The article is an excerpt of below mentioned case.
The new Section 6 of the act provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 9-9-2005. The legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from 9-9-2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.
The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely,
(i) where the disposition or alienation including any partition has taken place before 20-12-2004; and
(ii) where testamentary disposition of property has been made before 20-12-2004.
Sub-section (5) of Section 6 leaves no room for doubt as it provides that this section shall not apply to the partition which has been effected before 20-12-2004. For the purposes of new Section 6 it is explained that “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for determining the non-applicability of the section, what is relevant is to find out whether the partition has been effected before 20-12-2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court.
In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on 19-3-1999 and amended on 27-9-2003 deprives the appellants of the benefits of the 2005 Amendment Act although final decree for partition has not yet been passed.
The legal position is settled that partition of a joint Hindu family can be effected by various modes, inter alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the court.
In the present case, admittedly, the partition has not been effected before 20-12-2004 either by a registered instrument of partition or by a decree of the court. The only stage that has reached in the suit for partition filed by Respondent 1 is the determination of shares vide preliminary decree dated 19-3-1999 which came to be amended on 27-9-2003 and the receipt of the report of the Commissioner. 14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation.”
The Court made the following things clear:
(i) The equal share given to the daughter of a coparcener governed by Hindu Mitakshara Law along with brothers is by way of a substantive right;
(ii) Though the substantive right is created on and from 9-9-2005, it relates back to the incidence of birth;
(iii) The substantive right would not be available only if the coparcenary property is disposed of or alienated including by any partition or testamentary disposition of property before 20-12 2004 and;
(iv) If there is disposition of a coparcenary property by any partition, such partition must be by execution of a Deed of Partition duly registered under the Registration Act, 1908 or effected by a decree of the Court.
(v) A preliminary decree of partition only determines the rights and interests of the parties. It is only by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, if there is any change in law necessitating determination of shares accordingly then, there would be no impediment for the Court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation.
Reference
Ganduri Koteshwaramma and Another v. Chakiri Yanadi and Another reported in (2011) 9 SCC 788