Law Web: Leading judgment on partition of joint family property

It is clear from the decisions in Sai Reddy (supra), Ganduri

Koteshwaramma (supra) and Prema (supra) that a partition of the

Hindu Joint Family – that crystallizes each member’s interest, and

thus makes the interests immune to further changes in the law – can

only take place in the manner prescribed by the HSA. A deemed

partition under the proviso to Section 6, HSA is not an actual partition

that crystallizes the interest of all members of the HUF, but only a

legal construction introduced by the legislature to determine how the

interests of the deceased would devolve upon his heirs if a Class I

female relative is alive. The purpose of this fiction of deemed partition as opposed to following the simple rule of survivorship otherwise) is

that Class I female heirs also receive a share in the coparcenary

property of the deceased male, as they would otherwise be excluded

(not being coparcenors themselves, pre the 2005 Amendment). To

argue that such deemed partition crystallizes the interest of the

daughters finally, and that any rights accruing to them at a later stage

which grant an interest in the coparcenary property are unenforceable,

is contrary to the terms and the spirit of the proviso to Section 6 as it

existed before the 2005 Amendment and the letter of the amendment

itself.

Sai

Reddy

Koteshwaramma

(supra),

Prema

(supra)

and

Ganduri

(supra) have all consistently held that the mere

severance in status, sought to be brought about by the institution of a

partition suit, does not result in immutable shares. These decisions

also took note of Phoolchand & Anr v. Gopal Lal AIR 1967 SC 1470

and even an older decision (of the Privy Council) in Jadunath Roy and

Ors. v. Parameswar Mullick and Ors., AIR 1940 PC 11, where it was

held that even after a preliminary decree in a partition suit is made, the

Court is not only powerless, but has the duty to reflect later

developments, which could necessitate re-adjustment of shares (of the

parties) on account of fluctuation in the coparcenary or the joint

family.

33.

From another and more fundamental perspective, if the

fluctuation of interests continued between the male coparcenors (the

brothers) – after the death of Bakshi Ram in 1960, and a division of

his interest to his sons and daughters – there appears no reason why

the daughter’s interest should be foreclosed. They continued to remain

members of the HUF (though not coparcenars), and thus entitled to

avail of any rights that accrued in their favour as female members of

the family, specifically the 2005 amendment in this case. In this case,

till date no final decree has been passed, and neither has any registered

partition deed been placed on record or relied upon by any of the

parties. Accordingly, the amended Section 6 of the HSA is applicable.

The 2005 amending act, thus, is unambiguous, that no past partition or testamentary disposition of property is to be affected or reopened, in order to include the newly created shares of female members of the HUF in the coparcenary. The intention of Parliament was not to create chaos by reopening previous family settlement, but rather, to indicate that for all future actions, the rules of succession, and not survivorship, would operate in default, and further, that female members would be entitled to share just as their male counterparts. Equally, however, the amending act clarifies what is meant by 'partition' in terms of Section 6, i.e. "any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court." Accordingly, only those partitions made by the execution of a duly registered partition deed or a partition effected by a decree of a Court, i.e. partitions recognized by Section 6 as valid, which have occurred before the cut-off date identified, are saved from the operation of the amended Section 6, which would, if operative, require a redistribution of shares within the HUF. Having defined the expression 'partition' in Section 6, Parliament clarified which partitions are left unaffected by the amendment, and those that are susceptible to this change in the statute, giving the Courts clear and unambiguous direction in this regard. Thus, if a partition, as envisaged under the explanation to Section 6(5) occurred before 20.12.2004, then only may the Courts ignore the amended Section 6.

25. Crucially, since the rights and shares of the parties are decided as on the date of partition, it is important to determine the date of partition. First, as discussed above, the notion that a partition occurs as on the date of the death of a male member, and shares crystallize into vested rights at that point in time, as held by the learned Single Judge, is not the correct approach. That event (i.e. the death) only determines how that person's share will be divided amongst the family members (either by survivorship or by succession), rather than effecting any broad-based changes in the family holdings or effecting a partition inter se that would hold against subsequent changes in the family composition or changes in the law. Secondly, neither is the proposition that the shares are defined at the time of filing of the suit for partition correct. Rather, the HUF, and specifically, the coparcenary, continues even after the filing of the suit. The filing of a suit by itself does not mean that a partition has taken place, until a decree of Court effects partition, or a registered deed of partition is signed inter se the parties. Accordingly, the death or birth of family members during the pendency of a suit quite obviously will affect the shares in partition. Similarly, any change in law during the pendency of the suit, as for example is the case with Section 6 of the HSA, would affect the ultimate shares of the parties. A contrary conclusion would not only fly in the face of the definition of 'partition' in Section 6(5), but would also mean, for example, that no partition suit can be withdrawn after it is filed, a proposition which has been rejected on various occasions.

IN THE HIGH COURT OF DELHI AT NEW DELHI

Pronounced on: 31.01.2014

RFA (OS) 11/2010, C.M. NO. 1950/2010

SMT. SWARAN LATA AND ORS. Vs SHRI KULBHUSHAN LAL AND ORS.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT

HON'BLE MR. JUSTICE NAJMI WAZIRI

Citation: AIR2014Delhi86, 210(2014)DLT393, 2014(141)DRJ205

This is an appeal from an order of the learned Single Judge,

whereby a suit for partition filed by sisters was dismissed. The orders

of 19.04.2012 and 11.01.2013 reveal that the first three respondents

(contesting parties in the suit) were served, despite which appearance

had not been entered by them. The order of 11.01.2013 accordingly

recorded that service was complete. It was in these circumstances that

the appeal was heard finally and reserved for judgment. Before

addressing the specifics of the properties involved in this partition

suit, it is useful to record the family structure involved in this case.

The plaintiffs, three sisters filed the suit in 1990 [CS (OS)

2400/1990]

against

two

brothers

(the

first

two

defendants/respondents) and two sisters (third and fourth defendants).

A third brother, Sudarshan Lal, had died on 1st February, 1978, before

the institution of the suit, as a bachelor. The family thus had consisted

of five sisters and three brothers. Their father was Bakshi Ram, who

died on 10th February, 1960, and their mother was Smt. Chanan Devi,

who died on 3rd August, 1978. As regards Sudarshan Lal, the son of

Madan Mohan Sharma, the second defendant, one Prem Prakash

Sharma claimed that Lal had left a will in his favour, and that under

the will so set up, any share in the property Lal had stood bequeathed

to him. For this, he relied on Probate Case No. 34/1988, which he had

filed before the institution of the present suit in respect of Lal’s will.

