CCCA/338/2004 of B. Chandrakala Vs A.Anuradha on 31 December 2014

1. AIR 1965 SC 289

2. AIR 1989 SC 879

3. 2006(8)SCC-581

4. AIR 1964 SC- 510

5. [1977] 3 SCC 99

6. 2007(6)SCC-401

7. 2001(5)ALT-130=(5)ALD–402

8. 2007(4)ALD-642

9. 2006(7)SCC-365

10. AIR 1957 SC-434=1957 SCR 452

11. AIR 1967 SC 569

12. 1929 MLJ 826

13. (1987)3 SCC 294

14. (1996) 3 SCC 644

15. 2009(6)SCC-99

16. AIR 2003 SC 1989=2003(9) SCC 606

17. AIR 1963 SC 1516=1964(1) SCR 980

18. AIR-2001-SC-965

19. (2003(5)-SCC-89

20. 1975(1)SCC 212

21. AIR-1976-SC-634

22. AIR-1969-SC-1144

23. AIR 1986 SC 1523

24. (1993) 1 SCC 645)

25. 2007(4)SCC-163

26. AIR-2003-SC-2322

27. AIR-2004-AP-174

28. 2009(9)-SCC-52

29. 2008(4) ALT, 56730. 1957-SCR-930

31. 1876-77 (2)AC-743

32. S.A.No.566 of 2011 with CAS/1762/2011 with CAS/498/2014 in SA/566/2011

33. 2012(5) Bom.C.R.210

34. AIR 1978 SC 1239

35. [1952] AC 109 at 132

36. AIR 1985 SC 716

37. AIR 1971 AP 363

38. AIR 1973 AP 58

39. (1964) 66 Bom LR 351

40. (1991) 4 SCC 647

41. AIR 1990 AP 263

42. 2002(6)ALD-415

43. Laws(APH)-2014(9)-43

44. AIR-2006 SC 3332= 2006(8)SCC-656

45.2002(6)ALD-415

46.2012(1)ALT-227

47.2007(5)ALT-447

48.2011(9) SCC-788=2012(1)ALT 29(SC)

49. AIR-2011-SC-2077

50.2007(1)CCC(SC)189

51. AIR 1967 SC 147052.AS No.497 of 1992, dt.20-06-2014

53. AIR 2010 Karnataka 124

54.2009(9)SCC-689

55.2008(4) KCCR 233356.2008(4) KCCR 2333

57.2014(2)CTC-113

58. AIR-1966-SC-1879

HONOURABLE SRI JUSTICE R.SUBHASH REDDY

AND

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO

Cross-Objections (SR)No.3879 of 2005

and

Cross-Objections (SR)No.13681 of 2005

in and

C.C.C.A.No.338 OF 2004

JUDGMENT(per Hon’ble Dr.Justice B.Siva Sankara Rao)

The appeal is filed by the 1[st] defendant of the suit, challenging the judgment anddecree in O.S.No.45 of 2001 on the file of the XI Additional chief Judge(Fast TrackCourt) City Civil Court, Hyderabad, dated 20.09.2004 showing the plaintiff as 1[st]respondent and the 2[nd] defendant as 2[nd] respondent to the appeal. The plaintiff-1[st]respondent maintained cross-objections vide Cross-Objections(SR). No.3879 of2005 and the 2[nd] defendant-2[nd] respondent also maintained separate cross-objections vide Cross-Objections(SR) No.13681 of 2005.

2. The plaintiff filed the suit for partition and separate possession of 1/3[rd] share in theplaint schedule property comprising of 3 items viz., houses bearing municipal No.1-6-1012; item No.2 house bearing municipal Nos.1-6-1021, 1027 to 1029; and itemNo.3 houses bearing Nos. 1-6-936, 954 and 956 which are all located atZamisthanpur, Hyderabad. The appeal lis and cross objections are impugning thepreliminary decree and judgement, granting 1/6[th] share in favour of the Plaintiff, withcosts against 2[nd] defendant and with no profits. The parties hereinafter are beingreferred as they are arrayed before the trial Court for sake of convenience.

3. Few of the relevant facts not in dispute are that, the plaintiff-A.Anuradha, W/o.Nageshwar and the 2[nd] defendant-B.Raghunandan are the issues of the 1[st]defendant-Chandrakala and her late husband Rama Rao. Father of Rama Rao waslate Ramalingaiah, s/o. late Ramaiah. The father of the plaintiff and 2[nd] defendant byname Rama Rao died in September,1997, but for the controversy as to he diedintestate or testate. The marriage of the plaintiff was performed on 23.04.1978.

4. The plaintiff`s claim for partition and separate possession of 1/3[rd] share inall the 3 items of the plaint schedule property is on the grounds that items Nos.1 and2 supra are that of late Ramaiah-(great grandfather of the plaintiff and 2[nd] defendantand grandfather of Rama Rao) and item No.3 was purchased with the nucleus bylate Rama Rao. It is also her claim otherwise that the item-1 of the plaint scheduleproperty in her possession was given to her at the time of her marriage by her father,orally towards Pasupukumkuma.

5. (a). The defendants 1 and 2 in their separate written statements contestedthat the suit is not maintainable even otherwise by virtue of the bar under Section 23of the Hindu Succession Act (hereinafter being called HS Act). It is the furthercontest of the defendants that the item No.3 of the plaint schedule property is not theancestral or coparcenary property but for self-acquired property of late Rama Rao,vide sale deed dated 29.11.1966 and they also denied giving of the item-1 of theplaint schedule property to plaintiff towards Pasupukumkuma, in saying herpossession of said Item-1 is as tenant.

5. (b). The contest of the 2[nd] defendant is that item Nos.1 and 2 of the plaintschedule properties are not even the properties of late Ramaiah but of the son of lateRamaiah by name Ramalingaiah, who bequeathed item No.2 of the plaint schedulein favour of his son Rama Rao, under unregistered will dated 10.03.1953 (Ex.B.5and its English translation Ex.B.6) and Rama Rao, in turn, bequeathed the said itemNo.2 as well as half share in items 1 and 3 of the plaint schedule to the 2[nd]defendant and the remaining half share in items 1 and 3 also bequeathed to the 1[st]defendant under unregistered will dated 04.07.1997(Ex.B.7).

5. (c). It is however the contest of 1[st] defendant that her late husband RamaRao in his lifetime had given all the three items of the plaint schedule to her and sheis thereby the absolute owner and neither plaintiff nor 2[nd] defendant got any rightsover the same.

6. (a). Before the trial Court from the respective pleadings, the plaintiff was examined as P.W.1 being the sole witness and exhibited Exs.A.1 to A.9 which arethe copies of police report, certificate of market value of suit property, extracts ofassessment register, invitation letter for Upanayanam and marriage and propertyvaluation certificates issued by Khasim Peeran-Registered valuer for the items. Onbehalf of the defendants, 1[st] defendant as D.W.1 and 2[nd] defendant as D.W.2 cameto the witness box and they cause examined one P.Kotaiah-the so called firstattestor of Ex.B.7 will and placed reliance upon Exs.B.1 to B.7 certified copies ofrental deed, sketch plan of H.No.1-6-1012, certified copy of judgments inR.C.No.597 of 1993 and R.A.No.524 of 1995, unregistered will, dated 10.03.1953,English translation of it and also the unregistered will, dated 04.07.1997.

Conclusion

6. (b). From said evidence with reference to the pleadings supra, the trialCourt in answering the issues viz., “i) Whether item No.3 of plaint schedule is separate property of RamaRao?

ii) Whether the plaintiff is entitled for partition of the plaint scheduleproperties and possession of her 1/3[rd] share as prayed for?

iii) Whether the plaintiff is entitled to future profits with respect to hershare in the plaint schedule properties from the date of suit till deliveryof possession as prayed for? &

iv) To What relief?”-

held that the 1[st] defendant in her cross-examination by plaintiff at page No.2admitted that Rama Rao-(her husband) was neither employee nor have any otheravocation but for maintaining the family with the help of rents realizing from the plaintschedule items 1 and 2 and with the help of the incomes therefrom acquired theplaint schedule item No.3. The Exs.A.3 to A.5 show that all the three items of theplaint schedule house properties are assessed in the name of Ramaiah-(greatgrandfather of plaintiff and 2[nd] defendant) and even to say item No.3 was purchasedby Rama Rao, the sale deed is not filed by the defendants and their claim isinconsistent for 2[nd] defendant-D.W.2 also deposed in his cross-examination that

item No.3 of the plaint schedule was also acquired by Rama Rao from hisgrandfather-Ramaiah. Thus, it was held that all the three items are not the self-acquired properties of Rama Rao but for ancestral properties. The trial Court alsoheld that so far as the wills set up by the defendants under Exs.B.5 and B.7, the 2[nd]defendant-D.W.2 in his cross-examination by 1[st] defendant deposed that his fatherRama Rao in his lifetime has given all the plaint schedule item Nos.1 to 3 to the 1[st]defendant and the 1[st] defendant became owner of the properties after death ofRama Rao. Said version is opposed to the very plea of the exclusive right set up bythe defendants under the so called bequeaths in the will-Ex.B.7 said to have beenexecuted by Rama Rao for items 1 and 2 equally in favour of the defendants and foritem No.3 exclusively in favour of the 2[nd] defendant. Further, due execution and alsoexistence of those wills from respective dates is not even proved as required by lawand any of those wills not referred in Ex.B.1 rental deed, dated 13.10.1992 or inExs.B.3 and B.4 certified copy of judgments in R.C.No.597 of 93, dt.14.08.1995 andR.A.No.524 of 95, dt.08.12.1999. Apart from it, Ex.B.5 unregistered will deed, dated10.03.1953 is on plain paper with the thumb marks of executants in ink which doesnot bring out even one line (ridges) of the thumb and the will is not proved asrequired under Section 68 and 69 of the Indian Evidence Act and Section 63 of theIndian Succession Act and even coming to Ex.B.7 will deed, dated 04.07.1997 itwas on Rs.100/-stamp paper and three ledger sheets which disclose at page 3 atlast line of the matter was typed on already signed paper and D.W.3`s evidence isclear that it is a procreative and falsely set up one. D.W.2 and D.W.3 evidenceextracted in the judgment of the trial Court at para-19 in regard to the Exs.B.5 andB.7 wills also was with observation of untrustworthy and belying of said wills byholding in para-20 of the judgment as created and brought into existence for thedefence sake.

7. It is therefrom concluded by the trial Court that as the plaint scheduleproperties are the coparcenary properties of Rama Rao and 2[nd] defendant, each gotundivided half and the bar under Section 23 of the Hindu Succession Act for

claiming partition of dwelling houses by daughter till partition sought by son has noapplication as the schedule properties are not all exclusive dwelling houses of thejoint family but with mulgies and also leased out. The trial Court ultimately decreedthe plaintiff’s suit, though sought for 1/3[rd,] only for 1/6[th] out of the plaint scheduleitems 1 to 3 with equal share to the 1[st] defendant-wife of Rama Rao and to the 2[nd]defendant(son of Rama Rao) out of the half share of Rama Rao in the coparcenaryand that remaining share is of the 2[nd] defendant (for 2/3[rd] to the 2[nd] defendant) bydisbelieving of giving of any of the properties by Rama Rao to the plaintiff or 1[st]defendant. The trial court however did not choose to grant any profits past or futurein favour of the plaintiff saying she is in possession of item No.1 of the plaintschedule and she is not paying any rents for the claim even by the defendants of heras tenant, but for awarded costs of the suit that too only against the 2[nd] defendant-brother of plaintiff without awarding any costs against the 1[st] defendant-mother ofplaintiff and 2[nd] defendant.

