Daughters can avail benefits of amended Hindu Succession Act in a partition suit even when only preliminary decree is passed

 A suit for partition is not disposed of by passing of a preliminary decree until a final decree is passed partitioning the immovable property of the joint Hindu family by metes and bounds; that even after passing of the preliminary decree, the suit continues until the final decree is passed

In a suit for partition a contention was raised before the Court that subsequent to the decision in the suit in question, Parliament had amended Hindu Succession Act, 1956 by the Hindu Succession Amendment Act 39 of 2005 making daughters also coparceners and declaring them to be entitled to a share in the joint family properties and accordingly by virtue of the amended Section 6 of the Hindu Succession Act, the daughters would also be entitled to a share. It was further contended that Section 23 of the Hindu Succession Act, 1956 (which had provided that the dwelling house of the family cannot be partitioned at the instance of a female heir until the male heirs choose to divide their respective shares) has since been deleted with effect from 09.09.2005 by the Hindu Succession Amendment Act, 2005; and in this view of the matter even the dwelling house in C schedule is liable for partition

The Court observed that in any family governed by Mitakshara law, the daughter is made a coparcener equating her status to a son provided she was unmarried prior to 05.09.1985 and no partition had taken place prior thereto. However, by virtue of the amendment by Central Act 39 of 2005 amending the Hindu Succession Act 1956 w.e.f. 09.09.2005, section 6 of the Act was amended to bring out uniformity throughout the country, and the stipulation that the marriage of the daughter should not have been performed before 05.09.1985, was removed. Therefore, irrespective of the dates of marriage, all daughters would be deemed to be coparceners with one exception that partition should not have taken place before 20.12.2004. Although the Central Act 39 of 2005 did not specifically repeal Section 29-A introduced in the State of Andhra Pradesh by AP State Amendment Act 13 of 1986, the AP Court in the case of Damalanka Gangaraju (2007 (5) ALT 447) held that the State amendment is deemed to be repealed and that since both Parliament and the State Legislature made laws relating to the same concurrent subject, a question of conflict arises between the two enactments. It was held that the said conflict is resolved by Article 254(1) of the Constitution of India by providing that in such a case, the State Law shall be void to the extent it is repugnant to or inconsistent with the Central Act. Accordingly it was held that after 09.09.2005, all the daughters have to be treated as coparceners entitled to equal shares, irrespective of the fact whether they are majors or minors or their marriages were performed before 05.09.1985 or subsequent to 05.09.1985.

The new Section 6 would not be applicable only (1) where the dispossession or alienation including any partition had taken place before 20-12-2004; and (2) where testamentary disposition of property has taken place before 20-12-2004. A suit for partition is not disposed of by passing of a preliminary decree until a final decree is passed partitioning the immovable property of the joint Hindu family by metes and bounds; that even after passing of the preliminary decree, the suit continues until the final decree is passed; and in the interregnum i.e. after passing of preliminary decree and before final decree is passed, if events and supervening circumstances occurred, necessitating change in shares, there is no impediment for the Court to amend the preliminary decree or pass another preliminary decree re-determining the rights and interests of the parties having regard to the changed situation. It therefore held that the benefit of the amended Hindu Succession Act can be given to daughters even in a case where a preliminary decree is passed but where no final decree is passed.

Further, Section 23 was omitted by the Hindu Succession Amendment Act 39 of 2005 with effect from 09-09-2005. The effect of this omission was considered by the Supreme Court in the case of G. Sekar [(2009) 6 S.C.C. 99] wherein it was held that the omission of Section 23 of the Hindu Succession Act, 1956 by Section 3 of the Hindu Succession Amendment Act, 2005 would no doubt have prospective operation. But in view of the nature of the said provision it could affect pending proceedings also. It held that right of a son to prevent the daughters of the last male owner to seek for partition of a dwelling house being a right of the male owner to keep the same in abeyance till the division takes place, it is not a right of enduring nature and cannot be said to be an accrued right or a vested right. It held that such a right indisputably can be taken away by operation of a statute and/or by removing the disablement clause and therefore it would apply to even pending proceedings.

[Burugupalli Seesharatnam vs. Sirigina Ramalakshmi]
(Hyderabad HC, 20.06.2014)