SUSHEELAMMA Vs. K.SETHARAMAIAH

JUDGEMENT

(1.) The captioned second appeal is filed by plaintiffs who are petitioners in final decree proceedings bearing FDP.No.32/2005 assailing the concurrent decrees passed by the Courts below in entertaining applications filed by defendant Nos.6(a) to 6(e) and defendant Nos.7 and 8 in seeking modification of preliminary decree passed in O.S.No.96/1995 and the FDP Court having entertained these applications has come to conclusion that inspite of preliminary decree passed in O.S.No.96/1995, the present defendant Nos. 6(a) to 6(e) who are the legal heirs of one of the predeceased daughter and defendant Nos.7 and 8, in view of amendment to Sec. 6 of Hindu Succession Act, are entitled for equal share and consequently, a fresh preliminary decree is drawn by FDP Court granting 1/9th share jointly to defendant Nos.6(a) to 6(e) and 1/9th share each to defendant Nos.7 and 8. The said fresh preliminary decree drawn by the FDP Court is confirmed by the Appellate Court in R.A.No.1295/2009. These concurrent judgments and decrees are under challenge by the plaintiffs/petitioners in FDP.No.32/2005.

(2.) The present appellants instituted a suit for partition and separate possession in O.S.No.96/1995. The said suit was decreed granting share to the daughters i.e., defendant Nos.6 to 8 notionally. Based on the preliminary decree, the present appellants herein initiated final decree proceedings in FDP.No.32/2005. Pending consideration of final decree proceedings, the legal heirs of original defendant No.6 i.e., 6(a) to 6(e) and defendant Nos.7 and 8 filed two separate applications requesting the Court to modify the preliminary decree and grant equal share by extending benefit of amended provisions of Sec. 6 of Hindu Succession Act. Though the present appellants strongly resisted these applications, the FDP Court and the Appellate Court by applying the principles laid down by the Hon'ble Apex Court in the case of Pushpalatha N.V. vs. V.Padma and Others reported in ILR 2010 Karnataka 1484, held that the amended provisions of Sec. 6(1) of Hindu Succession Act is applicable to the pending proceedings and benefit was extended and therefore, by treating defendant Nos.6 to 8 as coparceners has modified the preliminary decree. Though defendants have not challenged the same, the FDP Court and the Appellate Court having entertained the applications, granted equal share to the daughters i.e., deceased defendant No.6 and defendant Nos.7 and 8.

(3.) Learned counsel appearing for the appellants/plaintiffs reiterating the grounds urged in the appeal memo, would vehemently argue and contend that the preliminary decree is passed much prior to amendment to Hindu Succession Act and therefore, he would contend that FDP Court erred in modifying the preliminary decree in granting equal share to the daughters. He would also point out that defendant Nos.6 to 8 married much prior to 1994 and therefore, the FDP Court erred in granting equal share by applying the amended provisions of Sec. 6. Though he does not dispute that FDP court can alter preliminary decree on account of change in law, but he would vehemently argue and contend that the present suit filed in 1995 is governed by the State amendment under Sec. 6(A) and therefore, he would contend that even if Sec. 6(A) is held to be repugnant, the said repugnancy is prospective and therefore, he would vehemently argue and contend that defendant Nos.6 to 8 are entitled for a share notionally and the benefit of amended Sec. 6 of Hindu Succession Act cannot be extended to the present case on hand.