8. It is impugning said decree and judgement of the trial court supra, the appeal andtwo sets of cross objections are filed, Viz., 8(a). The 1[st] defendant-mother of plaintiff and 2[nd] defendant filed the mainappeal contending that the trial Court went wrong in decreeing the suit even for 1/6[th]share in favour of plaintiff out of the plaint schedule items 1 to 3 instead of holdingthat Rama Rao during his lifetime handed over all the plaint schedule items 1 to 3 tothe 1[st] defendant and she became owner with absolute rights and neither plaintiffnor 2[nd] defendant entitled to any share and should have seen that the plaintiff is onlya tenant of item No.1 of the plaint schedule and in the order in R.C.No.523 of 2002,there was a finding to that effect, that the trial Court having held Exs.B.5 and B.7wills are created that was by 2[nd] defendant, should have dismissed the suit of theplaintiff for her disentitlement to the very claim for partition by virtue of bar underSection 23 of the HS Act.

impugning the granting of only 1/6[th] share and for not granting 1/3[rd] share by treatingthe plaintiff as a coparcener at par with her brother-(2[nd] defendant) as per Section29-A of the Hindu Succession A.P. Amendment Act,13 of 1986 (hereinafter called‘AP HS Amended Act’) and for not granting of profits. It is the submission by learnedcounsel for the plaintiff-cross-objector supra that the Hindu Succession AmendedAct,39 of 2005 (hereinafter called ‘HS Amended Act,2005’) came into force pendingthe appeal by virtue of which the plaintiff is also a coparcener with the 2[nd] defendantand the plaintiff is thus entitled to the reliefs as prayed for in the suit and there is nobar for the suit otherwise from Section 23 of the HS Act, since deleted by the HSAmended Act,2005.

8(c). The Cross-Objections(SR) No.13681 of 2005 of the 2[nd] defendant is mainlyimpugning the awarding of costs against him, saying the trial Court should not haveawarded costs much less against him.

9. Heard the learned counsel for the appellant as well as the respectiveCross-Objectors at length and perused the material on record.

10. Now the common points that arise for consideration in deciding theappeal as well as both the Cross-Objections are:-

i). Whether the plaint schedule items 1 and 2 are all coparcenaryproperties of Rama Rao and 2[nd] defendant-(son of Rama Rao) anditem No.3 is also form part of the coparcenary and not the self-acquiredproperty of Rama Rao; if so, whether plaintiff is also a coparcener withequal rights and if not, to what share she is entitled therein?

ii). Whether the plaint schedule Item-1 was given to the plaintiff orallyas Pasupukumkuma at the time of her marriage and with what proofand if so with what consequences?

iii). Whether the 1[st] defendant is entitled to plaint schedule propertiesabsolutely and if so, whether the trial Court’s decree and judgment forpartition granting 1/6[th] share to the plaintiff is unsustainable?

Succession Act,1956?

v). Whether awarding of costs against the 2[nd] defendant isunsustainable?

vi). To what extent this court while sitting in appeal against the trialCourt`s impugned judgement and decree can interfere and with whatobservations and conclusions?

vii). To what relief?

Point Nos.i-vi:

11. As point Nos. i-vi are interrelated and to avoid repetition of facts, all the sixpoints are taken up together to answer. So far as Exs.B.5 and B.7 wills concerned, itwas held by the trial Court as not proved from the evidence on record. It is notproved for the reasons that, it is not only the existence and acting upon of theExs.B.5 and B.7 wills, but also the proof as required by Sections 68 to 71 r/w.Sections 47, 67 and 100 of the Indian Evidence Act, Section 63 of the IndianSuccession Act and Section 3 of the Transfer of Property Act of due execution andattestation and in sound and disposing state of mind with free will and volition andas a last will and testament with absolute right over the entire plaint scheduleproperties to bequeath for not even exclusive properties of Rama Rao to make anybequeaths for the same and not even that of his father for his making any bequeaths,particularly Items 1 & 2 of the plaint schedule are the ancestral properties and Item 3of the plaint schedule also part of the coparcenary for acquired with the ancestralproperties undisputedly. There is also a presumption for the properties acquired withno separate funds would constitute the joint family property if it is shown that the jointfamily has sufficient nucleus-vide K.V.Narayanaswami Iyer Vs. K.V.Rama KrishnaIyer and there is a presumption of jointness in a family governed by' HinduMitakshara Law and that the initial burden lies on the party claiming disruption if anyin the joint Status-vide Shankararao DaijiSaheb Shinde Vs. Vithalrao GanpathroShinde. When it is the coparcenary property and the 2[nd] defendant being the son ofRama Rao got right by birth for undivided half share therein, there is no right to makebequeath for the entire property as if his own by said Rama Rao even from the

combined reading of Sections-6,8 & 30 of the HS Act, that though a coparcenaryproperty in the hands of sole surviving coparcener is exclusive and disposableproperty, the moment a son is born the property automatically reconverts ascoparcenary-vide Sheela Devi Vs. Lal Chand. There is a propounder’s influencealso from the very evidence of D.W.2-2[nd] defendant of he was present andparticipated, if at all, otherwise proved the so called execution. A perusal of theevidence of D.Ws.2 and 3 regarding execution and existence of the will is itself incloud and their evidence is highly incredible to place any reliance. There is nothingeven to show the so called will Ex.B.7 dated 04.07.1997 was ever seen the light ofthe day and ever acted upon much less any mutation pursuant to the bequeathsthereunder in the name of defendants 1 and 2 respectively and equally for allegedwill Ex.B5. Even to claim by the 2[nd] defendant of the item No.3 is bequeathed byRama Rao exclusively for him, it is the admission in the evidence on record from thatof D.Ws.1 and 2 that, Rama Rao has no avocation and no independent means butfor maintaining the family from the rental income of items 1 and 2 of the plaintschedule properties with mulgies therein and he acquired item No.3 therefrom. Infact, there is further version from their evidence that item No.3 is also not acquired byRama Rao but it is the ancestral property of Rama Rao’s grandfather-Ramaiah,along with items 1 and 2 and the same is also established from the mutation in thename of said Ramaiah. When such is the case, the making of any bequeath forentire item No.3 of plaint schedule by Rama Rao to the 2[nd] defendant (son) does notarise, which itself shows there was no any voluntary execution of any will as a lasttestament and in sound and disposing state of mind by making any bequeath byRama Rao that too including for item Nos.1 and 2 by giving half share out of it to 2[nd]defendant and half share remaining to the 1[st] defendant by totally ignoring withouteven giving of any little extent at least towards Pasupukumkuma to the plaintiff for noany property after marriage of plaintiff given to her by her father towardsPasupukumkuma as per the defendants in their saying, the plaintiff`s claim of Item 1given to her as Pasupukumkuma is not correct and the alleged will no way evenreflects the same. All these facts and circumstances cumulatively show as rightlyconcluded by the trial Court though not in specific words with specific discussion, ofExs.B.5 and B.7 are introduced by creation by the 2[nd] defendant to have benefittherefrom if possible. Once the Ex.B.5 and B.7 not proved and once all the plaintschedule items 1 to 3 are proved as ancestral properties in the hands of Rama Rao and Rama Rao died intestate in September,1997 leaving behind him the plaintiffand defendants being daughter, wife and son of him and leaving his interest in theplaint schedule coparcenary properties and as the 2[nd] defendant also did notdispute the trial court`s finding on Ex.B.5 and B.7 wills as not proved and all theplaint schedule items 1 to 3 are proved as coparcenary properties, there is nothingmore to discuss in this regard in the appeal lis.

11-A. When such is the case, the claim of 1[st] defendant that she is absoluteowner of all the plaint schedule properties allegedly given absolutely to her by herlate husband Rama Rao in his lifetime orally is even untenable for having noabsolute rights over the plaint schedule coparcenary properties for the 2[nd] defendantalso was one of the coparceners with his father Rama Rao with equal rights by birth;though the father manager can give a reasonable extent of the joint family propertyto the daughter at the time of marriage or even later to it at any time till actualpartition-as per para-18 of thedecision in- Guramma Bhratar ChanbasappaDeshmukh Nagamma Bhratar Ghanbasappa Deshmukh Vs. MallappaChanbasappa Guramma Bhratar Chanbasappa same cannot extend to 1[st]defendant-wife of Rama Rao, but for if at all to plaintiff-daughter of Rama Rao. Thusat best Rama Rao`s undivided half share could be conveyed by him if at all to the 1[st]defendant, that too for any transfer of immovable property worth Rs.100/-and above,must be in writing and by regd. document and otherwise void, equally gift ofundivided interest is also void. When it is not even in recognition of any pre-existingright to 1[st] defendant-for that is not even her case-vide decision- V.Tulsamma Vs.Shesha Reddy, and not by assignment and not even by any complete familysettlement of any disputes in existence or in anticipation or by partition-cumsettlement to validate oral transaction-vide decision- M.Venkataramana Hebbar Vs.M.Rajagopal Hebbar, it could when be only by gift; and a gift of immovable propertyof any value when requires by document in writing with stamp duty and compulsoryregistration, including from Sections 123 and 122 of the Transfer of Property Actread with sections 17 and 49 of the Registration Act, any such oral gift/settlement isinvalid and no rights created thereunder including from the Full Bench decision ofour Hon’ble High Court in Gandevalla Jayaram Reddy Vs. MokkalaPadmavathamma that was also followed in later decisions of this Court including inNangineni Radhakrishna Murthy Vs. Kanneganti Nagendramma. No doubt,contra to the Full Bench decision of this Court in Gandevalla Jayaram Reddy