Although the probate case was decided in Prem Prakash Sharma’s

favour by an order dated 19th August, 2005 (the appeal against which,

filed by Swaran Lata, as FAO(OS) 103/2005 was dismissed), the

learned Single Judge by order dated 25th April, 2008 did not allow him

(Prem Prakash Sharma) to be impleaded in the suit. However, the

senior counsel for Prem Prakash Sharma was also heard by the Single

Judge.

The case of the plaintiffs was that prior to the partition, the late

Bakshi Ram and his family were settled in a part of Punjab that is now

in Pakistan. At the time, the family was a HUF and Bakshi Ram, as

karta, was running various businesses (as a contractor, and running a

petrol pump) at the time. These businesses, it is claimed, were being

run under the name and style of “Bakshi Ram & Sons”. It is alleged

that after partition, Bakshi Ram alongwith his family shifted from

Pakistan to India, and submitted his claims with the Ministry of

Rehabilitation (in India) with regard to various assets and properties

concerning his businesses and also houses and other property left

behind by him in Pakistan. The name of the applicant was “Bakshi

Ram & Sons”, through Bakshi Ram as the karta, and the address

mentioned was 16/229, Joshi Road, Karol Bagh, New Delhi. Thus, the

plaintiff urged that the claim was made by the late Bakshi Ram as the

karta on behalf of a HUF.

As regards the properties left behind in Pakistan, the plaintiffs

claimed that Bakshi Ram had purchased a factory site in the name of

the firm “Bakshi Ram & Sons” sometime in the year 1930. Further, the

plaintiffs state that he was the sole proprietor of a rice flour mill. The

plaintiffs also claim that Bakshi Ram owned a petrol pump of the

Burmah Shell Company, which he was running in Sheikhpura (which

is now in Pakistan). Finally, the plaintiffs state that various business

assets as well as various residential properties were acquired/built by

Bakshi Ram “whether in his personal name or in the name of Bakshi

Ram & Sons, a Joint Hindu Family firm ...”

RFA(OS) 11/2010

Page 3

The suit alleged that post partition Bakshi Ram was allotted

various properties in lieu of those left behind in Pakistan. First, the

Burmah Shell Company allotted a petrol pump in Badarpur, Tehsil

Mehrauli, Delhi to M/s. Bakshi Ram & Sons, a HUF firm, of which

Bakshi Ram was karta. In addition, the plaintiffs allege that some

compensation amount was also paid to Bakshi Ram, which was used

by him to carry various businesses in Delhi and in connection with the

improvement of properties in question. These were Plot No. 43 at

Badarpur, Tehsil Mehrauli, Delhi (for a consideration of ` 950/-), one

‘Kutti Machine’ at Village Azadpur, Delhi, belonging to the

Custodian of Evacuee Property (on a rental basis), and finally Bakshi

Ram was also acting as a contractor of “rehra” stand at Farash Khana,

GB Road, Delhi. Further, the plaintiffs allege that as against the

amounts that Bakshi Ram was entitled to against his assessed claims,

by way of compensation, a property – House No. XVI/318-323, Joshi

Road, Karol Bagh, New Delhi was acquired by Bakshi Ram by

adjusting a part of the compensation amount against the price of the

said property. Crucially, the plaintiffs claim that the businesses etc.

were run in the name of the HUF firm of Bakshi Ram & Sons, as it

was being carried out earlier in Pakistan, till Bakshi Ram died on 10th

February, 1960. It is claimed that Sudharshan Lal acted as the karta

till his death in 1987.

The plaintiffs claim that after the purchase of these various

properties (i.e. after migration from Pakistan), the family business (i.e.

the Hindu Joint Family as it existed then) gradually prospered, and

RFA(OS) 11/2010

Page 4

various other properties were acquired by the family from the funds

generated. These were:

(a)

a plot bearing Khasra No. 2609/727-728, situated in

Tughlakabad, Tehsil Mehrauli, Delhi, measuring 5 bighas, 1

biswa, was obtained by the family, and is being used to run a

petrol pump. This plot,

“as far as the plaintiffs know has been obtained by M/s.

Bakshi Ram & Sons, a Joint Hindu Family firm and the

Petrol Pump that is being run on the said plot also

belongs to M/s. Bakshi Ram & Sons.”

(b)

a plot, No. B-43, Friends Colony, New Delhi, which was

allotted by the DDA in lieu of the DDA having acquired a part

of the family land. Thus, the plaintiffs allege that “this plot was

allotted by the DDA in lieu of acquisition of the Joint Hindu

Family land ...” (c) a plot bearing Khasra No. 32/28/1 and

32/28/2 measuring 2 bighas, 5 biswas as also a plot No. 32/28/3

were “acquired by the Joint Hindu Family in the name of M/s

Bakshi Ram & Sons” in village Badarpur, Tehsil Mehrauli,

Distt. Delhi. This plot too, the plaintiffs allege, “belongs to M/s.

Bakshi Ram & Sons, the Joint Hindu Family firm.” (d) a plot

bearing Khasra No. 231, measuring 2 bighas, 13 biswas, in

village Tajpaul, Tehsil Mehrauli, Distt. Delhi, “in the name of

M/s. Bakshi Ram & Sons and thus this was also a Joint Hindu

Family Property”, in the plaintiff’s averments. (e) a plot bearing

Khasra No. 36/28/2 and 36/29/2 measuring 15 biswas, which

the plaintiffs allege, “was also acquired by the family out of the

RFA(OS) 11/2010

Page 5

Joint Hindu family funds in Village Badarpur, Tehsil Mehrauli,

Delhi.” However, the plaintiffs further aver that out of love and

affection, this plot was purchased in the name of Smt. Chanan

Devi, the widow of Bakshi Ram, i.e. the mother of the parties

before the Court today. (f) Residential house II-K/44, Lajpat

Nagar, New Delhi, was again, the plaintiffs claim, “acquired

out of the Joint Hindu Family Funds.”

