Swamyammal vs Ramalingam and Others

K.B.K. Vasuki, J—The issue involved in this Civil Revision Petition is as to whether the petitioner/plaintiff''s family is entitled to seek the amendment in respect of the shares and amendment of the suit relief in respect of the quantum of shares by virtue of the amendment Act.

The petitioner herein filed a suit for partition of 1/15 share and 1/10 share in the suit items 1 and 2 respectively. The shares are so claimed by the plaintiff by treating item No. 1 as the ancestral property and item No. 2 as the self acquired property of the deceased father. The suit was by judgment and decree dated 02.09.2003, dismissed. Aggrieved against the same, the petitioner/plaintiff preferred an appeal in A.S. No. 192 of 2008. Originally, the appeal was filed during 2004 on the file of Sub Court, Namakkal and thereafter, the same was transferred to Sub Court, Rasipuram and renumbered as A.S. No. 192 of 2008.

During the pendency of the appeal, Amendment Act 39 of 2005 came into force, as per which, female members recognised as coparceners are entitled to get equal status along with male heirs in respect of the ancestral properties. In view of the same, the plaintiff/appellant filed an interlocutory application in I.A. No. 98 of 2009 for amending the suit relief in respect of quantum of shares for getting benefit under Hindu Succession Amendment Act 39/2005. The petition was seriously opposed by the respondents/defendants. The lower Appellate Court dismissed I.A. No. 98 of 2009 in A.S. No. 192 of 2008 on the ground that the succession having been opened on 09.09.1970, the plaintiff is not entitled to claim the benefit under the Amendment Act 39 of 2005 and she is not entitled to claim more shares and no amendment in the suit relief is hence warranted. Aggrieved against the same, the plaintiff is now before this Court by way of present Civil Revision Petition.

The learned counsel for the petitioner has cited the following two authorities in respect of his case that the amendment can be entertained at any stage before conclusion of final decree proceedings: (i) Prema Vs. Nanje Gowda and Others, AIR 2011 SC 2077 : (2012) 113 CLT 198 : (2011) 6 JT 209 : (2011) 3 RCR(Civil) 215 : (2011) 6 SCALE 28 : (2011) 6 SCC 462 : (2011) 8 SCR 55 : (2011) 4 UJ 2594 : (2011) AIRSCW 3443 ; and (ii) Santhamani Vs. S. Saradamani and Others, (2013) 2 CTC 641 .

The reading of the Apex Court judgment reported in Prema Vs. Nanje Gowda and Others, AIR 2011 SC 2077 : (2012) 113 CLT 198 : (2011) 6 JT 209 : (2011) 3 RCR(Civil) 215 : (2011) 6 SCALE 28 : (2011) 6 SCC 462 : (2011) 8 SCR 55 : (2011) 4 UJ 2594 : (2011) AIRSCW 3443 would reveal that the facts which are involved in that case, are identical to the facts of the present case. In that case, the suit for partition was decreed by granting preliminary decree and pending appeal by the aggrieved party, Section 6-A in Hindu Succession Act, 1956 was inserted by Karnataka Amendment Act, 1990, by virtue of which female heirs also get equal right along with male heir in coparcenary property. The same compelled the plaintiff/appellant to seek enlargement of shares, but the request of the plaintiff/appellant was rejected on the ground that the same was barred by limitation. The Hon''ble Apex Court having found that the final decree proceedings was pending on the relevant date, was inclined to allow the plaintiff/appellant to seek more shares in accordance with the Amendment Act. While doing so, the Hon''ble Apex Court has in paras 16 and 17 observed as follows:

"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.

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 30.07.1994 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 practiced 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".

The Hon''ble Apex Court has in para-31 allowed the appeal filed by the appellant praying for amendment and directed the trial Court to pass final decree if not so far passed and if the final decree has already been passed, directed the trial Court to amend the same in terms of amendment allowed by the Hon''ble Supreme Court and to give effect to the right acquired by the appellant under Section 6-A of Karnataka Act 23 of 1994. The principle so laid down by the Hon''ble Apex Court was followed by this Court in Santhamani Vs. S. Saradamani and Others, (2013) 2 CTC 641 .

As rightly argued by the learned counsel for the petitioner, the Hon''ble Apex Court has, in the judgment above cited, gone to the extent of altering the preliminary decree already granted for more shares in accordance with the new right conferred under the Amended Act. As far as the present case is concerned, the suit is dismissed negativing the suit relief of partition and the right of the parties to get any share in the suit properties is pending determination in the appeal. In the event of the amendment being ordered in accordance with the new benefit conferred under the Amended Act and in the light of the principles laid down by the Apex Court in the judgment above cited, the lower appellate court, while going into the question of the plaintiff''s right to get any share in the suit property, is further required to go into the quantum of shares of which the plaintiff is entitled to. Thus way, the proposed amendment will in no way alter either the nature of the dispute or nature of the relief sought for in the suit and the suit remains one for partition of the plaintiff''s shares if any and what is sought to be amended is only the quantum of shares. That being the legal and factual aspects involved herein, the lower appellate court has committed serious error in negativing the proposed amendment by going into the merits and demerits of the same and the order so passed by the lower appellate court hence warrants interference by this Court.

In the result, the order made in I.A. No. 98/2009 in AS. No. 192/2008 is set aside and I.A. No. 98/2009 is allowed, thereby permitting the plaintiff to amend the plaint as prayed for, with liberty given to the respondents/defendants to file additional written statement by raising all legal and factual objections against the right of the plaintiff to claim partition and the quantum of shares claimed by the appellant/plaintiff and further direction issued to the lower appellate court to decide the amended suit reliefs on merits.

This Civil Revision Petition is accordingly ordered. No costs. Consequently, connected miscellaneous petition is closed.