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PRASANTA SAHU vs CHARULATA SAHU & Ors CA 2913/23 29/03/23 [ A.S. BOPANNA JJ ]

[ SUPREME COURT OF INDIA ]

Senior Counsel R Basant appeared for the appellants, while Counsel V Chitambaresh and Counsel B Sunita Rao appeared for the respondents.

In this case, the litigation related to the partition of ancestral properties between the appellants and the respondents.

• Partition Act Section 4 Hindu Succession (Amendment) Act Hindu Succession Act Section 6 Suit for partition Claim of 1/3rd share by daughter in father’s property against defendant No. 1 (brother) and defendant No. 2 (sister) Decree by Trial Court and allowing of cross appeal and declaring compromise between original owner(dead) and sister as invalid Held, by virtue of preliminary decree passed by Trial Court, which was confirmed by Division Bench of High Court, issues decided therein will be deemed to have become final but as partition suit is required to be decided in stages, same can be regarded as fully and completely decided only when final decree is passed As law governing parties amended before conclusion of final decree proceedings, party benefitted by such amendment (like the two daughters in the case on hand) can make request to Trial Court to take cognizance of Amendment and give effect to same Hence, plaintiff daughter entitled to 1/3rd share in all properties of her Late father.

80. It is in the aforesaid background that daughters are entitled to 1/3rd share in all the properties as scheduled in the plaint. The same would be in accordance with the dictum as laid in Vineeta Sharma (supra), while passing the final decree. At the cost of repetition, we state that by virtue of the preliminary decree passed by the Trial Court, which was confirmed by the Division Bench of the High Court, the issues decided 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 decree is passed. As the law governing the parties has been amended before the conclusion of the final decree proceedings, the party benefitted by such amendment conferred, the preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have no hesitation to reject the effect of statutory fiction of the proviso to Section 6 as discussed in Prakash v. Phulavati [(2016) 2 SCC 36 : (2016) 1 SCC (Civ) 549] and Danamma [Danamma v. Amar, (2018) 3 SCC 343 : (2018) 2 SCC (Civ) 385]. If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of (like the two daughters in the case on hand) can make a request to the Trial Court to take cognizance of the Amendment and give effect to the same.

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