Further, the plaintiffs claimed that apart from the family

business and income (i.e. the rental income from the above properties,

and the income from businesses run), the brothers of the plaintiffs, i.e.

the first two defendants, “had not carried on any other business nor

they had any other source of income whatsoever.” After Bakshi Ram’s

death, the plaintiffs claim that Sudarshan Lal carried on various

businesses, held numerous bank accounts, fixed deposits and shares of

various companies, all of which, though in the name of Sudarshan Lal,

actually belonged to the HUF. However, the plaintiffs stated as

follows:

“10...................The plaintiffs at the moment are not

aware of the entire details of the various Bank

Accounts/Fixed Deposits etc. standing in the name

of late Sudarshan Lal as also the various Bank

Accounts and Fixed Deposits etc. in the name of

Joint Hindu Family firm M/s. Bakshi Ram & Sons

and other firms stated in the suit. The details in this

behalf are within the special knowledge of

defendants No. 1 and 2. The plaintiffs are trying to

ascertain the details in his behalf and shall furnish

the same as soon as the same are known to the

RFA(OS) 11/2010

Page 6

plaintiffs or are otherwise disclosed by the defendant

Nos. 1 and 2................................”

Based upon these facts alleged in the suit, the plaintiffs claimed

that as Class I heirs of Bakshi Ram and Smt. Chanan Devi, under the

Hindu Succession Act, 1956 (hereafter “the HSA”), they were entitled

to one-seventh equal shares (i.e. sharing between the five sisters, and

two brothers, except for Sudarshan Lal, who died as a bachelor), in the

HUF properties and in the properties left behind by their mother.

Further, as regards Sudarshan Lal’s properties, it was argued that the

plaintiffs alongwith the defendants, are his Class II legal heirs under

the HSA, and thus entitled to a 1/7th share in all properties that stood

in his name as well. As an alternative plea, it was argued that the

properties of Sudarshan Lal were actually properties belonging to the

HUF, and thus, the 1/7th share stood established on that count.

Furthermore, the plaintiffs claim that till the death of Bakshi

Ram or till the death of Smt. Chanan Devi, or even till the death of

Sudarshan Lal, no partition of the family properties had taken place

and the properties as such continue to be joint with all the parties

having their respective undivided share in the same.

10.

The first two defendants (i.e. the two brothers) filed a common

written statement; the third and fourth defendants did not appear and

were set down ex parte. The two brothers pleaded that: (1) the first

two plaintiffs, and non-contesting appellants in the present appeal,

were married in 1944 and 1951, i.e. before the HSA in 1956, and thus,

as such they were not members of the HUF; (2) that when Bakshi

Ram died on 10th February, 1960, subsequently, on 21st February,

RFA(OS) 11/2010

Page 7

1960 all the members of the HUF assembled at the Kriya ceremony

and agreed to severe the HUF, and apportion the property. In this

connection they made an unambiguous and definite declaration of

their intention to separate. Accordingly, it was argued that the

plaintiffs, being party to such agreement, were estopped from

questioning the validity of the partition; (3) that the suit was time

barred under Article 113, Limitation Act, 1963; (4) as regards the

plaintiff’s claim over the house No. XVI/318-323, Joshi Road, Karol

Bagh, New Delhi, the brothers claimed that in terms of a settlement

made between the members of the family (including the plaintiffs), the

plaintiffs had relinquished their right/claim over the plot under a

registered document in favour of Sudarshan Lal; (5) that the petrol

pump in Pakistan belonged not to the HUF but to the partnership firm

comprising Bakshi Ram,Sudarshan Lal and Kulbhushan Lal; (6)

similarly, that the petrol pump allotted in 1947 by M/s. Burmah Shell

in Badarpur by an agreement dated 01.12.1948 was to the partnership

firm (and not the HUF); (7) the existence of the kutti machine and the

rehra stand was denied; (8) that at the time of the demise of Sh.

Bakshi Ram, the joint family properties comprised only of the

abovementioned house at Joshi Road, Karol Bagh; plot number 43 of

khasra number 36/28/2 and 36/29/2 in village Badarpur, and land

bearing khasra numbers 32/28/1 and 32/28/2 in village Badarpur; (9)

that the Karol Bagh house was acquired as against the compensation

amount payable to Bakshi Ram and his three sons (as the partnership

firm) in his name, and after his death, all parties to the present case

relinquished their rights in the property in favour of Sudarshan Lal by

RFA(OS) 11/2010

Page 8

a registered deed, and further, that the property was thus mutated in

favour of Sudarshan Lal in the records of the MCD and the DDA; (9)

Plot No.43 (bearing Khasra No.36/28/2 & 36/29/2) at Badarpur was

acquired by Bakshi Ram from Ministry of Rehabilitation against the

claims. On his demise and dissolution of the HUF the said plot vested

in the mother of the parties Smt. Chanan Devi. She had in or about the

year 1960 filed a suit in the court of Senior Sub-Judge, Delhi with

respect to the plot No.43 seeking declaration of her rights as owner

and Bhumidar thereof on the statement of her three sons. A decree for

declaration was granted declaring her to be the owner and Bhumidar

of the said lands; the said lands were also mutated in her name in the

revenue records; (10) the plot in Khasra No.32/28/1 & 32/28/2 vested

in terms of the family settlement in the three sons of Bakshi Ram and

also mutated in their names; (11) that on the dissolution of HUF, three

brothers had agreed to pay `10,000/- to each of the sisters and which

stood paid; (12) that since September, 1958 all the brothers had been

residing separately; it was denied that any of the businesses were of

the HUF; (13) with respect to land admeasuring 5 bighas and 1 biswas

in Tuglakabad it was stated that the same had been acquired by

Sudarshan Lal out of his own personal fund and by registered sale

deed dated 11th June, 1960 and Bakshi Ram and Sons had nothing to

do with the said land. He had leased out a part of the plot to Burmah

Shell for the petrol pump and the petrol pump in the name and style of

BE-AR Sales (Auto Grit) was functioning there since 1961 in

partnership, between Sudarshan Lal and the Defendant No.1;

subsequently Prem Prakash Sharma joined the said firm. It was denied

RFA(OS) 11/2010

Page 9

that the petrol pump (Auto Grit) belonged to Bakshi Ram and Sons; it

was further averred that the land underneath this was acquired and

Sudarshan Lal had filed a writ petition in this Court challenging the

said acquisition; during the pendency of the writ petition Sudarshan

Lal expired and Prem Prakash Sharma was substituted in his place;