(supra), though not referring to it- much less by expressly overruling, the Apex Courtin the later expression reported in Government of A.P. Vs. M. Krishnaveni, laiddown, in consonance with the earlier expressions of the Apex Court in KamaladeviVs. Bachulal Quipto,Guramma Bhratar Chanbasappa Deshmukh NagammaBhratar Ghanbasappa Deshmukh(supra), Perumalakkal v. Balakrishuanand ofthe Full Bench judgment of the Madras High Court of the year,1929- that propertygifted by father to his daughter at the time of or after her marriage per se to an oldaged custom prevailing in the area of Andhra Pradesh and as per the said familyarrangement at the marriage of the daughters R and K, the object is as a familyarrangement to protect the family from long drawn litigation or perpetual strifes,which mars the unity, solidarity of the family and create hatred and bad bloodbetween the members of the family; other way, it promotes legal justice throughwider distribution of wealth, therefore, such family arrangements have to beconstrued widely. In so saying it was held further that, for family arrangement, if it isnot confined only between persons having legal right to the property, for which adocument, which is in the nature of memorandum of such oral family partition validand when filed before the court for its information, which is not compulsorilyregisterable and therefore can be used in evidence of the family arrangement asbinding and final between the parties to create rights there under, saying there underabsolute rights are conferred on the female under Section 14(1) of HinduSuccession Act, which speaks that for any property possessed by a female Hinduwhether acquired before or after commencement of the HS Act,1956 shall be held byher as full owner thereof in holding that by virtue of section 14(1) of the Act. Thus, adaughter under the oral Pasupukumkuma gift as family arrangement got absoluterights from the possession and enjoyment as per the recognized custom. However,coming to the facts on hand, it is not even the claim of 1[st] defendant that it was atransfer for consideration by her husband Rama Rao of his undivided coparcenaryinterest under Section 30 of HS Act in her favour. Otherwise, it could be bysettlement/gift. Even a gift/settlement of coparcenary undivided interest is void underthe south Indian Mitakshara law; no doubt, if it is to one of other undividedcoparceners and not with consent of others, then it can be treated as arelinquishment for the benefit of all other undivided coparceners-as held by the ApexCourt in Thamma Venkata Subbamma(dead) by Lr. Vs. Thamma Rattamma andothers. The 1[st] defendant is not at all a coparcener and the plaintiff also even not a coparcener by virtue of AP HS Amended Act. There is no any proof for the claim of1[st] defendant that all the plaint schedule properties given absolutely to her by herlate husband Rama Rao in his lifetime orally. Likewise, there is no any proof for theclaim of plaintiff that Item-1 of the plaint schedule property was given absolutely toher by her late father Rama Rao in his lifetime orally towards Pasupukumkuma.There is no even mutation of properties in municipal records in the name of 1[st]defendant or plaintiff to say any little basis for their respective claims. Thus, the so-called oral transfer of all plaint schedule properties set up by the 1[st] defendant isinvalid and unenforceable. Equally, the so-called oral transfer or assignment asPasupukumkuma of item-1 of the plaint schedule properties set up by the plaintiff iswith no proof and thereby untenable. Thus, there is nothing to interfere with thefinding of the trial court belying said claim of the 1[st] defendant for the item Nos.1 to 3and of the plaintiff for the Item-1 of the plaint schedule.

11-B. Now coming to decide any bar for the plaintiff`s suit claim to maintainfrom Section 23 of the HS Act,1956 even after the same is deleted from the statutebook by the HS Amended Act,2005 concerned, Section 23 of the HS Act,1956 nodoubt disentitles a female heir to ask for actual partition in respect of adwelling house wholly occupied by a joint family until the male heirs choose todivide their respective shares therein. It is to mean bar is not for filing suit forpartition and obtaining of preliminary decree, but for obtaining final partition byactual division and separation as per the settled law. No doubt in NarashimahaMurthy Vs. Susheelabai(Smt)- the Apex Court held that said bar applies even thereis sole male member. However, the bar has no application for all buildings but forthe one in use for dwelling by the joint family that too, bar is for actual partition andnot for even to file suit and get preliminary decree for partition.

12. In fact, the bar has no longer to survive to the claim of partition by acoparcener and even a daughter coparcener under the AP HS Amended Act oncethe same applies, from its wording in Section 29A as the partiable propertyincludes even a dwelling house. The suit was filed in December,2000 and thepreliminary decree was passed in September,2004 (which is prior to the Hindu Succession Amended Act,39 of 2005 came into force) and the AP HS AmendedAct,13 of 1986 has no application even the plaint schedule items Nos.1 to 3 arecoparcenary properties as marriage of the plaintiff was performed before 5[th]September,1985. In fact the plaint schedule house properties all not in theoccupation of the joint family for dwelling as mostly let out with mulgies and the baris not for filing suit for partition and obtaining of preliminary decree, but for obtainingfinal partition by actual division and separation as per the settled law. The trial courtwas thus right in holding that the 2[nd] defendant is entitled to 2/3[rd] share and plaintiffand 1[st] defendant respectively entitled to each 1/6[th] share in passing the partitionpreliminary decree by granting 1/6[th] share each to the plaintiff and 1[st] defendantrespectively and 2/3[rd] share to the 2[nd] defendant in holding that Rama Rao diedintestate. Furthermore, Section 23 of the HS Act is deleted by the HS AmendedAct,2005 and as such after the HS Amended Act,2005 came into force pending theappeal, there is no such bar to survive for female to seek partition of dwelling houseas held by the Apex Court in G.Sekhar Vs. Geetha.

13. Now coming to the claim of plaintiff that she is though not coparcener toclaim right by birth at par with her brother and father being a daughter as if a son, byvirtue of the HS AP Amended Act for her marriage performed in the year,1978 April,prior to the HS AP Amended Act,13 of 1986 which came into force w.e.f.5-9-1985;thfrom the HS Amended Act,2005 came into force on 9 September,2005 by which(Section 6 of the principal Act was substituted by new section, providing fordevolution of interest in coparcenary property to a daughter of a coparcener whenthere was no any registered partition of the properties before December, 2004), shebecame a coparcener with her brother to claim equal rights with him as right by birthto redefine and refix the shares and to grant the 1/3[rd] share in the plaint scheduleproperties as claimed in the suit and the court has to take into consideration thesubsequent events, facts and change of law to mould the reliefs. To decide thesame, it is necessary to discuss the scope of law with reference to the HS APAmended Act,1986 and the HS Amended Act,2005.

appreciation of evidence in special reference to appeals and in moulding or grant ofreliefs; it was held by the Apex Court in Banarsi V s Ramphal and Pannalal VsState of Bombay(5 judges bench) and also as per the subsequent expressionsplacing reliance on the above in Santhosh Hazari Vs Purushottam Tiwari, MadanLal Vs Yoga Bai, Harihar Prasad Singh Vs Balmiki Prasad Singh, Koksingh VsDeokabai and Gaisi Ram Vs Ramji Lal that, 1[st]appellate Court must re-appreciate(appreciate afresh) entire evidence like in a suit in giving its findings supported byreasons as to decide the lis and therefrom to find how far the decision of the trialcourt on any of its findings and conclusions are correct or incorrect, including forconfirmation or reversal of said findings of the trial Court; not only to pass an order ordecree that the trial court ought to have passed, but also while sitting in appealagainst, irrespective of the appeal filed is challenging even part of the order ordecree of the trial court, to grant any further decree or order within the scope of relief,though not beyond, as the case may require within the facts and circumstances; andany finding is also left open to attack by the respondents irrespective of no cross-objections, though no additional relief the respondents to the appeal can claimwithout cross-objections. For that the appellate Court is conferred with powers ofwide amplitude under Order XLI Rules 22,24 and 33 CPC so as to do completejustice between the parties and to prevent to the extent possible scope for furtherlitigation and also to give finality to the lis and the power includes the subsequentevents to take note of in so moulding the reliefs and such power is unfettered tomake whatever order it thinks fit even between co-respondents, for ordinarily cross-objections between co-respondents they do not prefer, but for the three limitations onsuch power to say no order against a party not before the Court to be passed, partiesif given up a claim not to revive on its own and not to grant more relief than what trialcourt granted to the party with no cross objections to that extent, for that was madefinal.

15. Now coming to consider the scope of the Hindu law on survivorshipand succession with codification – Prior to the HS Act,1956 ‘Shastric’ (HinduCanonical) and customary laws that varied from region to region governed theHindus. Consequently, in matters of succession also, there were different schools,

like Dayabhaga in Bengal in eastern India and the adjoining areas; Mayukha inBombay, Konkan and Gujarat in the western part; Marumakkattayam or Nambudri inKerala in far south; and Mitakshara in other parts of India, with slight variations.Mitakshara school of Hindu law recognises a difference between ancestral propertyand self-acquired property. It also recognises an entity by the name of “coparcenary”which consists of coparceners as its members.A coparcenary is a legal institutionconsisting of three generations of male heirs in the family-Gowli Buddanna Vs.Commissioner of Income-Tax, Mysore. Thus, Coparcener is a person who sharesequally with other members of the Coparcenary in the inheritance of an undividedestate or in the right to it. For a male member to become coparcener, the existence ofCoparcenary is a pre-requisite, without which merely because he is a male personand member of joint family, he cannot be considered as coparcener. Every suchmale member on birth becomes a member of the coparcenary, where coparcenaryexists. This means that no person’s share in coparcenary property can bedetermined with certainty. It diminishes on the birth of a male member and enlargeson the death of a male member. Any coparcener has the right to demand partition ofthe joint family. Once a partition takes place, leave about the coparcenary ofremaining undivided members to continue, a new coparcenary would come intoexistence, namely the partitioned member and his next two generations of males.For this reason, coparcenary rights do not exist in self-acquired property, which wasnot thrown into common hotchpotch of the joint family-(Doctrine of blending), vide-Andhra Pradesh & Ors. Vs. Union of India. Thus the concept of a birthright-(Survivorship), at which a person acquires rights on his birth even if the ancestor isstill alive is fundamental to an understanding of the coparcenary. In fact, the birth of amale child diminishes the right of the ancestor instantly, as each coparcener has anequal share in the undivided whole. As contrasted with this, inheritance bysuccession, whether testamentary or intestate, is a right that accrues on the death ofa person. Succession can only be in that property which a man leaves on his death.Until then, a person has an unrestricted right to enjoy the property or alienate it.

15-A. The HS Act,1956 was the first law to provide a comprehensive anduniform system of inheritance among Hindus and to address gender inequalities inthe area of inheritance–it was therefore a process of codification as well as a reform at the same time. Prior to this, the Hindu Women’s Rights to Property Act,1937 inrelation to dwelling house, that was extended to agricultural lands also by virtue ofthe Madras Amended Act,26 of 1947, was in operation, vide-Chintamani Ammal Vs.Nandgopal and though this enactment was itself radical as it conferred rights ofsuccession to the Hindu widow for the first time, it also gave rise to lacunae whichwere later filled by the HS Act,1956-the first post-independence enactment ofproperty rights among Hindus – applies to both the Mitakshara and the Dayabhagasystems, as also to persons in certain parts of South India previously governed bycertain matriarchal systems of Hindu Law such as the Marumakkattayam,Aliyasantana and Nambudri systems.

15-B. The main scheme of the HS Act,1956 is:

1. The hitherto limited estate given to women was converted into absoluteone. Under the old Hindu Law only the “stridhana” (properties gifted to her atthe time of marriage by both sides of the family and by relatives and friends)was the widow’s absolute property and she was entitled to the other inheritedproperties only as a life-estate with very limited powers of alienation, if at all.Even under the 1937 Act, the concept of “limited estate” continued. Section 14of the Hindu Succession Act removed the disability of a female to acquire andhold property as an absolute owner, and converted the right of a woman inany estate already held by her on the date of the commencement of the Act asa limited owner, into an absolute owner. The provision is retrospective in thatit enlarged the limited estate into an absolute one even if the property wasinherited or held by the woman as a limited owner before the Act came intoforce.

