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Friday, May 3, 2013

benefit of Karnataka Act 23 of 1994- In our considered view, the trial court and the learned Single Judge were clearly in error when they held that the appellant was not entitled to the benefit of Karnataka Act 23 of 1994 because she had not filed an application for enforcing the right accruing to her under Section 6-A during the pendency of the first and the second appeals or that she had not challenged the preliminary decree by joining Defendants 1, 4 and 5 in filing the second appeal.- as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. If in the interregnum any party to the partition suit dies, then his/her share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. Likewise, if law governing the parties is amended before the conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the court seized with the final decree proceedings is not only entitled but is duty-bound to take notice of such change and pass appropriate order. 17. In this case, the Act was amended by the State Legislature and Sections 6-A to 6-C were inserted for achieving the goal of equality set out in the Preamble of the Constitution. In terms of Section 2 of Karnataka Act 23 of 1994, Section 6-A came into force on 30-7-1994 i.e. the date on which the amendment was published. As on that day, the final decree proceedings were pending. Therefore, the appellant had every right to seek enlargement of her share by pointing out that the discrimination practised against the unmarried daughter had been removed by the legislative intervention and there is no reason why the court should hesitate in giving effect to an amendment made by the State Legislature in exercise of the power vested in it under Article 15(3) of the Constitution." In view of the aforesaid judgment, there is no escape from the conclusion that the special leave petitions are meritless and are liable to be dismissed as such. Ordered accordingly.


ITEM NO.4 COURT NO.3 SECTION IVA

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil)....../2013
CC 9253-9255/2013

(From the judgement and order dated 11/01/2010 in RFA No.935/2003,RFA
No.1012/2003 dated 06/01/2012 in RP No.2516/2011, of The HIGH COURT OF
KARNATAKA AT GULBARGA)

MAHESH & ORS. Petitioner(s)

VERSUS

SIDRAM (D) TR.LRS.& ORS. Respondent(s)

(With appln(s) for c/delay in filing SLP,c/delay in refiling SLP and office
report ))


Date: 01/05/2013 These Petitions were called on for hearing today.


CORAM :
HON'BLE MR. JUSTICE G.S. SINGHVI
HON'BLE MRS. JUSTICE RANJANA PRAKASH DESAI



For Petitioner(s) Mr. P.Vishwanatha Shetty, Sr. Adv.
Mr. Sharan Thakur, Adv.
Mr. V. Lakshim Naryana, Adv.
Mr. Ramesh Babu M.R.,AOR

For Respondent(s)

UPON hearing counsel the Court made the following
O R D E R


Delay condoned.
In one of these petitions, the petitioners have questioned
correctness of judgment dated 11.1.2010 passed by the Division Bench
of the Karnataka High Court in RFA Nos.935/2003 and 1012/2003. In the
other petition, the petitioners have challenged order dated 6.1.2012
passed by the Division Bench of the High Court in Review Petition
No.2516/2011.
The suit filed by the petitioners for partition and
separate possession was partly decreed by the trial Court vide
judgment dated 19.11.2002, the operative portion of which reads as
under:
" Suit of the plaintiffs No.1 to 3 is decreed partly.


Plaintiffs 1 to 3 together entitled for partition and separate
possession of 1/2 share in plaint para 7A and plaint Schedule B
Properties.


Defendant No. 2 is entitled of 3/16 share in plaint Para 7A and
Schedule B Properties.


Defendant No. 3 is entitled for 1/16 share in those properties.


Defendant No. 4 and 5 are each entitled for 1/8 share in those
properties (Para 7A and Schedule B of the Plaint)."


The regular first appeals filed by the parties were
disposed of by the Division Bench of the High Court in the following
terms:
"(b) The finding of the trial court that Schedule "A" and "B"
properties are joint family properties, in which, the
plaintiff are entitled to a share is affirmed.


(c) Plaintiff "C" schedule property is declared as the
joint family property, in which, the plaintiffs are
entitled to share.

(d) The decree of the trial court in respect of "D"
schedule properties is upheld and the plaintiffs are not entitled to a
share.