(14) Sudarshan Lal had with his own monies in the year 1968 acquired

the land measuring 2 bighas and 10 biswas at village Tehkhand and

the sale deed thereof was in his name only and was his exclusive

property; the same was acquired and in lieu thereof plot No. B-43

Friends Colony, New Delhi was allotted to Sudarshan Lal; (15) with

respect to the land in Khasra No.32/28/1 & 32/28/2 in village

Badarpur it was stated that though it belonged to Bakshi Ram but on

his demise the lands were mutated in favour of his three sons under

provisions of the Delhi Land Reforms Act; the said lands were

acquired; the acquisition was also challenged by the three sons only of

Bakshi Ram; (16) that there was no land bearing Khasra No.32/28/3

described by the plaintiffs; (17) land measuring 2 bighas 16 biswas in

Khasra No.231, Village Tajpaul, Tehsil Mehrauli was the exclusive

property of Sudarshan Lal acquired in 1957 and that in 1968

Sudarshan Lal had formed HUF in the name and style of Bakshi Ram

and Sons and was its karta. (18) the house at Lajpat Nagar was in the

tenancy of the second defendant since 1958; it was averred that the

said house was purchased by Prem Prakash Sharma by sale deed dated

10th August, 1989; the house has since been sold; (18) BE-AR Sales

was a partnership of Sudarshan Lal and the first defendant and it was

carrying on business in the name and style of Auto Rest, Auto Rink

RFA(OS) 11/2010

Page 10

and Auto Grit; subsequently Prem Prakash Sharma too joined the said

firm. The petrol pump Auto Yard was the sole proprietary concern of

the second defendant since April, 1966 and it had been converted into

a partnership firm of the defendant No.2 and his wife since February

1987. The existence of any firm in the name and style of Sharma and

Company was denied.

11.

On 8th September, 1994, and later, on 11th December, 2001, the

following issues were framed by the Court:

“1. Whether plaintiffs 1 and 2 have any subsisting

right and interest in the Joint Family Property

despite their marriages in 1994 (1944) and 1951

respectively? OPP

2. Whether plaintiffs have a right to sue for partition

of Joint Family Property?

3. Whether the suit is barred by time under Article

113 of the Limitation Act? OPD1D2

4. Whether there was severance of status of Joint

Hindu Family of Bakshi Ram & Sons on 21.2.60?

OPD1D2

5. What properties were held by Bakshi Ram & Sons

at the time of death of Sh. Bakshi Ram on 10.2.60

OPP

6. What was the share of Bakshi Ram in the Joint

Family Property at the time of his death? OPP

7. To what share of the share of late Bakshi Ram in

the Joint Family Property is each plaintiff entitled?

OPP

8. Whether the plaintiffs who alongwith defendant

No.4 relinquished their right/claim over house

No.XVI/318 and 323, Joshi Road, Karol Bagh, New

RFA(OS) 11/2010

Page 11

Delhi, in favour of their brother Sudarshan Lal

under registered documents can still lay claim over

that house? OPP

9. Whether the plaintiffs can claim any share in

lands bearing khasra Nos.32/28/1 and 32/28/2

which were mutated on the death of Bakshi Ram in

the name of his three sons under the Delhi Land

Reforms Act? OPP

10. Whether the plaintiffs can claim any share in

plot No.43 bearing khasra No.36/28/2 and 36/29/2

situated in village Badarpur, Delhi, which was

mutated in the name of their mother Chanan Devi on

18.2.63, after she had been declared as Bhumidar?

OPP

11. Whether the plaintiffs can claim a share in any

other property which was purchased or acquired by

defendants 1 and 2 out of their own funds after the

death of their father Bakshi Ram? OPP

11A. Whether the suit is properly valued for the

purpose of court fee and jurisdiction? If not its

effect?

12. Relief.”

12.

It would be useful, at this juncture to tabulate the various

properties that are sought to be partitioned by the appellant.

Property

Details

Petrol Pump Badarpur, Tehsil Mehrauli

One Kutti Machine Azadpur

Rehra Stand FarashKhana,

Delhi

Road,

Plot measuring 5 bigha, 1 Village Tughlakabad, Tehsil

RFA(OS) 11/2010

Page 12

biswas Mehrauli

Plot No. B-43 Friends Colony, New Delhi

Plots of land bearing khasra Village Badarpur, Tehsil

numbers 36/28/1-3

Mehrauli

Plot measuring 15 bighas, Village Badarpur, Tehsil

bearing khasra number Mehrauli

36/28/2 and 29/2

House No. II-K/44

Lajpat Nagar, New Delhi

Businesses in the name of

Auto

Grit

Tughlakabad,

Tehsil

Mehrauli; b) Auto Rink at

Badarpur, Tehsil Mehrauli,

c) Auto Rest at Badarpur,

d) Auto Yard on Mathura

Road, e) BE AR Sales at

Badarpur, f) a business in

the name of Sharma and

Company in Badarpur.

Various

other

bank

accounts, fixed deposits

and

jewellery,

though

details of these items have

not been provided in the

plaint, or the appeal

memorandum.

House No. 16/229

Plot of land

number 231

RFA(OS) 11/2010

Joshi Road, Karol Bagh,

New Delhi

bearing Village

Tejpaul,

Mehrauli, Delhi

Tehsil

Page 13

13.

The learned Single Judge considered the evidence on record,

and held that the amendment to Section 6 of the Hindu Succession

Act, 1956 in 2005 (that made female members of the HUF members

of the coparcenary as well) would not be applicable as the amendment

was, in view of the dictum in Mukesh v. Bharat Singh, 149 (2008)

DLT 114, not retrospective. The learned Single Judge consequently

held that as the suit was instituted before the amendment, and further,

as the demise of Bakshi Ram was 35 years prior to the amendment,

the plaintiffs – as female members of the HUF – would have no right

as co-parcenors. Furthermore, the learned Single Judge held that there

was a deemed partition on the date of the death of Bakshi Ram, and

the shares in the coparcenary property would be decided according to

that event. However, the plaintiffs would, the learned Single Judge

held, be entitled to a share by way of succession as Class I heirs under

Section 8 of the HSA of late Bakshi Ram’s share in the coparcenary

property. Thus, on this latter ground, it was held that the plaintiffs did

have the right to sue, but not as coparcenors. On the question of

limitation, the learned Single Judge held the first two defendants’ plea

–that the suit was time-barred because partition took place on the

demise of Bakshi Ram in 1960 – was incorrect. It was held that this

partition was not proved. On the contrary, the first and second

defendants admitted existence of the HUF in the partnership deed of

1st April, 1968 and in WP(C) No. 1921/1986. With regard to the

various business allegedly run by the HUF, the learned Single Judge

noted that it was proved, by way of the partnership deed produced as

Ex.P-20, that they were taken out of the HUF with effect from

RFA(OS) 11/2010

Page 14

01.04.1968, nearly 22 years prior to institution of the suit, and carried

on in partnership between the male members of the family. With

respect to claim to partition and rendition of accounts of these

businesses were held to be time-barred.