2. Female heirs other than the widow were recognized while the widow’sposition was strengthened.

3. The principle of simultaneous succession of heirs of a certain class wasintroduced.

4. In the case of the Mitakshara Coparcenary, the principle of survivorshipcontinues to apply but if there is a female or male claim through female in theline of class-1 heirs of the schedule, the principle of succession is applied soas not to exclude her. By virtue of which on the death of a member of acoparcenary, the property devolves upon his mother, widow and daughter,along with his son etc., by testamentary or intestate succession, as the casemay be, and not by survivorship under Section 6. This rule confers on thewomen an equal right of succession with the male member of the joint familyunder Section 8. However, when the proviso to Section 6 applies, there is nodisruption of joint family status as the proviso creates a fiction so that personswho are to inherit by succession are identified to separate that share.

5. Remarriage, conversion and unchastity are no longer held as grounds for disability to inherit.

6. Even the unborn child, son or daughter, has a right if s/he was in the wombat the time of death of the intestate, if born subsequently.

15-C. As was prior to, even after the HS Act,1956 the daughter in a HinduJoint Family governed by Mitakshara law was not considered as coparcener.Though, the HS Act revolutionized the previously held concepts on rules ofinheritance to some extent, it has its own flaws while dealing with property rights ofwomen since it still does not give the right to the daughter of a coparcener in a Hindujoint family to be coparcener by birth in her own right in the same manner as the sonor to have right of claim by birth. In fact, the HS Act did not deal with devolution ofinterest in the coparcenary property. Section 6 of the HS Act made it clear that, whena male Hindu dies after the commencement of the Act, having at the time of hisdeath an interest in a Mitakshara coparcenary property, his interest in the propertyshall devolve by survivorship upon the surviving members of the coparcenary andnot in accordance with the Act. However, the proviso to the said Section speaks that,if a male Hindu dies leaving behind a surviving female relative specified in Class I ofthe Schedule or a male relative specified in that class who claims through suchfemale relative, the interest of the deceased in the Mitakshara coparcenary propertyshall devolve by testamentary or intestate succession, as the case may be, underthe Act and not by survivorship. The concept of the Mitakshara coparcenary propertyretained under Section 6 of the HS Act has not been amended ever since itsenactment by continued to persist the inequality between a son and a daughter till1985-86, even by any state. It is for the first time the then State of Andhra Pradeshbrought the amendment by the Act,13/1986-(HS AP Amended Act) w.e.f. 5thSeptember,1985 to the HS Act and the same mostly followed by a few states in Indianamely, Tamil Nadu-w.e.f.25[t h ]March,1989; Maharashtra-w.e.f.22[nd] June,1994;Karnataka-w.e.f.30th July,1994a n d if not also by some other States, havingconsidered the fact that a daughter needs to be treated equally with son both in theeconomic and social spheres and particularly to eradicate the evils of dowrydemands and harassment after marriage at in-laws family. In so far as the State ofKerala concerned, it is the Kerala Joint Hindu Family System(Abolition) Act,1975-which is an independent statute and not an amendment to the Hindu Succession Actand came into force w.e.f. 01-12-1976, abolishes joint family system among Hindus in the State of Kerala, in respect of a tarwad or thavazi, a kutumba or kavaru, anillom and an undivided Hindu family governed by the Mitakshara law. Section 3 ofthe Act declares that on and after its commencement, birth in a family would not giverise to rights in property.

15-D. This HS AP Amended Act came into force retrospectively w.e.f.05.09.1985 is by incorporation of Chapter II-A in the HS Act after section 29 andbefore Section 30 to the existing provisions under the HS Act,30/1956 dt.17-06-1956, additionally as Section 29-A to C, with overriding effect over Section 6 directlyand over Section 23 indirectly.

Section 29-A to C of the HS AP Amended Act, which speaks of equalrights to daughter in coparcenary property read that:

Section 29A- Notwithstanding anything contained in Section 6 of theAct,(HS Act,1956)-

(i) .In a Joint Hindu Family governed by Mitakshara Law, the daughter of acoparcener shall by birth become a coparcenerin her own right in the samemanner as the son and have the same rights in the coparcenary property as shewould have had-if she had been a son, inclusive of the right to claim bysurvivorshipand shall be subject to the same liabilities and disabilities in respectthereof as the son;

(ii) .At a partition in such a joint Hindu Family the coparcenary property shall beso divided as to allot to a daughter the same share as is allotable to a son:

Provided that the share which a pre-deceased son or a pre-deceased daughterwould have got at the partition if he or she had been alive at the time of thepartition shall be allotted to the surviving child of such predeceased son or ofsuch pre-deceased daughter; Provided further that the share allotable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if such child had been alive at thetime of the partition, shall be allotted to the child of such pre-deceased child ofthe pre-deceased son or of the pre-deceased daughter as the case may be;

(iii) .Any property to which a female Hindu becomes entitled by virtue of theprovisions of clause(i) shall be held by her with the incidents of coparcenaryownership and shall be regarded not-withstanding anything contained in this Actor any other law for the time being in force, as property capable of beingdisposed of by her by will or other testamentary disposition;

(iv) .Nothing in clause(ii) shall apply to a daughter married prior to or to a partitionwhich had been effected before the commence- ment of HinduSuccession(Andhra Pradesh Amendment)Act,1986.

Section 29B- Interest to devolve by survivorship on death- When a female Hindu dies after the commencement of the HinduSuccession(Andhra Pradesh Amendment)Act,1986 having at the time of herdeath an interest in a Mitakshara coparcenary property, her interest in theproperty shall devolve by survivorship upon the surviving members of thecoparcenary and not in accordance this Act.

Provided that if the deceased had left any child or child of a predeceased childthe interest of the deceased in the Mitakshara coparcenary property shalldevolve by testamentary or intestate succession as the case may be, under thisAct and not by survivorship.

Explanation-1:For the purposes of this section, the interest of a female HinduMitakshara coparcener shall be deemed to be the share in the property thatwould have been allotted to her if a partition of the property had taken placeimmediately before her death irrespective of whether she was entitled to claimpartition or not.

Explanation-2: Nothing contained in the proviso to this section shall be construedas enabling a person who, before the death of deceased, had separated himselfor herself from the coparcenary or any of his or her heirs to claim on intestacy ashare in the interest referred to therein.

Section 29C- Preferential right to acquire property in certain cases-

1. Where, after the commencement of the Hindu Succession(AndhraPradesh Amendment)Act,1986 an interest in any immovable property ofan intestate or in any business carried on by him or her, whether solely orin conjunction with others devolves, under section 29A or section 29-Bupon two or more heirs and any one of such heirs proposes to transfer hisor her interest in the property or business, the other heirs shall havepreferential right to acquire the interest proposed to be transferred.Pradesh Amendment)Act,1986 an interest in any immovable property ofan intestate or in any business carried on by him or her, whether solely orin conjunction with others devolves, under section 29A or section 29-Bupon two or more heirs and any one of such heirs proposes to transfer hisor her interest in the property or business, the other heirs shall havepreferential right to acquire the interest proposed to be transferred.

2. The consideration for which any interest in the property of the deceasedmay be transferred under this section shall in the absence of anyagreement between the parties, be determined by the court, on applicationbeing made to it in this behalf, and if any person proposing to acquire theinterest is not willing to acquire it for the consideration so determined, suchperson shall be liable to pay all costs of or incidental to the application.may be transferred under this section shall in the absence of anyagreement between the parties, be determined by the court, on applicationbeing made to it in this behalf, and if any person proposing to acquire theinterest is not willing to acquire it for the consideration so determined, suchperson shall be liable to pay all costs of or incidental to the application.

3. If there are two or more heirs, proposing to acquire any interest under thissection, that heir who offers the highest consideration for the transfer shallbe preferred.section, that heir who offers the highest consideration for the transfer shallbe preferred.

Explanation: In this section `court' means the court within the limits of whosejurisdiction the immovable property is situate or the business is carried on, andincludes any other court which the State Government may, by notification in theofficial Gazette, specify in this behalf. (Vide with retrospective effect from 05-09-1985).

15-E. From the above, Section 29(A) when speaks daughter of a coparcener shallby birth become a coparcener as if son including by survivorship, notwithstandinganything contained in Section 6 of HS Act and such property shall be held by her asfull owner and the partiable property includes even a dwelling house. Section 29(B)speaks of interest to devolve by survivorship on death of such female. Section 29(C)speaks of the preferential right. The only riders are that, the daughter’s marriage(minor or major) should not have been performed by the time the Act came into forcei.e. by 5.9.1985-(Vide, B.Chandrasekhara Reddy Vs. State of AP; G.Valli Vs. Stateof AP and R.Mahalakshmi Vs. AV Anantharaman) and there should not be actualpartition of the property affected by metes and bounds.

15-F. As the HS AP Amended Act provisions covered by section 29(A to C) notamended the existing provision- Section 6 of the HS Act,1956, but for saying-notwithstanding anything contained therein, the HS AP Amended Act applies whenthere was no any partition by metes and bounds by the time the AP AmendedAct,13/1986 came into force w.e.f. 05.09.1985, as concluded already. The Section29A is thus worded to prevail with non-obstante clause as it is not withstandinganything contained in Section 6 of the existing HS Act,1956.Thereby irrespective ofthe legal fiction from the concept of notional partition or deemed partition fromSection-6 Proviso Explanation-1, from any female relative etc., specified in class-(1)of the Schedule of the Act; for no actual partition taken place, the unmarrieddaughter is entitled to claim right as coparcener with equal share in the coparcenaryproperty with other male coparceners, as daughter of even one of the Coparceners.

15-G. As the subject is in the concurrent list and the HS AP Amended Actreceived the assent of the President of India, by virtue of Articles 246 and 254 of theConstitution of India; the HS AP Amended Act Section 29 (a) to (c) supra prevailsover the HS Act,1956 Sections 6,8 & 23 in the area of any irreconcilability betweenthe provisions of Sections 6,8,23 and Section 29(a) to (c) supra. It is to saysuccession though opens by the notional partition concept under Section 6 of theHS Act,1956, in the case of a male Hindu died intestate leaving coparcenaryproperty and left behind him female relative etc., specified in class-I of the Scheduleof the HS Act, for his undivided interest to devolve by succession to determine theshares as if there is actual partition by the time of his death, once the AP AmendedAct applies, since prevails over the notional partition concept and then Section 6

notional partition concept has no bar even from death of the father of the unmarrieddaughter by the time the AP Amended Act came into force, to the claim of suchunmarried daughter as coparcener with her brothers, even it is worded as daughterof coparcener and not sister of coparcener, for the same makes no difference, oncebar of Section 6 of HS Act has no application, where the HS AP Amended ActSection 29 (a) to (c) apply. It is practically to say, notional partition concept not takenaway, but notwithstanding that notional partition, the daughter can claim ascoparcener. No doubt, there is a bar for application of the HS AP Amended Act,once marriage of daughter performed prior to 05.09.1985 or once there is an actualpartition by metes and bounds before that date, but for to say even notional partitionby virtue of legal fiction got all the traits of actual partition by metes and bounds,once that legal fiction of notional partition has no bar to the claim of daughter ascoparcener, it makes no difference.

