Amendment to the Hindu Succession Act, 1956 (“Act”) in the year 2005 turned to be an enabling provision for women by providing them with the rights over the ancestral property, which for long period of time was denied to them. Section 6 of the Act was amended so as for this purpose which provided rights to daughters equivalent to those of a sons in a family property by virtue of their birth. But, it shall be noted here that act so amended cannot be applied to the partitions or property arrangements executed before the commencement of the act. Statement of Objects and reason of the amendment act, if read carefully, will aptly connote that the said amendment to the act was indeed carried out because disallowing women from claiming any kind of share in the property was behaving as a discriminatory provision against the women. In other words, it was a gender biased provision. The date on which this amended act came into force was September 9, 2005.
Some of the ways by means of which a Hindu Joint Property can be divided are a registered instrument of a partition, and a decree of the court. In the former case, sometimes it becomes difficult to conclude at what stage of the trail a decree of the court can be considered to be sufficient for the final partition of a Hindu Joint Property. In other words, whether preliminary decree can be considered to be sufficient enough for the partition of a Hindu Joint Property? This question has recently been addressed by the Supreme Court in Ganduri Koteshwaramma & Ors v. Chakiri Yanadi & Ors Civil Appeal No. 8538 of 2011, where issue as regards the rights of the daughters/appellants under the amended act had come before the court.
Preliminary decree had been passed by the trial court in the year 1999, at a time when the impugned act was not amended by the legislature. Before the final decree passed, the act was amended in the year 2005 thereby conferring rights over the appellant on in the piece of property which they had not been holding any kind of share earlier. The same amendment was allowed by the trail court and the final decree was made only after taking into consideration the amended act. In the meantime, Sons/Respondent preferred an appeal before the Andhra Pradesh High Court, and interestingly High Court reversed the decree of trial court, and further high court was of the view that final decree shall always be in conformity with the preliminary decree after taking into consideration Order XX Rule 18 of CPC. Eventually, the matter came before the Supreme Court by means of a civil appeal.
Supreme Court aptly discussed the issue as regards the substance which one should provide to the preliminary decree. Court held that a suit for partition cannot said to have been disposed off only by means of a preliminary decree, and the same shall stand to be concluded only when the final decree has been passed. Further Court was of the opinion that the same preliminary decree can be amended as many times as court wants to amend before the final , and no provision under Civil Procedure can said to be a deterrent to the same. Court, while opining this, relied on the case of Phoolchand and Anr. Vs. Gopal Lal [AIR 1967 SC 1470], wherein it had been held by the court that –
"We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. . . . .. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; ........... there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. . . for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. . . . .a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree.... ............"
Court also relied on the case of S. Sai Reddy vs. S. Narayana Reddy and Others [(1991) 3 SCC 647 11], wherein it had been held by the court that
“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”.
Eventually, court in this case, while appreciating the fact that this amended act shall not be applied to the partitions which had already been executed before this amended act, Court allowed the appeal.
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