14.

On the question of which properties were part of the HUF at the

time of the death of Bakshi Ram, i.e. on 10.02.1960, the learned

Single Judge, based on admissions of the first and second defendants

in the form of the partnership deed dated 1st April, 1968, held that the

following properties were held jointly: a) the house at Joshi Road,

Karol Bagh, b) Plot No. 43 comprising khasra number 36/28/2 and

36/29/2 at Village Badarpur, Delhi, c) plot of land bearing khasra

number 32/28/1 and 32/28/2 at village Badarpur, Delhi, d) plot of land

bearing number 231, village Tejpaul, Tehsil Mehrauli, Delhi and

finally, e) a plot of land in Tughlakabad. Of these properties, Bakshi

Ram’s 1/5th share (the entire share being divided between the five

members of the family who would share in the coparcenary, i.e. him,

his wife, and three sons) would devolve upon the eight children and

late Bakshi Ram’s widow. Thus, the learned Single Judge held that

each of the plaintiffs would be entitled to a 1/8th share of the 1/5th

share of late Bakshi Ram. However, with respect to the house at Joshi

Road, Karol Bagh, the Single Judge held that the plaintiffs had, by

way of a registered relinquishment deed (which was admitted by the

plaintiffs), surrendered any claim over that property to Sudarshan Lal.

Further, with respect to Plot No. 43 comprising khasra number

36/28/2 and 36/29/2 at Village Badarpur, Delhi, the Single Judge held

that it was admitted and established that the property stand mutated in

RFA(OS) 11/2010

Page 15

the name of the mother, Smt. Chanan Devi, as the bhumidar and thus,

the provisions of Section 51 of the Delhi Land Reforms Act, 1954

would apply, despite the fact that the land may have been urbanized.

Accordingly, the learned Single Judge held that under Section 51, only

male members of the family would be entitled to the land, and the

plaintiffs would be excluded from any share. Thus, in conclusion, the

learned Single Judge held that the only properties in which the

plaintiffs could have a share are those which were admitted in the

partnership deed dated 1st April, 1968 minus those over which the

claim was relinquished, or that were regulated by the Delhi Land

Reforms Act. This, the learned Single Judge noted, left three

properties in which the plaintiffs had a share, i.e. a) plot of land

bearing khasra number 32/28/1 and 32/28/2 at village Badarpur,

Delhi, b) plot of land bearing number 231, village Tejpaul, Tehsil

Mehrauli, Delhi and finally, c) a plot of land in Tughlakabad.

However, the learned Single Judge held that Section 185 of the Land

Reform Act bars the jurisdiction of civil courts with respect to

properties governed by the Act, irrespective of whether the lands were

mutated in favour of the HUF or any individual family member.

Accordingly, the learned Single Judge held that none of the three

properties could be partitioned in this suit, given the bar under Section

185.

15.

Impugning this order and judgment of the learned Single Judge

as erroneous, counsel for the third plaintiff, urged that the finding that

the properties in question were coparcenary properties, and not self-

acquired properties and regulated by Section 8, HSA was incorrect.

RFA(OS) 11/2010

Page 16

Learned counsel argued that there is no basis for holding that the

properties are coparcenary, since no proof of their ancestral nature was

on record. Further, learned counsel questioned the validity of the

relinquishment deed in favour of Sudarshan Lal, urging that there is

no citation that the executant signed in the presence of the attesting

witnesses and the attesting witnesses signed in the presence of the

executant, which is a requirement under law. Next, learned counsel

argued that the learned Single Judge did not partition the 1/5th share of

the mother, Chanan Devi, without providing any reasoning in the

judgment, despite admitting that share. Finally, learned counsel

argued that the learned Single Judge fell into error in holding that

Section 6, HSA as amended in 2005 was inapplicable, as no partition

took place before the institution of the suit, or till the date of the

amendment. Counsel relied on proviso to Section 6(1) as well as

Section 6(5) and argued that once the statute spelt out the conditions

when the legislature had specifically provided as to what class of

cases were excluded from the amendment, there was no question of

the Single Judge holding that the appellant and other daughter’s share

in the property was confined to the father’s 1/5th share, either on the

basis of notional partition, or on the understanding that a division took

place upon the filing of the suit. In other words, as to what categories

of partition are deemed to have concluded and become final having

been expressly provided, the Court could not have denied the share of

the daughters, which fell to them upon the enactment and coming into

force of the 2005 amendment. Accordingly, learned counsel argued

that since the HUF was intact as on the date of coming in force of the

RFA(OS) 11/2010

Page 17

amendment- since no partition, much less a partition arising out of a

final decree had been made, the finding of the learned Single Judge

that a notional partition took place on the demise of Bakshi Ram and

that it crystallized the rights of the first two defendants was contrary to

the HSA.

16.

Learned counsel also argued that the impugned judgment is

unsustainable because several properties had been urbanized on

account of notifications issued under Section 507(a) of the Delhi

Municipal Corporation Act, 1957. It was submitted that on account of

this development, the provisions of Delhi Reforms Act would not

apply. Counsel relied on the decision of a Division Bench of this

Court,

Smt.

Indu

Khorana

Gram

Sabha

and

Ors.,MANU/DE/0969/2010.

Analysis and Findings

17.

Four questions arise for the consideration of the Court in this

case: first, whether the various properties in question were

coparcenary properties to begin with, or self-acquired properties of

Bakshi Ram; secondly, whether the properties in question are to be

deemed to be partitioned as on the date of the death of Bakshi Ram, or

whether they are to be partitioned as on a later date; thirdly, whether

the 2005 amendment to Section 6 is operative in this case;

consequently, what are the shares of the parties; fourthly, whether any

of the properties are governed by the succession rules under the Delhi

Land Reforms Act, and thus, beyond the subject-matter jurisdiction of

this Court.

RFA(OS) 11/2010

Page 18

18.

On the first question, the learned Single Judge proceeded on the

finding that the properties were coparcenary properties. The plaintiff’s

case itself is that Bakshi Ram alongwith his family shifted from

Pakistan to India, and submitted his claims with the Ministry of

Rehabilitation in India with regard to various assets and properties

concerning his businesses, houses and other property left behind by

him in Pakistan. In this application, the name of the applicant was

“Bakshi Ram & Sons”, through Bakshi Ram as the karta, and the

address mentioned was 16/229 Joshi Road, Karol Bagh, New Delhi.