15-H. However it could not be missed noticing that, after the HS AmendedAct,2005 came into force, Section 6 of the HS Act amended by the Act,2005 prevailsover the AP Amended Act Section 29(a) to (c) supra. This court in Jangireddy Vs.Y.N.Reddy also held that the HS Amended Act,2005-(Central amended Act)-prevails over the HS AP Amended Act,1986-(State amended Act), despite the HSAP amended Act commences with the non-obstante clause. From the combinedreading of Articles 245, 246 and 251 read with 254 of the Constitution of India, moreparticularly from the proviso to Article 254, it clearly shows that a subsequent Centralamendment Act will prevail over the earlier State amendment Act of the subject inconcurrent list, to such an extent the State Act even received the assent of presidentof India is not reconciled with the subsequent Central Legislation.

15-I. The HS Amended Act,2005 amended Section 4, Section 6, Section 23,Section 24 and Section 30 of the Hindu Succession Act,1956, of which Section 6 ispresently more relevant to consider. It reads that:

Section 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 MitaksharaLaw,the daughter of a coparcenershall,- (a)by birth become a coparcener in her own rightin the same manneras the son; (b) have the same rights in the coparcenary property as she would havehad if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenaryproperty as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemedto include a reference to a daughter of a coparcener:

-Provided that nothing contained in this subsection shall affect orinvalidate any disposition or alienation including any partition ortestamentary disposition of property which had taken place before theth20day of December,2004.

(2) Any property to which a female Hindu becomes entitled by virtue ofSub-section(1) shall be held by her with the incidents of coparcenaryownership and shall be regarded, not-withstanding anything contained inthis Act, or any other law for the time being in force, as property capable ofbeing disposed of by her by testamentary disposition.

( 3 )Where a Hindu dies after the commencement of the HinduSuccession(Amendment)Act,2005, his interest in the property of a JointHindu family governed by the Mitakshara law, shall devolve bytestamentary or intestate succession, as the case may be under this Actand not by survivorship, and the coparcenary property shall bedeemed to have been divided as if a partition had taken placeand,- (a) the daughter is allotted the same share as is allotted to a son; (b) the shore of the pre-deceased son or a pre-deceased daughter, asthey would have got had they been alive at the time of partition, shall beallotted to the surviving child of such predeceased son or of suchpredeceased daughter; and

(c) the share of the predeceased child of a pre-deceased son or apredeceased daughter, as such child would have got had he or she beenalive 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 thecase may be.

Explanation- For the purposes of this sub-section, the interest of aHindu Mitakshara coparcener shall be deemed to be the share in theproperty that would have been allotted to him if a partition of theproperty had taken place immediately before his death irrespective ofwhether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession(Amendment)Act,2005, no court shall recognise any right to proceed againsta son, grandson or great-grandson for the recovery of any debt due from hisfather, grandfather or great-grand-father solely on the ground of the piousobligation under the Hindu law, of such son, grandson or great-grandson todischarge any such debt;

Provided that in the case of any debt contracted before thecommencement of the Hindu Succession(Amendment)Act,2005 nothingcontained in this sub-section shall affect- (a) the right of any creditor to proceed against the son, grandson ofgreat-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt,and any such right or alienation shall be enforceable under the rule or piousobligation in the same manner and to the same extent as it would have beenenforceable as if the Hindu Succession(Amendment)Act,2005 had not beenenacted.

Explanation-For the purposes of Clause (a), the expression "son","grandson" or "great- grandson" shall be deemed to refer to the son,grandson or great-grandson, as the case may be, who was born or adoptedprior to the commencement of the Hindu Succession (Amendment)Act,2005.

(5) Nothing contained in this section shall apply to a partition, which has thbeen effected before the 20day of December,2004.

Explanation-For the purposes of this Section"partition" means anypartition made by execution of a deed of partition duly registered underthe Registration Act,1908(16 of 1908) or partition effected by a decreeof a court.

15-J. Though, both under the Shastric Hindu Law and the HS Act,1956 (un-amended Section 6 of the HS Act,1956), a female Hindu was not recognized as acoparcener at all, but for dealt with interest of a male Hindu in a Mitaksharacoparcenary property; the parliament intended to change the existing law andcreate and confer such right on a daughter of a coparcener also by the HSAmended Act,2005. Therefore, they chose to make a declaration signalling thechange in the law, as it existed till then and heralding a new era. The equality to berestored was between son and daughter only and not between male andfemale Hindu and though not absolutely and axiomatically, as divesting of anyright already vested is not the intention of the legislature from its close andcombined reading. Thus, Gender discrimination between the son anddaughter is removed to the extent possible by bringing the law in conformitywith the Articles 14 and 15 of the Constitution of India.

15-K. When the HS Amended Act came into force in 2005, naturally thequestion and a doubt would arise, as to when the daughter would get that right.Section 6 of the Amended Act says “On and from the commencement of the HinduSuccession(Amendment)Act,2005, in a Joint Hindu family governed by theMitakshara Law, the daughter of a coparcener shall,-(a) by birth become acoparcener in her own right in the same manner as the son; (b)---”. The parliamentthough expressly stated in the section itself that this "right is by birth", this

amendment is introduced however by way of substitution using the phrase, "on andfrom the commencement of the Hindu Succession(Amendment) Act,2005" as theopening words of the Section and the above scope is further restricted by the-proviso to the amended section 6, which states thatnothing contained in Subsection (1) of Section 6 shall affect or invalidate any disposition or alienationincluding any partition or testamentary disposition of property which had takenplace before 20thday of December, 2004.In this amended Section 6 the word'partition' has been given a very narrow meaning by Proviso to Sub-section(5) ofSection 6-viz., (1) Partition made by execution of a deed of partition duly registeredunder the Registration Act,16 of 1908 or (2) Partition effected by a decree of theC ourt. Sub-section(3) of section deals with succession of property aftercommencement of the Hindu Succession Act,2005(from 09.09.2005). Further, Sub-section(3) of the amended Section 6 provides that, where a Hindu dies after thecommencement of the Hindu Succession(Amendment)Act,2005, his interest in theproperty of a Joint Hindu family governed by the Mitakshara law, shall devolve bytestamentary or intestate succession, as the case may be, under this Act and not bysurvivorship, and the coparcenary property shall be deemed to have been dividedas if a partition had taken place. Therefore, with the passing of the AmendmentAct,2005, the concept of survivorship is given a go by once and for all so far as theinterest of the Hindu(not restricted to male Hindu, to say even of female Hindu). Thewords “as if a partition had taken place” save the concept of notional partition bylegal fiction.

15-L. A combined reading of the provisions indicate that, if no disposition oralienation or partition or succession had taken place till 20[th] December,2004, thecentral amendment will have to be given effect, since there had been no occasionfor application of State law, where there had been no partition or death of acoparcener before this date, so that married daughter would also count for a sharein the event of further partition or death on or after December 25, 2004, provided sheis alive by 9[th] September,2005. The Parliament consciously used the phrase "thedaughter of a coparcener" is the person on whom they are conferring the right andnot on any other female relative, who may be a member of Joint Hindu Family, soalso, not used the words sister of a coparcener, as not intended to say irrespective of father’s death and of notional partition with all traits of actualpartition by legal fiction and succession even opened therefrom, to seekpartition with brothers for remaining coparcenary after death of father evencontinues. It is though in the HS AP Amended Act also, the words "daughter of acoparcener" used; there the bar of notional partition was excluded by the non-obstanti clause used of notwithstanding anything contained in Section 6 of HS Act.The combined reading of the HS Amended Act Section 6 and HS AP Amended ActSection 29A indicates the difference and intention of the legislature from the samealso.

15-M. This intention can be gathered also from the fact that in the HSAct,1956- Section 6, proviso conferred rights on a "female relative" and notonly on a "daughter of a coparcener". Likewise, the HS Act,1956- Section-6,proviso speaks of a notional partition by legal fiction and Section-6 of the HSAmended Act not used the words notwithstanding anything contained inSection-6 Proviso of the HS Act, though same is used in Section 29A of HSAP Amended Act. Thus, it is subject to Section-6 of the HS Act,1956 or anyState Law that was in operation prior to coming into force of the HS AmendedAct, the rights that are created or conferred and vested, not being divestedeven used the words “by birth becomes a coparcener” for the same notrepresents point of time traced back to her birth, but to the nature of the rightand subject to its existence. It is also to say where the daughter is not alive bythe time the Amended Act,2005 has come in to force, the question ofbecoming a coparcener pursuant to the Act does not arise, much less withcoparcenary right by birth. If the daughter is born after the Act came in toforce, she can claim. Thus, it is only where such right is available and notvested on others by the time the HS Amended Act,2005 came into force, fromthe opening words of the Section 6(1) itself says “on and from commencement ofthe Act”, then only for its tracing back as birth right arises, to say the AmendedAct,2005 is not retrospective in operation. The rights that conferred by the HSAmended Act,2005- Section 6, where there is no partition effected (by legal fictionor otherwise) or where there is no alienation or any disposition by the prescribeddate before the Act came into force) are: (a) Equality in Status - The daughter of acoparcener becomes a coparcener by birth only from the commencement of the Act and in her own right in the same manner as the son and (b) Equal rights incoparcenary property – to say it is in the coparcenary property existing, as shewould have had, if she had been a son. The parliament also took care to see thatthe daughter who is conferred rights in the coparcenary property (subject toavailability) on par with the son, is also saddled her with the liabilities in respect ofsaid coparcenary property as that of a son, by making it clear that the right inproperty conferred on her is not free from all encumbrances on the said property.The rights and liabilities are to be shared equally by the son and daughter, thusgiving effect to the equality clause in letter and spirit, to a major extent. With thechange in the law, the legal concept of coparcenary underwent a radical change.The coparcenary hitherto the monopoly of male lineal descendants and consistingof only male member of a Joint Hindu Family now has to accommodate a daughteramong the females also. Thus, any reference to a Hindu Mitakshara coparcenershall be deemed to include a reference to a daughter of a coparcener. Oncedaughter is conferred with the right of a coparcener, it follows that, she would get aright by birth in the available coparcenary property as on date of the Act. From theopening words of the HS Amended Act,2005- Section 6 saying –“on and fromcommencement of the Act”, it suggests the same and a combined reading of theamended Section 6 with earlier provision(Section 6) and the State amendments inbetween that were in force bring about the real intention of the Legislature as stated

supra of the Amended Act is not retrospective in operation.

15-N. In this context of interpretation of the words used with other provisions ofthe Statute and with reference to the legislative intention, it is apt to quote - 15-N.(a). As per Plowden - the intent of statutes is more to be regarded andpursued than the precise letter of them…..and the best way to construe an Act ofParliament is according to the intent rather than according to the words…….. Eachlaw contains of two parts viz., of BODY and SOUL, the letter of the law is the body ofthe Law and the sense and reason of the Law is the Soul of Law……… When thewords of statute enact one thing, they enact all other things which are in the likedegree.

