH KHEHAR, JJ.]
Hindu Succession Act, 1956 - s. 6 (as amended by
Hindu Succession (Amendment) Act, 2005):
Devolution of interest in coparcenary property - Rights
and liabilities of the daughter- Held: Daughter of a copercener
becomes a coparcener by birth in her own rights and liabilities
in the same manner as the son - This is effective from
0 September 9, 2005 - Right accrued to a daughter in the
property is absolute, except where disposition or alienation
including any partition/testamentary disposition of property
has taken place before December 2fJ, 2004, as provided in
the proviso to sub-section (1) of s. 6.
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Partition of coparcenary property - Suit for partition by
one of the son - Preliminary decree dated 19. 03. 1999,
amended on 27. 09. 2003 - Before passing of the final decree,
s. 6 was amended in 2005 whereby daughter was allotted the
same share as was allotted to a son - Application by
F daughters seeking preliminary decree in their favour for
partition of schedule property, allotting them one share each,
allowed by the trial court - Said order set aside by High Court
- On appeal, held: Section 6 (as amended) is not applicable
to partition effected before 20.12.2004 - On facts, in the suit
G for partition only the shares were determined by preliminary
decree dated 19.03.1999 which was amended on 27.09.2003
- Commissioner had submitted the report as regards the
division of the property and final decree for partition was yet
to be passed - Or. XX r. 18 C. P. C. creates no impediment
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968
GANDURI KOTESHWARAMMA & ANR. v. CHAKIRI
969
YANADI & ANR.
for more than one preliminary decree if after passing of the
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preliminary decree events have taken place necessitating the
readjustment of shares as declared in the preliminary decree
- Once a preliminary decree has been passed, it is capable
of modification even if no appeal has been preferred from
such preliminary decree - Thus, order passed by the High
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Court is set aside and that of the trial court is restored -Code
of Civil Procedure, 1908 - Or. XX r. 18.
Respondent No. 1 filed a suit for partition in respect ,
of a coparcenary property impleading his father, brother C
and two sisters (appellants). The trial court passed a
preliminary decree ·dated March 19, 1999 and the same
was amended on September 27, 2003 declaring the share
of respondent No. 1. Thereafter, respondent No. 1 filed
applications before the trial court for passing the final
decree. Before passing of the final decree, Section 6 of D
the Hindu Succession Act 1956 was amended by the
Hindu Succession (Amendment) Act, 2005. The appellants
filed an application for passing the preliminary decree in
their favour for partition of schedule property, allotting
them one share each by metes and bounds and for
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delivery of possession. The trial court allowed the same
holding that the appellants were entitled for re-allotment ·
of share in the preliminary decree. Respondent No. 1
then filed an appeal and the same was allowed. Therefore,
the appellants filed the instant appeal.
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Allowing the appeal, the Court
HELD: 1.1 The new Section 6 as substituted by the
Hindu Succession (Amendment) Act, 2005 provides for
parity of rights in the coparcenary property among male
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and female members of a joi{lt Hindu family on and from
September 9, 2005. The Legislature has now conferred
substantive right in favour of the daughters. According
to the new Section 6, the daughter of a copercener
becomes a coparcener by birth in her own riahts and
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970
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A liabilities in the same m·anner as the son. The declaration
in Section 6 that the daughter of the coparcener shall
have same rights and liabilities in the coparcenary
property as she would have been a son is unambiguous
and unequivocal. Thus, on and from September 9, 2005,
B the daughter is entitled to a share in the ancestral
property and is a coparcener as if she had been a son.
[Para 14] [978-H; 979-A-B]
1.2 The right accrued to a daughter in the property
C of a joint Hindu family governed by the Mitakshara Law,
by virtue of the Hindu Succession (Amendment) Act,
2005 is absolute, except in the circumstances provided
in the proviso appended to sub-section (1) of Section 6.
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