(e) In substitution of the shares allotted by the trial
court, it is held that the plaintiffs together and defendants 4 and 5
each one of them are entitled to 1/3rd in the remaining schedule
properties.

(f) Parties to work out their respective share in the final
decree proceedings including mesne profits from the date of the
suit."




The review petition filed by the petitioners in RFA
No.1012/2003 was dismissed by the Division Bench of the High Court by
observing that the amendment made in the Hindu Succession Act, 1956 by
Karnataka Legislature was retrospective and the daughters who were
married prior to the amendment were entitled to share in the property
of their father.
We have heard Shri P. Vishwanatha Shetty, learned senior
counsel appearing for the petitioners and perused the record.
The question whether the Karnataka Amendment in the Hindu
Succession Act is retrospective is no longer res integra and must be
treated as settled by the judgment of this Court in Prema v. Nanje
Gowda and others (2011) 6 SCC 462. After noticing the relevant
provisions of the Hindu Succession Act and the amendments made by the
State Legislature, this Court observed:

"15. In the present case, the preliminary decree was passed on
11-8-1992. The first appeal was dismissed on 20-3-1998 and the
second appeal was dismissed on 1-10-1999 as barred by
limitation. By the preliminary decree, shares of the parties
were determined but the actual partition/division had not taken
place. Therefore, the proceedings of the suit instituted by
Respondent 1 cannot be treated to have become final so far as
the actual partition of the joint family properties is concerned
and in view of the law laid down in Phoolchand v. Gopal Lal AIR
1967 SC 1470 and S. Sai Reddy v. S. Narayana Reddy (1991) 3 SCC
647, it was open to the appellant to claim enhancement of her
share in the joint family properties because she had not married
till the enforcement of Karnataka Act 23 of 1994. Section 6-A of
Karnataka Act 23 of 1994 is identical to Section 29-A of the
Andhra Pradesh Act. Therefore, there is no reason why ratio of
the judgment in S. Sai Reddy v. S. Narayana Reddy (1991) 3 SCC
647 should not be applied for deciding the appellant's claim for
grant of share on a par with male members of the joint family.
In our considered view, the trial court and the learned Single
Judge were clearly in error when they held that the appellant
was not entitled to the benefit of Karnataka Act 23 of 1994
because she had not filed an application for enforcing the right
accruing to her under Section 6-A during the pendency of the
first and the second appeals or that she had not challenged the
preliminary decree by joining Defendants 1, 4 and 5 in filing
the second appeal.



16. We may add that by virtue of the preliminary decree passed
by the trial court, which was confirmed by the lower appellate
court and the High Court, the issues decided therein will be
deemed to have become final 

but as the partition suit is
required to be decided in stages, the same can be regarded as
fully and completely decided only when the final decree is
passed. 

If in the interregnum any party to the partition suit
dies, then his/her share is required to be allotted to the
surviving parties and this can be done in the final decree
proceedings. 

Likewise, if law governing the parties is amended
before the conclusion of the final decree proceedings, the party
benefited by such amendment can make a request to the court to
take cognizance of the amendment and give effect to the same.

 If
the rights of the parties to the suit change due to other
reasons, the court seized with the final decree proceedings is
not only entitled but is duty-bound to take notice of such
change and pass appropriate order.



17. In this case, the Act was amended by the State Legislature
and Sections 6-A to 6-C were inserted for achieving the goal of
equality set out in the Preamble of the Constitution. 

In terms
of Section 2 of Karnataka Act 23 of 1994, Section 6-A came into
force on 30-7-1994 i.e. the date on which the amendment was
published. 

As on that day, the final decree proceedings were
pending. 

Therefore, the appellant had every right to seek
enlargement of her share by pointing out that the discrimination
practised against the unmarried daughter had been removed by the
legislative intervention and there is no reason why the court
should hesitate in giving effect to an amendment made by the
State Legislature in exercise of the power vested in it under
Article 15(3) of the Constitution."



In view of the aforesaid judgment, there is no escape from
the conclusion that the special leave petitions are meritless and are
liable to be dismissed as such. Ordered accordingly.





|(Parveen Kr.Chawla) | |(Phoolan Wati Arora) |
|Court Master | |Court Master |
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