Exception to rule that rights of the parties have to be decided as crystallized as on the date of the institution of the suit.

WHEN

By and large, the rights of the parties have to be
decided as crystallized as on the date of the institution of the suit. However, this is not a
universal rule as it is having certain exceptions. Nevertheless, in the light of the
subsequent events like the amendment of law, for instance the Hindu Succession Act as
amended in 2005, whether the changed shares as per law to be granted by passing an
suitable preliminary decree; or the shares which had been granted by a preliminary decree
passed by the Court of first instance have to be confirmed by the appellate Court, will be
a serious question.15 In the case under study, daughters came on record as legal
representatives of the deceased defendant. So, they cannot put forth a plea different or
other than the pleas that were taken by the deceased defendant. The settled legal position
is that the parties who are brought on record as legal representatives cannot be equated
with the parties originally on record. The daughters being legal representatives, for the
first time raised a plea that they are also entitled to their respective shares on the strength
of the amended provisions of sec.6 of the HS Act and sought for permission of the Court
to file additional written statement. It may be noted that the High Court has confronted

with this situation in the early days of coming into force of the new provision making the
daughter a coparcener under sec. 6 of the Act. The Court approached this controversy by


formulating the question, viz., when the parties already are on record in the capacity as
legal representatives, the question would be whether such parties to be permitted to take
the additional plea substantially a legal plea relating to the applicability of Section 6 of
the Act as substituted by Amending Act 39 of 2005 or such permission not to be granted
for the reason that they being only legal representatives, they cannot be permitted to put
forth such plea though it is a subsequent event since such plea was not available to the
3rd defendant at the relevant point of time.
It was stated by the learned Judge that because substitution of Section 6 of the Act was a
subsequent event, the 3rd defendant (legal representative) had no occasion or opportunity
of taking such a plea, for the reason that the Amending Legislation was not in existence
as on the said date. For this reason, if the parties are deprived of putting forth such legal
plea based on the subsequent amending legislation, it would cause serious prejudice to
such parties; and if such plea is permitted, there cannot be any doubt or controversy that
the preliminary decree has to be modified and the shares are to be changed accordingly.
When such serious impact is ensued on the working out of the rights of the parties, on the
just ground that they are on record in the capacity of legal representatives and not as
original parties, to deprive such parties in putting forth such plea, would not be just and
proper. Therefore, the said legal representative/s have to be regarded as having been
brought on record not only as legal representatives of deceased defendant, but also as
parties to the suit in their independent capacity as well as in the light of the language of
Order 1 Rule 10(2) of the Code of Civil Procedure "The Court may at any stage of the
proceedings either upon or without the application of either party".

It was observed further the ‗partition‘ that the Legislature had in its mind is a partition
completed in all respects and which has brought about an irreversible situation. Unless a
partition of the property is effected by metes and bounds, the daughters cannot be
deprived of the benefits conferred by the Act. Since the legislation is beneficial and
placed on the statute book with the avowed object of benefiting women who are a
vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to
it. Since in the case before the High Court, the final decree had not been passed and the
property had not been divided by metes and bounds, it is held that Clause (iv) to Section
29-A was not attracted and the respondent-daughters were entitled to their share in the
family property.

Parchuri Sambasiva Rao and others vs. Parchuri Srinivasarao and others 2007 (4) ALD 801

Print Page