LexPREMA versus NANJE GOWDA AND OTHERS
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[2011] 8 S.C.R. 55 PR EMA v. NANJE GOWDA AND OTHERS (Civil Appeal No. 2481 of 2005) MAY 10, 2011 [G.S. SINGHVI AND K.S. RADHAKRISHNAN, JJ.] Hindu Law: , A B Hindu Succession Act, 1956- s.6A - Hindu Succession c (Kamataka Amendment) Act, 1990 [Kamataka Act No.23 of 1994) - Preamble and ss.1 and 2 - Modification of preliminary decree in final decree proceedings - Scope - Joint family property - Respondent no. 1 filed partition suit - Preliminary decree passed by trial court whereby plaintiff- D respondent no. 1 and defendant no. 3 were held entitled to 21 7th share whereas defendant nos. 1, 4, 5 and defendant no. 6- daughter (appellant) were held entitled to 1128th share each - Preliminary decree confirmed by first appellate court and High Court - Respondent No. 1 instituted final decree E proceedings - Meanwhile the Kamataka legislature made a State amendment in the Hindu Succession Act vide Karnataka Act No.23 of 1994 by inserting s.6A whereby unmarried daughters were given equal rights in co-parcenary property - Appellant filed application uni:Jer ss.151, 152 and 153 of CPC for amendment of the preliminary decree and for F grant of declaration that in terms of s. 6A she was entitled to 211th share (higher share) in the suit property, claiming that she· had not married till the enforcement of the Kamataka Act No.23 of 1994 - Trial Court dismissed the appellant's application holding that amendment made in the Act same G cannot be relied upon for amending the decree, which had become final - High Court upheld the order of trial court - On appeal, held: By the preliminary decree, shares of the 55 H 56 SUPREME COURT REPORTS [2011] 8 S.C.R. A 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 it was open to the appellant to B claim enhancement of her share in the joint family properties because she had not married till the enforcement of the Kamataka Act No.23 of.1994 - 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 c 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 dec(ee is passed - If in the interregnum any party to the partition suit dies, then his/her share is required to be 0 allotted to the surviving parties and this can be done in the final decree proceedings - Likewise, if law governing the parties is amended before 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 E parties to the suit change due to other 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 - In the instant case, the final decree proceedings were. pending the day s. 6A came into force - F Therefore, the appellant had every right to seek enlargement of her share 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 - Consequently, the application filed G by the appellant under ss.151, 152 and 153 CPC is allowed - Code of Civil Procedure, 1908 - ss. 151, 152 and 153 - Constitution of India, 1950 - Article 15(3). Respondent no.1 filed suit for partition and separate H PREMA v. NANJE GOWDA AND ORS. 57 possession of his share in the joint family property. The A preliminary decree was passed on 11.8.1992 whereby the trial court held that plaintiff-respondent no.1 and defendant no.3 were entitled to 2/7th share whereas defendant nos. 1, 4, 5 and defendant no.6-daughter (appellant) were entitled to 1 /28th share eac'1. The B defendant no.6-appellant and defendant Nos.1, 4 and 5 filed a joint appeal which was dismissed by the first appellate court. The second Appeal filed by defendant Nos.1, 4 and 5 was dismissed by the High Court. Subsequently, Respondent No.1 instituted final decree c proceedings. Meanwhile, the Karnataka legislature
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