15-N.(b). As per Austin – When the words are ambiguous or of any doubtfulsignificance, the intention of the Legislature must be interpreted. It is to say, theLegislative silence conveys signals of the duty on the interpreter to interpret themeaning and for that the interpretation and construction have same effect byidentifying the Legislative intent as part of duty of the Court since the Legislativeauthorities are functuous officio after the legislation is passed &

15-N.(c). The Apex Court in its expression in RMD Chamarbangwalla Vs.Union of India referring to the expression in River Wear Commissioners Vs.

William Adamson held that although the words occurring in a particular statute areplain and unambiguous, they have to be interpreted in a manner which would fit inthe context of the other provisions of the Statute and bring about the real intention ofthe legislature there from.

15-O-(i). A Full Bench of the Bombay High Court in Shri BadrinarayanShankar Bhandari Vs. Omprakash Shankar Bhandari answering a reference, byJudgement dated 14-08-2014, by overruling the earlier Division Bench expression inVaishali S.Ganorkar Vs. Satish Keshavrao Ganorkar of only those daughtersborn after September 9, 2005, will be entitled to equal rights in ancestral property,held that- “Section 6 of Hindu Succession Act,1956 as amended by the AmendmentAct of 2005 is retro-active in operation. The judges observed: “The principle laiddown by the Supreme Court in Sheela Devi’s case, therefore, does not militateagainst the view taken by us that the Amendment Act of 2005 applies to a daughterof coparcener, who(the daughter)is born before 9[th] September,2005 and alive as on9[th] September,2005 on which date the Amendment Act of 2005 came into force. Ofcourse, there is no dispute about entitlement of a daughter born on or after 9[th]September,2005.” The daughters would be able to exercise their right only after 9thSeptember,2005 when the Act was amended. “Therefore, it is imperative that thedaughter who seeks to exercise such a right must herself be alive at the time whenthe Amendment Act,2005 was brought into force. It would not matter whether thedaughter concerned is born before 1956 or after 1956.This is for the simple reasonthat the Hindu Succession Act,1956 when it came into force applied to all Hindus inthe country irrespective of their date of birth. The date of birth was not a criterion forapplication of the Principal Act. The only requirement is that when the Act is being”sought to be applied, the person concerned must be in existence/living.To thatconclusion, the expression of the Apex Court in Sheela Devi (supra) placedreliance.

15-O-(ii). In Sheela Devi (supra), it was held that, by the time the HS AmendedAct came into force, if succession opened by notional partition under Section 6 ofHS Act by death of father, the daughter who got right by birth by virtue of the Act,cannot be considered as Coparcener.

15-O-iii. On the aspect whether notional partition by virtue of legal fiction can beconsidered as actual partition, the Apex Court in Gurupad v Hirabai-observed thatthe fiction created by Explanation I of Section 6 HS Act,1956 has to be given its full

and due effect.” The Court in this regard quoted a passage from East EndDwellings Co Ltd. Vs. Finsbury Borough Council, by Lord Asquith that-“If youare bidden to treat an imaginary state of affairs as real, you must also imagine asreal, the consequences and incidents which, if the putative state of affairs had in factexisted, must inevitably have flowed from or accomplished it, and if the statute saysthat you must imagine a certain state of affairs, it cannot be interpreted to mean thathaving done so, you must cause or permit your imagination to boggle when it comesto the inevitable corollaries of the state of affairs”. The Apex Court therefrominterpreted the concept of notional partition by legal fiction used in the Section 6 tomean that, a partition had taken place between the deceased and other coparcenersimmediately before his death. This assumption, as per the Court, is irrevocable oncemade and all the consequences that would flow from a logical partition would follow;which means that the share of the heirs must be ascertained on the basis that theyhad separated from one another and had received a share in the partition which hadtaken place during the lifetime of the deceased.

15-O-iv. No doubt it was in the context of benefiting a female it was specificallynoted by the Court in the case that all the reforms that had taken place earlier werewith a view to improve the property rights of women and a narrow approach wouldlead to taking a step backwards. The Court went on to mention that it would renderfruitless the social reform that has enabled Hindu women to acquire an equal statuswith men and as such the interpretation that be preferred should be the one thatfurthers the intention of the legislature and remedies the injustice from which Hinduwomen have suffered over the years. This approach of the Court of all theconsequences that would flow from a logical partition would follow for notionalpartition was later reaffirmed in State of Maharashtra Vs. Narayan Rao Sham RaoDeshmukh.

15-O-v). It is pertinent to mention here that, a narrow approach has been alsofollowed by the High Court of Andhra Pradesh in P Govinda Reddy Vs. GollaObulamma and Yethirejulu Neelaya Vs. Mudummuru Ramaswami and earlier toit by the High Court of Bombay in Sriram Bai Vs. Kalgonda that, though from theconcept of notional partition U/Section 6 HS Act, the basic principle has been topresume that apartition had been affectedonly for a specific purpose which istoascertain the interest of the deceased coparcener as available for succession.

It was further presumed that in this particular approach once the said interest wasascertained there was no need to allot shares to the other members, whether maleor female, to the family. Even from that approach, for not used the words sister ofCoparcener, but used only the words daughter of Coparcener, once father died andhis share by notional partition divided for succession opened, there is nocoparcenary of father to claim after commencement of the HS Amended Act,2005 fora daughter as if a son of right by birth.

16. (a). From the above, even the legal fiction of notional partition under Section6 of the HS Act,1956 has no bar from the overriding effect with non-obstanti clausein Section 29A of the HS AP Amended Act, where the HS AP Amended Act applies.In the case on hand, admittedly, the marriage of the plaintiff was performed on 23-04-1978 itself and thus the HS AP Amended Act,13 of 1986 which came into forcew.e.f.05-09-1985 has no application. The plaintiff in the suit thereby cannot claim ascoparcener in the plaint schedule coparcenary property for 1/3[rd] share as per theHS AP Amended Act,13 of 1986 in the coparcenary of her brother and late father.However, where the HS AP Amended Act has no application, the HS Act,1956-Section 6 notional partition concept applies. When such is the case, even theappeal suit as well as both the cross-objections impugning the trial Court’s degreeand judgment supra are continuation of the suit proceedings to say for all purposesthe suit lis is pending (under the Doctrine of Merger) even by the time, the HSAmended Act,2005 came into force as held in G.Sekhar(supra), since Rama Rao-(father of plaintiff and 2[nd] defendant as well as husband of 1[st] defendant) died inSeptember,1997 intestate leaving them behind him and the plaint scheduleproperties and of whom the plaintiff and 1[st] defendant are his female class–I legalheirs to succeed his interest in the coparcenary therein with 2[nd] defendant-maleclass–I legal heir and there from, by the legal fiction of notional partition successionsince opened, for there is no further coparcenary of father of plaintiff, the plaintiffeven under the HS Amended Act,2005 cannot claim as coparcener with her latefather as daughter of coparcener.

16. (b). Thus, a perusal of the scope of Section 6 HS Amended Act,2005-definition of partition by explanation to Section-6(5) if read with proviso to section-6(1) is no way exhaustive, but an inclusive definition from the interpretation by a whole reading of the Section, which even to include the concept of notional partitionthat brings an irreversible situation from the irrevocable legal fiction to draw thatwould flow from a logical partition with all consequences as share of the deceasedat least separated just before his death, leave about others as discussed supra.

17. In this regard coming to the scope of Section 6 (before and after the HSAmended Act,2005) and Section 29A of AP HS Amended Act,1986 supra withreference to the expressions of this Court and the Apex Court in particular and ofother High Courts in general:

17. (i). The Apex Court in S.Sai Reddy Vs. S.Narayana Reddy confirming theexpression of this Court(reported decision), while considering the scope of the HSAP Amended Act,1986 as to when a partition can be said to have been effected forthe purposes of the AP amended provision; held that "a partition of the joint Hindufamily can be effected by various modes, viz., by a family settlement, by a registeredinstrument of partition, by oral arrangement by the parties, or by a decree of thecourt. When a suit for partition is filed in a court, a preliminary decree is passeddetermining shares of the members of the family. The final decree follows,thereafter, allotting specific properties and directing the partition of the immovableproperties by metes and bounds. Unless and until the final decree is passed andthe allottees of the shares are put in possession of the respective property, thepartition is not complete. The preliminary decree which determines share does notbring about the final partition. For, pending the final decree the shares themselvesare liable to be varied on account of the intervening events. In the instant case,there is no dispute that only a preliminary decree had been passed and before thefinal decree could be passed the amending Act came into force as a result of whichClause (ii) of Section 29-A of the Act became applicable. This intervening eventwhich gave shares to daughters had the effect of varying shares of the parties likeany supervening development, since the legislation is beneficial and placed on thestatute book with the avowed object of benefitting women which is a vulnerablesection of the society in all its stratus, it is necessary to give a liberal effect to it. Forthis reason also, we cannot equate the concept of partition that the legislature has inmind in the present case with a mere severance of the status of the joint familywhich can be effected by an expression of a mere desire by a family member to dos o .The partition that the legislature has in mind in the present case isundoubtedly a partition completed in all respects and which has brought about an irreversible situation.A preliminary decree which merely declaresshares which are themselves liable to change does not bring about any irreversiblesituation. Hence, we are of the view that unless a partition of the property is affectedby metes and bounds, the daughters cannot be deprived of the benefits conferredby the Act. Any other view is likely to deprive a vast section of the fair sex of thebenefits conferred by the amendment. Spurious family settlements, instruments ofpartitions not to speak of oral partitions will spring up and nullify the beneficial effectof the legislation depriving a vast section of women of its benefits". In thisexpression of Sai Reddy, the observation-“The partition that the legislature hasin mind in the present case is undoubtedly a partition completed in allrespects and which has brought about an irreversible situation and apreliminary decree which merely declares shares which are themselves liableto change does not bring about any irreversible situation” it appearsis madefor the reason that notional partition has no way a bar for the HS AP Amended Actto apply for the daughter (unmarried) to become coparcener and what is remained ispreliminary decree passed pending in appeal from which there was no actualdivision.

17. (ii). In Dodla Chinnabbai Reddy Vs Dodla Kumara Swami Reddyreferring to the expression of Sai Reddy(supra) though stated not applicable onfacts, it was held in considering the scope of Section 29-A of the HS AP AmendedAct that, the Non-obstante clause used in Section 29-A of the Act is intended tocarve out an exception in favour of the daughters who remained unmarried till5.9.1985, to confer additional benefits of coparcenary rights on them.