Indeed, after migration, the plaint alleges that Bakshi Ram was

allotted various properties in lieu of those left behind in Pakistan, thus

also constituting joint family property. Indeed, it is undisputed that

after the purchase of these various properties (i.e. after migration from

Pakistan, and compensation paid by the government), the family

business (i.e. the Hindu Joint Family as it existed then) gradually

prospered, and various other properties were acquired by the family

from the funds generated. These were: (a) a plot bearing Khasra No.

2609/727-728, situated in Tughlakabad, Tehsil Mehrauli, Delhi,

measuring 5 bighas, 1 biswa, was obtained by the family, and is being

used to run a petrol pump. This plot, “as far as the plaintiffs know has

been obtained by M/s. Bakshi Ram & Sons, a Joint Hindu Family firm

and the Petrol Pump that is being run on the said plot also belongs to

M/s. Bakshi Ram & Sons.” (b) a plot, No. B-43, Friends Colony, New

Delhi, which was allotted by the DDA in lieu of the DDA having

acquired a part of the family land. Thus, the plaintiffs allege that “this

plot was allotted by the DDA in lieu of acquisition of the Joint Hindu

RFA(OS) 11/2010

Page 19

Family land ...” (c) a plot bearing Khasra No. 32/28/1 and 32/28/2

measuring 2 bighas, 5 biswas as also a plot No. 32/28/3 were

“acquired by the Joint Hindu Family in the name of M/s Bakshi Ram

& Sons” in village Badarpur, Tehsil Mehrauli, Distt. Delhi. This plot

too, the plaintiffs allege, “belongs to M/s. Bakshi Ram & Sons, the

Joint Hindu Family firm.” (d) a plot bearing Khasra No. 231,

measuring 2 bighas, 13 biswas, in village Tajpul, Tehsil Mehrauli,

Distt. Delhi, “in the name of M/s. Bakshi Ram & Sons and thus this

was also a Joint Hindu Family Property”, in the plaintiff’s averments.

(e) a plot bearing Khasra No. 36/28/2 and 36/29/2 measuring 15

biswas, which the plaintiffs allege, “was also acquired by the family

out of the Joint Hindu family funds in Village Badarpur, Tehrul

Mehrauli, Delhi.” (f) Residential house II-K/44, Lajpat Nagar, New

Delhi, was again, the plaintiff’s claim, “acquired out of the Joint

Hindu Family Funds.” Given these averments in the plaint, the Court

does not find any reason to interfere with the finding of the learned

Single Judge that the properties were not self-acquired properties of

Bakshi Ram, but rather, joint family properties at the time.

19.

On the second question, the learned Single Judge held that

“there is deemed to be a partition of the said HUF at the moment of

the demise of Bakshi Ram...” and thus, the shares are divided at that

time itself. Under the HSA, on the death of a member of coparcenary,

neither the coparcenary nor the HUF is broken. Prior to the 2005

amendment, the coparcenary property continued to remain vested in

the remaining coparceners by survivorship, i.e. the remaining

RFA(OS) 11/2010

Page 20

surviving coparceners (i.e. male members of the family) hold the

property jointly. As Mayne’s Hindu Law and Usage records:

“The right of male members, which arise by birth are

only ascertained on partition; for, no individual member

of a family, whist it remains undivided, can predicate of

the joint undivided property that he has any definite

share. The interest of the member in the undivided

property is not individual property but is a fluctuating

interest liable to be diminished by births or increased by

deaths in the family.” (p. 667, 16thedn., Bharat Law

House, 2003) (emphasis supplied)

20.

Accordingly, the mere death of a family member does not lead

to a division of the coparcenary interest, but rather, a revision of it

amongst the remaining coparcenors. This revision of the coparcenary

interest was, in 1960, when Bakshi Ram died, regulated by the un-

amended Section 6 of the HSA, which read as follows:

“When a male Hindu dies after the commencement of this

Act, having at the time of his death an interest in a

Mitakshara coparcenary property, his interest in the

property shall devolve by survivorship upon the surviving

members of the coparcenary and not in accordance with

this Act:

PROVIDED that, if the deceased had left him surviving a

female relative specified in class I of the Schedule or a

male relative specified in that class who claims through

such female relative, the interest of the deceased in the

Mitakshara coparcenary property shall devolve by

testamentary or intestate succession, as the case may be,

under this Act and not by survivorship.

Explanation I: For the purposes of this section, the

interest of a Hindu Mitakshara coparcener shall be

deemed to be the share in the property that would have

been allotted to him if a partition of the property had

RFA(OS) 11/2010

Page 21

taken place immediately before his death, irrespective of

whether he was entitled to claim partition or not.”

21.

Therefore, in the case of the death of a male relative, without a

female Class I heir, no question of a deemed partition arises, and the

rule of survivorship was to operate unhindered. However, as in this

case, since Bakshi Ram died leaving behind his wife and five

daughters, all Class I heirs, the proviso would be applicable, and the

Court must conduct a deemed partition to ascertain the interest of the

deceased, Bakshi Ram, in the coparcenary property. This exercise

does not, however, translate into an actual partition between the

family, nor does it affect the continuity of the coparcenary amongst

the remaining male members of the family. Rather, in terms of the

proviso, the share of the deceased, had a partition taken place, is to be

divided as per Section 8 of the HSA, i.e. by succession. The effect of

the deemed partition, thus, is limited to ascertaining the share of the

deceased, which is then claimed by his Class I heirs, rather than to

claim that a partition with respect to the entire coparcenary occurs,

which is the import of the order and judgment of the learned Single

Judge. While traditional Hindu law did not require such a deemed

partition, and the coparcenary property would remain, as Mayne

explains above, fluctuating within the remaining coparceners, there is

by way of the proviso to the unamended Section 6, a clear statutory

departure from this method of division of the property. However, the

proviso is limited, in that although the share of the deceased is

removed from the coparcenary and vested as an absolute share in the

female relatives by way of Section 14 of the HSA, the remaining share

RFA(OS) 11/2010

Page 22

of the coparcenary property remains intact, in the same state of

jointness as it existed before and subject to the same rules of

fluctuating interest. Accordingly, the finding of the learned Single

Judge that there was a deemed partition at the time of the death of

Bakshi Ram is undoubtedly correct, this does not mean that the shares

in the coparcenary property for this suit would be decided according

to that event or that the shares would have crystallized and become

unalterable. Rather, the coparcenary continued, and the extent of

shares would be decided at the time of the actual partition, either

through a registered deed of partition or a decree of this Court, as

explained below.

