Ganduri Koteshwaramma v. Chakiri Yanadi (2011)

A partition suit can take decades. This is the decision that decides whether a daughter gets the benefit of the 2005 amendment when a preliminary decree has already been passed but the final decree has not. The answer is yes: a preliminary decree merely declares shares which remain liable to change, and until partition is effected by metes and bounds the daughters cannot be deprived of the benefit.

The appellants and the respondents were sisters and brothers, the daughters and sons of one man. The first respondent, a son, filed a suit for partition impleading his father, his brother and his two sisters, claiming a one-third share in the coparcenary properties for himself, his father and his brother.

The father died in 1993 during the suit. By a preliminary decree of 19 March 1999, amended in 2003, the plaintiff was declared entitled to a one-third share in the coparcenary properties and to a further one-fourth of the one-third share left by the father.

The plaintiff then applied for a final decree and for determination of mesne profits. A Commissioner was appointed and submitted his report. While that report was under consideration, and before the final decree was passed, the 2005 amendment came into force on 9 September 2005.

The two sisters applied for a preliminary decree in their favour dividing the coparcenary properties into four equal shares with one share allotted to each of them by metes and bounds. Their brother contested; the other brother admitted their entitlement but said they must also bear the family debts.

On 15 June 2009 the trial court allowed the sisters' application and held them entitled to a one-fourth share each with separate possession. The High Court set that order aside, reasoning that a final decree must always conform to the preliminary decree, and that as long as the preliminary decree stood, shares could not be allotted differently; a party wanting a change must appeal against the preliminary decree.

The appeal was allowed, the High Court's judgment set aside and the trial court's order restored, with a direction to proceed to the final decree on that footing. The daughters take a one-fourth share each.

1. Partition is not complete until the final decree is worked out. A partition may be effected by family settlement, registered instrument, oral arrangement, or a decree of the court. Where a suit is filed, a preliminary decree is passed determining shares, and the final decree follows, allotting specific properties and directing division by metes and bounds. Unless and until the final decree is passed and the allottees are put in possession, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition, for pending the final decree the shares themselves are liable to be varied on account of intervening events.

1. The amendment was exactly such an intervening event. Its coming into force had the effect of varying the shares of the parties like any supervening development.

1. Read the beneficial legislation liberally. The legislation is beneficial and was placed on the statute book with the avowed object of benefiting women, a vulnerable section of society in all its strata, and must be given liberal effect.

1. Do not equate partition with a mere severance of status. The partition the legislature had in mind is undoubtedly a partition completed in all respects, which has brought about an irreversible situation — not a severance of status that a family member can effect by merely expressing a desire. A preliminary decree which merely declares shares that are themselves liable to change brings about no irreversible situation.

1. The policy reason for that rule. Unless partition is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred. Any other view is likely to deprive a vast section of the fair sex of those benefits, since spurious family settlements, instruments of partition and, not to speak of it, oral partitions would spring up and nullify the beneficial effect of the legislation.

1. The procedural objection is unsound. The Code creates no impediment to more than one preliminary decree where, after the first, events have occurred necessitating a readjustment of shares. The court always has power to revise a preliminary decree or pass another if changed circumstances demand. A partition suit continues after the preliminary decree and the proceedings are extinguished only on the passing of the final decree. It is not a correct statement of law that once a preliminary decree is passed it cannot be modified; the rights of the parties in a partition suit should be settled once for all in that suit alone.

1. The bar on challenging an unappealed preliminary decree does not apply. The provision precluding a party who has not appealed from disputing the correctness of a preliminary decree in an appeal from the final decree creates no hindrance to the court's power to modify, amend or alter the preliminary decree, or to pass another, if changed circumstances require. It is true that a final decree must conform to the preliminary decree, but that does not mean the preliminary decree cannot be altered before the final decree is passed.

It opens the standard problem where a partition suit straddles 9 September 2005. The method is: identify the stage the suit has reached; if the final decree has not been passed and there has been no division by metes and bounds, the daughters take their share.

It disposes of the arguments that a preliminary decree freezes the shares, that a final decree must simply follow it, and that a daughter who did not appeal the preliminary decree is shut out.

It does not decide the question of the father's survival on the appointed day — the father here died in 1993, and the point was settled later by the Supreme Court in the decision holding that the father need not have been alive on that date. Nor does it decide the liability for family debts, which one of the brothers had raised. Read it with the decision declaring a daughter entitled to be karta, which relies on it.