17. (iii). In Parchuri Vs. Parchuri-this court (in the single judge expression)held referring to the expression of the Apex Court in Sai Reddy(supra), that thebenefit of the HS Amended Act,2005 can be extended in a pending matter to meaneven after passing of preliminary decree to say the suit is deemed pending. There,father was alive by the time suit filed against him and he even died pending appealfiled by him against the preliminary decree for partition of 2/3[rd] share passed by trialcourt in favour of his two minor sons by its challenge and the unmarried daughteralso as one of legal heirs came on record before,2002 and held for redefiningpreliminary decree shares for giving her one such share as coparcener with her brothers, for death of father coparcener was pending the lis in appeal. However,once the HS AP Amended Act has no application for daughter marriedalready and later before the HS Amended Act,2005 came in to force the fatherdied, and thereby succession opened under Section 6 of HS Act,1956 byvirtue of the notional partition from non-application of the HS AP AmendedAct; can the daughter claim partition invoking benefit of the HS AmendedAct,2005, was not fallen for consideration for specifically to answer inParchuri(supra).

17. (iv). For the above question, the answer was held in negative by theexpression of the Apex Court in Anardevi Vs. Parmeshwari Devi that was almostreiterated of Sheela Devi(supra)-holding thatbefore the HS Amended Act,2005came into force, the father when died, the daughter cannot claim partition invokingbenefit of the HS Amended Act,2005, as by virtue of notional partition under Section6 HS Act, succession opened and his interest was devolved by succession underSection 8 of the HS Act,1956 and the HS Amended Act,2005 is only prospective inoperation.

17. (v). In Sai Reddy(supra) once it is held by the Apex Court as “the partitionthat the legislature has in mind in the present case(under the AP HS Amended Act)is undoubtedly a partition completed in all respects and which has brought about anirreversible situation”-the notional partition under Section 6 of the HS act by legalfiction is not mere severance in status, but as if actual partition that also brings outan irreversible situation. In the expression of Sai Reddy (supra), the notionalpartition concept under Section 6 of HS Act, 1956 did not fall for consideration as theHS AP Amended Act provisions given prevalence with non obstanti clause inSection 29 (A-C) of the HS AP Amended Act for giving overriding effect irrespectiveof what is contained in section 6 of the HS Act,1956. In Sai Reddy(supra), the ApexCourt thus only interpreted the wording of Section 29A-C of the AP HS Amended Actof actual partition by meets and bounds, in saying preliminary decree since onlydefines rights and not an actual partition by meets and bounds, the shares can beredefined once under the AP HS Amended Act, the daughter became coparcenerbefore passing of final decree. The expressions of the Apex Court in Anardevi andSheela Devi(supra)-cannot be said running contra to the principle laid down in SaiReddy (supra), even by any stretch of imagination.

17. (vi). In C.Anitha Vs Narne Constructions Pvt. Ltd referring to theexpressions of Sai Reddy and Dodla Chinnabbai Reddy(supra) held at para-25on facts that, after death of Eswaraiah and Anjaiah, the properties were notpartitioned by metes and bounds by the Coparceners including the Plaintiff-(daughter of Eswaraiah)-and therefore plaintiff is entitled to coparcenary rights in theproperty with her brothers among the defendants 1-6, by negated the contention ofalienations made before the HS Amended Act,2005 and before December,2004bars the suit claim of plaintiff.

17. (vii). The expressions of the Apex Court in Anardevi and SheelaDevi(supra) even already rendered by the time Parchuri(supra) a n d C.Anitha(supra) decided, same were not brought to its notice to consider, apart from theconcept of notional partition not considered at all therein.

17. (viii). Referring to the above expressions of the Apex Court in Anardeviand Sheela Devi(supra) and i n Sai Reddy(supra), it was held by another singlejudge expression of this Court in R.V.Padmavathi Vs. GangarapuS.Chowdary-that once father died leaving wife and daughter, besides sons, beforethe AP HS Amended Act came into force, since succession opened by notionalpartition,even the unmarried daughteris not entitled to claim coparcenary interestas per Section 6 of the HS Amended Act,2005 Act and as laid down in Anardeviand Sheela Devi (supra) and by saying in Sai Reddy(supra) exclusively dealt withSection 29A of the AP HS Amended Act.

17. (ix). The above decision in Padmavathi(supra) did not go into the scopeof the non-obstante clause in Section 29A of the AP HS Amended Act, saying notwithstanding anything contained in Section 6 of HS Act, to extend the benefit ofSection 29A of the AP HS Amended Act and once the benefit of Section 29A of theAP HS Amended Act applies, Section 6 HS Amended Act,2005 Act later came intoforce no way takes away the accrued rights under Section 29A of the AP HSAmended Act on the principle of vested right won`t divest. Even Section 6 HSAmended Act,2005 prevails over Section 29A of the AP HS Amended Act for anyinconsistency to reconcile and for any irreconcilability to say the State law deemedrepealed by subsequent central legislation to the extent of such irreconcilability by virtue of Articles 245 and 251 read with 254, more particularly from the proviso toArticle 254, however, that does not mean vested right conferred by State Act beforethe Central Act came into force also divests-(See-Jangireddy(supra) and also theother expression in Damalanka Gangaraju Vs. Nandipati Vijaya Lakshmi.

17. (x). As such, the decision in Sai Reddy(supra) rendered was prior tocoming into force of Section 6 of the HS Amended Act,2005 and not an authority onthe concept of notional partition whether tantamount to actual partition or otherwiseany disposition, besides from notional partition succession opens by the legalfiction. Further,the expressionsin Parchuri,Padmavathi and C.Anitha(supra)arenot the full fledged authorities on the scope of Section 6 HS Amended Act,2005 Actwith reference to Section 29A of the AP HS Amended Act, but for to the extent ofsubsequent change of law pending proceedings in appeal or for final decree can betaken consideration to mould the reliefs. As also laid down by the Apex Court inGanduri Koteswaramma Vs. Chakiri Yanadi referring to Section 6 HS AmendedAct,2005 besides G.Sekhar(supra) and in Prema Vs Nanje Gowdain a suit forpartition and as a general principle of law in M/s. Bay Berry Apartments Pvt.LtdVs. Shobha- subsequent change of law pending proceedings in appeal or for finaldecree can be taken consideration to mould the reliefs.

17. (xi). In Ganduri Koteswaramma(supra) the suit for partition was filed byone of the sons of Chakiri Venkata Swamy in the court of Senior Civil Judge,Ongole-(Andhra Pradesh) impleading his father Chakiri Venkata Swamy(1[st]defendant), his brother Chakiri Anji Babu (2[nd] defendant) and his two sisters-as 3[rd]and 4[th] defendants respectively, in respect of schedule properties `A', `C' and `D' -coparcenary property – claiming by the plaintiff that he, 1[st] defendant and 2[nd]defendant have 1/3[rd] share each. As regards schedule property `B'--as the propertybelonged to his mother--he claimed that all the parties have 1/5[th] equal share. The1[st] defendant died in 1993 during the pendency of the suit and after the HS APAmended Act,1986 came into force and later the trial court vide its judgment andpreliminary decree dated March 19, 1999 declared that plaintiff was entitled to 1/3[rd]share in the plaint schedule `A', `C' and `D' properties and further entitled to 1/4[th]share in the 1/3[rd] share left by the 1[st] defendant(father) and as regards scheduleproperty `B' the plaintiff was declared to be entitled to 1/5[th] share, that was amended on September 27, 2003 declaring that plaintiff was entitled to equal share along with2[nd], 3[rd] and 4[th] defendants in 1/5[th] share left by the 1[st] defendant in scheduleproperty `B'. In the course of consideration of the report submitted by theCommissioner and before passing of the final decree, the HS Amended Act,2005came into force on September 9,2005, pursuant to which the 3[rd] and 4[th] defendantsmade an application for passing a preliminary decree in their favour for partition ofplaint schedule properties `A', `C' and `D' into four equal shares and to allot oneshare to each of them by metes and bounds and for delivery of possession. The trialcourt, on hearing the parties, by its order dated June 15,2009, allowed theapplication of the 3[rd] and 4[th] defendants holding that they are entitled for re-allotment of shares in the preliminary decree, i.e., to 1/4[th] share each and separatepossession in schedule properties `A', `C' and `D'. The plaintiff challenged the orderof the trial court in appeal before this Court-(Andhra Pradesh High Court). TheSingle Judge by his order dated August 26,2009 allowed the appeal and set asidethe order of the trial court, holding that final decree is always required to be inconformity with the preliminary decree and Section 97 of the Code of CivilProcedure (for brevity ‘CPC’) provides that, where any party aggrieved by apreliminary decree passed after the commencement of the Code does not appealfrom such decree, he shall be precluded from disputing its correctness in any appealwhich may be preferred from the final decree. The Apex Court referring to the earlier3-Judges Bench decision in Phoolchand Vs. Gopal Lal and Sai Reddy(supra)held that, Section 97 of CPC does not create any hindrance or obstruction in thepower of the court to modify, amend or alter the preliminary decree or pass anotherpreliminary decree if the changed circumstances so require even if no appeal hasbeen preferred from such preliminary decree, as there can be more than onepreliminary decree and particularly in partition suits when after the preliminarydecree some parties die and shares of other parties are thereby augmented. . . . .. Sofar therefore as partition suits are concerned we have no doubt that if an eventtranspires after the preliminary decree which necessitates a change in shares, thecourt can and should do so;..........there is no prohibition in the CPC against passinga second preliminary decree in such circumstances and we do not see why weshould rule out a second preliminary decree in such circumstances only on theground that the CPC does not contemplate such a possibility. . . for it must not beforgotten 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 secondpreliminary decree can be passed in partition suits by which the shares allotted inthe preliminary decree already passed can be amended and if there is disputebetween surviving parties in that behalf and that dispute is decided the decisionamounts to a decree....." and thus the view of the High Court is against law and thedecisions of this Court in Phoolchand and Sai Reddy(supra).

17. (xii). There is nothing came for discussion and consideration in GanduriKoteswaramma(supra) as to the daughters were married or not by the time HS APAmended Act,1986 came into force and if married and the same not applicable tothem for preliminary decree not considered them as coparceners; whether-notionalpartition concept of Section 6 of HS Act is a bar or not to get the benefits of the HSAmended Act,2005. The earlier expressions in Anardevi and Sheeladevi(supra)were also not considered on the scope of the Amended Act is only prospective andthe concept of “notional partition” defined in Section 6 of HS Act, opens thesuccession. It was not even considered whether the concept of “notional partition”defined in Section 6 of HS Act,1956 falls within the meaning of the word “partition”used in Section 6 of the HS Amended Act,2005.

17. (xiii). In another single judge expression of this court in BurugupalliSeesharatnam Vs. Sirigina Ramalakshmi referring to Damalanka Gangaraju,G.Sekhar, Ganduri Koteswaramma and mainly relying uponGanduriKoteswaramma(supra)-held that, daughters are entitled to the benefits of the HSAmended Act,2005. But the expressions in Anardevi and Sheeladevi(supra) werealso not considered on the scope of the Amended Act is only prospective and theconcept of “notional partition” defined in Section 6 of HS Act, opens the succession.It was not even considered whether the concept of “notional partition” defined inSection 6 of HS Act,1956 falls within the meaning of the word “partition” used inSection 6 of the HS Amended Act,2005.