22.

The third question that arises before this Court is whether the

2005 amendment to Section 6 of the HSA is operative in this case.

Before entering this discussion, it is useful to quote the amendment

Section 6 in its relevant part:

“6. Devolution of interest in coparcenary property

(1) On and from the commencement of the Hindu

Succession (Amendment) Act, 2005, in a Joint Hindu

family governed by the Mitakshara law, the daughter of a

coparcener shall,- (a) by birth become a coparcener in

her own right in the same manner as the son; (b) have the

same rights in the coparcenary property as she would

have had if she had been a son; (c) be subject to the same

liabilities in respect of the said coparcenary property as

that of a son, and any reference to a Hindu Mitakshara

coparcener shall be deemed to include a reference to a

daughter of a coparcener:

Provided that nothing contained in this sub-section shall

affect or invalidate any disposition or alienation

including any partition or testamentary disposition of

RFA(OS) 11/2010

Page 23

property which had taken place before the 20th day of

December, 2004.

(2) Any property to which a female Hindu becomes

entitled by virtue of sub-section (1) shall be held by her

with the incidents of coparcenary ownership and shall be

regarded, notwithstanding anything contained in this Act,

or any other law for the time being in force, as property

capable of being disposed of by her by testamentary

disposition.

(3) Where a Hindu dies after the commencement of the

Hindu Succession (Amendment) Act, 2005, his interest in

the property of a Joint Hindu family governed by the

Mitakshara law, shall devolve by testamentary or

intestate succession, as the case may be, under this Act

and not by survivorship, and the coparcenary property

shall be deemed to have been divided as if a partition had

taken place and,- (a) the daughter is allotted the same

share as is allotted to a son; (b) the share of the pre-

deceased son or a pre-deceased daughter, as they would

have got had they been alive at the time of partition, shall

be allotted to the surviving child of such pre-deceased

son or of such pre-deceased daughter; and (c) the share

of the pre-deceased child of a pre-deceased son or of a

pre-deceased daughter, as such child would have got had

he or she been alive at the time of the partition, shall be

allotted to the child of such pre-deceased child of the pre-

deceased son or a pre-deceased daughter, as the case

may be.

Explanation.- For the purposes of this sub-section, the

interest of a Hindu Mitakshara coparcener shall be

deemed to be the share in the property that would have

been allotted to him if a partition of the property had

taken place immediately before his death, irrespective of

whether he was entitled to claim partition or not.

RFA(OS) 11/2010

Page 24

(5) Nothing contained in this section shall apply to a

partition, which has been effected before the 20th day of

December, 2004.

Explanation.- For the purposes of this section "partition"

means any partition made by execution of a deed of

partition duly registered under the Registration Act, 1908

(16 of 1908) or partition effected by a decree of a court.”

23.

The present suit was instituted before the 2005 amendment to

Section 6, and the death of Bakshi Ram was even before. The learned

Single Judge concluded that the 2005 amendment was not

retrospective, relying of the decision of this Court in Bharat Singh

(supra). In Bharat Singh, a Single Judge of this Court held that:

“the Amending Act of 2005 cannot be read retrospectively

as the Amending Act has not been given a retrospective

operation. Meaning thereby, successions which had taken

place prior to the promulgation of the Amendment Act of

2005 cannot be disturbed.”

24.

This position, however, it has to be considered as qualified in

view of the proviso to Section 6(1) and Section 6(5). The proviso to

Section 6(1) records:

“that nothing contained in this sub-section shall affect or

invalidate any disposition or alienation including any

partition or testamentary disposition of property which

had taken place before the 20th day of December, 2004.”

25.

Equally, Section 6(5) notes that

“Nothing contained in this section shall apply to a

partition, which has been effected before the 20th day of

December, 2004.”

RFA(OS) 11/2010

Page 25

The 2005 amending act, thus, is unambiguous, that no past partition or

testamentary disposition of property is to be affected or reopened, in

order to include the newly created shares of female members of the

HUF in the coparcenary. The intention of Parliament was not to create

chaos by reopening previous family settlement, but rather, to indicate

that for all future actions, the rules of succession, and not

survivorship, would operate in default, and further, that female

members would be entitled to share just as their male counterparts.

Equally, however, the amending act clarifies what is meant by

‘partition’ in terms of Section 6, i.e. “any partition made by execution

of a deed of partition duly registered under the Registration Act, 1908

(16 of 1908) or partition effected by a decree of a court.”

Accordingly, only those partitions made by the execution of a duly

registered partition deed or a partition effected by a decree of a Court,

i.e. partitions recognized by Section 6 as valid, which have occurred

before the cut-off date identified, are saved from the operation of the

amended Section 6, which would, if operative, require a redistribution

of shares within the HUF. Having defined the expression ‘partition’ in

Section 6, Parliament clarified which partitions are left unaffected by

the amendment, and those that are susceptible to this change in the

statute, giving the Courts clear and unambiguous direction in this

regard. Thus, if a partition, as envisaged under the explanation to

Section 6(5) occurred before 20.12.2004, then only may the Courts

ignore the amended Section 6.

RFA(OS) 11/2010

Page 26

26.

Crucially, since the rights and shares of the parties are decided

as on the date of partition, it is important to determine the date of

partition. First, as discussed above, the notion that a partition occurs

as on the date of the death of a male member, and shares crystallize

into vested rights at that point in time, as held by the learned Single

Judge, is not the correct approach. That event (i.e. the death) only

determines how that person’s share will be divided amongst the

family members (either by survivorship or by succession), rather than

effecting any broad-based changes in the family holdings or effecting

a partition inter se that would hold against subsequent changes in the

family composition or changes in the law. Secondly, neither is the

proposition that the shares are defined at the time of filing of the suit

for partition correct. Rather, the HUF, and specifically, the

coparcenary, continues even after the filing of the suit. The filing of a

suit by itself does not mean that a partition has taken place, until a

decree of Court effects partition, or a registered deed of partition is

signed inter se the parties. Accordingly, the death or birth of family

members during the pendency of a suit quite obviously will affect the

shares in partition. Similarly, any change in law during the pendency

of the suit, as for example is the case with Section 6 of the HSA,

would affect the ultimate shares of the parties. A contrary conclusion

would not only fly in the face of the definition of ‘partition’ in Section

6(5), but would also mean, for example, that no partition suit can be

withdrawn after it is filed, a proposition which has been rejected on

various occasions.

RFA(OS) 11/2010

Page 27

27.

Indeed, this question has been considered by the Supreme Court

in Ganduri Koteshwaramma and Anr. v. Chakiri Yanadi and Anr.,

2011 (12) SCR 968. There, a suit for family partition was filed prior to

the 2005 amendment, and moreover, two preliminary decrees were

passed by the Trial Court on 19.03.1999 and 27.09.2003, indicating

the shares of the parties. Accordingly, the question before the

Supreme Court was:

“In light of a clear provision contained in the

Explanation appended to Sub-section (5) of Section 6, for

determining the non-applicability of the Section, what is

relevant is to find out whether the partition has been

effected before December 20, 2004 by deed of partition

duly registered under the Registration Act, 1908 or by a

decree of a court. In the backdrop of the above legal

position with reference to Section 6 brought in the 1956

Act by the 2005 Amendment Act, the question that we

have to answer is as to whether the preliminary decree

passed by the trial court on March 19, 1999 and amended

on September 27, 2003 deprives the Appellants of the

benefits of 2005 Amendment Act although final decree for

partition has not yet been passed.”

28.

In answering that question, Court held that neither the filing of

the suit nor a preliminary decree constitutes a partition within the

meaning of the amended Section 6. Thus, the newly created rights

would be available to the parties. Specifically, the Court noted:

“16. The legal position is settled that partition of a Joint

Hindu family can be effected by various modes, inter-alia,

two of these modes are (one) by a registered instrument

of a partition and (two) by a decree of the court. In the

present case, admittedly, the partition has not been

effected before December 20, 2004 either by a registered

instrument of partition or by a decree of the court. The

RFA(OS) 11/2010

Page 28

only stage that has reached in the suit for partition filed

by the Respondent No. 1 is the determination of shares

vide preliminary decree dated March 19, 1999 which

came to be amended on September 27, 2003 and the

receipt of the report of the Commissioner.

17. A preliminary decree determines the rights and

interests of the parties. The suit for partition is not

disposed of by passing of the preliminary decree. It is by

a final decree that the immovable property of joint Hindu

family is partitioned by metes and bounds. After the

passing of the preliminary decree, the suit continues until

the final decree is passed. If in the interregnum i.e. after

passing of the preliminary decree and before the final

decree is passed, the events and supervening

circumstances occur necessitating change in shares,

there is no impediment for the court to amend the

preliminary decree or pass another preliminary decree

redetermining the rights and interests of the parties

having regard to the changed situation.”

29.

Earlier, in S. Sai Reddy v. S. Narayana Reddy and Ors., (1991)

3 SCC 647, the question before the Supreme Court was whether the

insertion of Section 29A (by a State amendment to the HSA) meant

that the unmarried daughters in the HUF would be entitled to equal

shares vis-à-vis their brothers, after the preliminary decree of the Trial

Court had been made, and the appeal against it had been dismissed by

the High Court. The Trial Court rejected the claim by observing that

with the dismissal of the appeal by the High Court, the preliminary

decree had become final and the sisters was not entitled to indirectly

challenge the same. The High Court reversed this decision, and in

concurring, the Supreme Court held as follows:

“... The crucial question, however, is as to when a

partition can be said to have been effectedfor the

RFA(OS) 11/2010

Page 29

purposes of the amended provision. A partition of the

joint Hindu family can be effected by various modes, viz.,

by a family settlement, by a registered instrument of

partition, by oral arrangement by the parties, or by a

decree of the court

Since the legislation is beneficial and placed on the

statute book with the avowed object of benefitting women

which is a vulnerable section of the society in all its

strata's, it is necessary to give a liberal effect to it. For

this reason also, we cannot equate the concept of

partition that the legislature has in mind in the present

case with a mere severance of the status of the joint

family which can be effected by an expression of a mere

desire by a family member to do so. The partition that the

legislature has in mind in the present case is undoubtedly

a partition completed in all respects and which has

brought about an irreversible situation. A preliminary

decree which merely declares shares which are

themselves liable to change does not bring about any

irreversible situation. Hence, we are of the view that

unless a partition of the property is effected by metes and

bounds, the daughters cannot be deprived of the benefits

conferred by the Act.”

30.

The Supreme Court therefore, held that rights created in favour

of daughters by the 1956 Act would be operative, even though the

Trial Court had made a preliminary decree before the passage of the

Act, as the final rights are determined, and the partition effected,

only through a final decree. The rationale behind the specific

definition of ‘partition’ – as is clear from the above quote – is that

only such partition that results in an irreversible situation should be

considered as such. In all other cases, given the beneficial purpose of

Section 29A – and in this, of the amended Section 6 – rights created

in favour of Hindu women ought to be given effect to. Neither the

RFA(OS) 11/2010

Page 30

filing of a partition suit, nor an oral statement by a member of the

HUF, and certainly not a deemed partition (created only for a limited

effect to determine the rights of the deceased only) create any such

irreversible situation.

31.

This question also came before the Supreme Court recently in

Prema v. Nanje Gowda and Ors., 2011 (6) SCALE 28. In that case, a

male member of the family had instituted a suit for partition in 1989,

which was decreed in 1992. The female heir’s appeal against the

preliminary decree to the High Court was dismissed in 1999.

Meanwhile, the plaintiff had instituted final decree proceedings in

1999, in which the defendant (female heir) filed an application

seeking for an increased share in the property given the amendment

to Section 6A, HSA in Karnataka in 1994, i.e. after the institution of

the suit and preliminary decree. The Trial Court rejected the

application on the ground that the effect of Section 6A was not

retrospective. The High Court agreed with the Trial Court, but the

decision was overturned by the Supreme Court. Placing reliance on

the decision in Sai Reddy (supra), the Court overturned the

concurrent findings in the following terms:

“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 in view of the law laid down in

Phoolchand v. GopalLal (supra) and S. Sai Reddy v. S.

Narayana Reddy (supra), it was open to the Appellant to

claim enhancement of her share in the joint family

properties because she had not married till the

enforcement of the Karnataka Act No. 23 of 1994. Section

6A of the Karnataka Act No. 23 of 1994 is identical to

RFA(OS) 11/2010

Page 31

Section 29A of the Andhra Pradesh Act. Therefore, there

is no reason why ratio of the judgment in S. Sai Reddy v.

S. Narayana Reddy (supra) should not be applied for

deciding the Appellant's claim for grant of share at par

with male members of the joint family ...

14. We may add that 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 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. If in the interregnum

any party to the partition suit dies, then his/her share is

required to be 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 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.”

(emphasis supplied)

32.