18. (i). Though a Division Bench of the Karnataka High Court in PushpalathaN.V. Vs. V.Padma held that the aforesaid judgments of the Apex Courtin Anardeviand Sheeladevi(supra) are purely on the facts of those cases and they were notreally interpreting the amended provisions and they have not laid down any law, same appears not acceptable. The conclusions arrived in paras 114&115 of Pushpalatha (supra) are as follows:

“114.However, while determining the share of the male Hinduwho has died before the commencement of the amended Act,i.e.9.9.2005, who had an interest in a Mitakshara coparcenaryproperty, if he has left him surviving a female relative, his share is to bedetermined treating his daughter also as a coparcener. Thereafter inthe notional partition, the share to be allotted to him devolves as perproviso to the unamended Section 6 of the Act. Thus, the vested rightaccrued to the other female members is not affected by theamendment, as the said vested right is not taken away expressly or bynecessary implication by the Parliament. May be the extent of theirshare be diminished, but it does not amount to taking away the vestedright. That is the sacrifice the other female members who are noneother than the mother, grandmother, a granddaughter, has to make infavour of a daughter.

115. Therefore, in so far as other female members left behind by amale coparcener dying before the commencement of the AmendmentAct, succession to this property is governed by the unamendedSection 6 by virtue of Section 6 of the General Clauses Act”.

18. (ii). In fact, Pushpalatha(supra) reached the conclusion that the daughteris conferred with right by birth as coparcener and as such a right is vested thatrelates back to date of her birth, which do not divest by death of father by notionalpartition, when death of father is after her birth, though prior to coming into force ofthe HS Amended Act,2005, to say before considering the notional partition for deathof father, the daughter`s share as coparcener also to be determined by date and timeback to the death of father. This expression no way speaks “notional partition”concept of Section 6 HS Act,1956 does not fall within the meaning of the word“partition” used in Section 6 of the HS Amended Act,2005.

18. (iii). No doubt as held by the Apex Court, as in Gurupad; Narayan RaoSham Rao Deshmukh; P.Govinda Reddy; Yethirejulu Neelaya a n d SriramBai(supra) and in Shub karan Bubna Vs. Sita Saran Bubna at para-6 that, whereonly one or few of coparceners get separated, others can continue to hold theremaining property jointly without division by metes and bounds and inM.Venkataramana Hebbar(supra) at para-10 held that, despite severance in statusof joint family by expressing unequivocal intention by one of coparceners to others,till partition by metes and bounds the parties may continue to possess the propertyjointly. It is to say, severance in status is not actual partition and any separation byone or few does not affect the remaining others to continue joint of the coparcenary property. However, that concept is different to the concept under Section 6 of the HSAct,1956 with reference to Section 6 of the HS Amended Act,2005, as to from thesaid notional partition, it amounts to separation of the share of deceased father forsuccession opens, to bar the daughter of said deceased coparcener to maintain suitas coparcener with her brothers.

18. (iv). When notional partition by virtue of legal fiction created by Explanation Iof Section 6 of the HS Act,1956 has to be considered as actual partition by given itsfull and due effect to the fiction as held by the Apex Court in Gurupad and NarayanRao Sham Rao Deshmukh(supra), from that the basic principle has been topresume that a partition had been affected even for a specific purpose which is toascertain the interest of the deceased father coparcener as available for successionand once the said interest was ascertained, even remaining brother coparcenerscontinue; even death of father taken place before the HS Amended Act,2005 cameinto force and by legal fiction of notional partition, the father`s undivided share in thecoparcenary interest is ascertained for the limited purpose of its separation, whetherthe daughter after the HS Amended Act came into force from continuation ofremaining coparcenary by her brothers, can claim as coparcener with them from anyright by birth accrued after the Amended Act came into force, is the question?. Forthat the answer is even in negative for the reasons discussed supra and also for thereasons that, when Section 6 of the HS Act,1956 speaks notional partition on deathof any male member of coparcenary left behind him female relatives etc., specifiedin Class-1 of the schedule of the Act, by virtue of legal fiction his interest incoparcenary devolve by succession and once it is the father that died and therefromby virtue of notional partition, there is no coparcenary of father, even brotherscontinue the coparcenary with the remaining property, so far as daughterconcerned, after coming in to force of the Section 6 of the HS Amended Act,2005, toclaim right by birth, there is no coparcenary subsisting of her father, from wording ofthe amended section is the daughter of a coparcener and not even sister ofcoparcener, much less specifically provided to claim in the deemed coparcenary ofbrothers even after death of father, where notional partition concept of Section 6 ofthe HS Act,1956 applies. Needless to say once Section 29A HS AP Amended Actwas applicable for which notional partition not a bar and therefrom any right alreadyvested on daughter as coparcener, that wont divest after coming in to force of the

18. (v). Thus, the expressions of the Apex Court in Anardevi a n d SheelaDevi(supra) cannot be said confined to facts and not laid down any law to bindunder Article 141 of the Constitution as law of the land. A careful reading of Section6(1) read with Section-6(5) and also with Section 6(3) of the HS Amended Actclearly indicates that a daughter can be considered as a coparcener only if herfather was a coparcener at the time of coming into force of the amended provision.The above two decisions categorically say therefrom that the right of the daughter toclaim as a coparcener under the HS Amended Act, arises when the father manageris alive with coparcenary property and if he is no more, from the notional partition,Succession since opens, the right no longer accrues to claim by a daughter as acoparcener and there by the HS Amended Act is prospective in operation.

19. The earlier Division Bench expressions of the Karnataka High Court in thecase of M.Prithviraj Vs. Smt.Leelamma N- relying on the expression of the ApexCourt in Sheela Devi(supra) also held that once father died and by virtue of notionalpartition under Section 6 of the HS Act,1956 there was partition and successionopened, by virtue of subsequent legislation by the HS Amended Act,2005, thedaughter cannot claim share in the remaining properties and the HS AmendedAct,2005 is thereby held prospective in operation, needless to say anotherexpression of the Karnataka High Court in the case of R.Kantha Vs. Union of Indiain further answering the HS Amended Act,2005 prevails over the earlier HSKarnataka State Amended Act,1994.

20. In a recent single judge expression of the Madras High Court inK.M.Thangavel Vs. K.T.Udaya Kumar also it was heldparticularly at para 29 that,by virtue of the notional partition under Section 6 of the HS Act,1956 from death ofmale coparcener, from a female heir intervenes, there was succession opens andonce succession opened, the HS Amended Act,2005 has no application.

21. Thus, the law is consistent on the aspect of notional partition under Section6 of HS Act,1956 from death of male coparcener, from a female heir intervenesthere was succession opens by vesting of right with irreversible situation by thelegal fiction of a logical partition with all its consequences and once the successionopened, the HS Amended Act,2005 has no application, from the wording ofdaughter of a coparcener and not sister of coparcener, but for to say once HS AP

Amended Act applies for which notional partition is not a bar to claim by female ascoparcener and therefrom any right vested, that does not divest after the HSAmended Act,2005.

22. Further, the Apex Court in G.Sekhar(supra) observed even by referring tothe 174[th] Report of the Law Commission of India and the Statement of objects andreasons of the HS Amended Act,2005 of what Parliament intended to achieve thegoal of removal of discrimination; however held that the HS Amended Act,2005 isprospective and not retrospective in operation, as neither the 1956 Act nor the 2005Act seeks to reopen vesting of a right where succession has already taken place.For that conclusion also relied upon the expression in Eramma Vs. Veerupannawhere it was held that if partition has not taken place by the time HS Act,1956 cameinto force, Section 6 of the HS Act,1956 would apply and the operation of the statuteis thus prospective in operation.

23. Here coming back again to the facts of the case on hand, the plaintiff was amarried daughter by the time HS AP Amended Act,1986 has come in to force andthereby not entitled to the benefits of it and even the HS Amended Act,2005 has noapplication as before that, the plaintiff`s father Rama Rao died in september,1997where from succession opened and the plaintiff got only 1/6[th] share that was bynotional partition determined and thus there is no question of continuation of theplaintiff later as coparcener with her brother-2[nd] defendant (from the wording of theSection 6 of the HS Amended Act,2005 of the daughter of a coparcener and not thesister of a coparcener) to take benefit of the Amended Act 2005. From that, when thecloud is cleared by the above referred expressions from reading of the provisions ofthe Hindu Succession Act with Central and A.P. State Amendments and therefromwhen the plaintiff is not entitled to claim any share by birth much less as acoparcener on par with 2[nd] defendant, there is nothing to rearrange or redefine theshares defined by the trial Court in the partition preliminary decree.

24. Now coming to the costs awarded against the 2[nd] defendant covered by theCross Objections(SR)No.13681 of 2005 concerned; undisputedly, the plaintiff and2[nd] defendant are sister and brother and they are daughter and son of 1[st] defendant

who are the family members with close relationship and the plaint valued is on fixedCourt Fee and not on market value even, from the claim of joint and constructivepossession. Thus, awarding of costs against the 2[nd] defendant for the suit claim noway justified for sustaining. Hence, the Cross-Objections of the 2[nd] defendant are tobe allowed by ordering no costs throughout.

25. Coming to the Cross Objections(Cross-Objections(SR) No.3879 of 2005) of theplaintiff as answered Supra when plaintiff is in possession of item No.1 of the plaintschedule for which no rent she is paying and other two items are with the 1[st ]and 2[nd]defendants of whom 2[nd] defendant is major shareholder of 2/3 share and the 1[st]defendant is 1/6[th] shareholder equal to plaintiff is no other than mother of plaintiff,the trial Court is justified in not awarding past or future profits against the defendantsor any of them. Thus, the trial Court`s decree holds good and appeal of the 1[st]defendant also liable for dismissal in this regard also. Accordingly point No.1 isanswered.

Point No. 2:

26. In the result, appeal filed by the 1[st] defendant and the Cross-Objections(SR)No.3879 of 2005 filed by the plaintiff are dismissed with no costsand the Cross-Objections(SR)No.13681 of 2005 filed by the 2[nd] defendant isallowed with no costs and by setting aside that portion of the trial Court’s decreeawarding costs of suit against the 2[nd] defendant. Memo filed by the 2[nd] defendantstating that during lifetime of his mother-1[st] defendant, he is not seeking for divisionof his share in the Item-3 of the plaint schedule properties is recorded for the reasonthat there is no limitation for obtaining final decree in a partition suit and Article 137of the Limitation Act,1963 also has no application of three years limitation to obtainfinal decree. It is made clear that till actual division and separation of share ofplaintiff, from she is in possession of item No.1 out of the plaint schedule item Nos.1to 3 properties and for no profits awarded in favour of plaintiff for her share, she isneither liable for any profits to the defendants nor for eviction meanwhile by thedefendants from item No.1 of the plaint schedule.

27. Consequently, miscellaneous petitions, if any, pending in this appealshall stand closed.

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R.SUBHASH REDDY,J

Date: 31.12.2014.

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Dr.B.SIVA SANKARA RAO,J

Note: L.R.Copy to be marked.

B/o. Vvr