DEVAMMA Vs. SHARADAMMA

JUDGEMENT

(1.) The plaintiffs have preferred these Writ Petitions challenging the order passed by the final decree Court refusing to enlarge the share of the plaintiffs'-daughters equal to that of the sons.

(2.) Plaintiffs-two daughters filed the suit for partition and separate possession of their legitimate share in the suit schedule properties. They claimed 1/3rd share each. The suit was contested. The trial Court decreed the suit of the plaintiffs granting them 2/3rd share and the defendant 1/3rd share. Aggrieved by the same, the defendant preferred an appeal. The Appellate Court modified the decree of the trial Court and granted 1/6th share each, to each of the daughters and the remaining share was given to the son. The said decree was passed in appeal on 8.6.2006. The said judgment is in accordance with the unamended Section 6 of the Hindu Succession Act. However, Section 6 of the Hindu Succession Act was amended and the present Section 6 is substituted in place of the earlier Section. The amendment came into force from 9.9.2005. Probably the said amendment was not brought to the notice of the Court and also there was a dispute whether the said amendment was prospective or retrospective. Thereafter, the plaintiffs filed the final decree proceedings.

(3.) In the final decree proceedings, in view of the pronouncement of the law by the Apex Court making it clear that, the amended Section 6 is retrospective in operation and the daughter is entitled to a share equal to that of the son and only in cases where a partition is effected by a decree of the Court prior to the commencement of this amended provision, they could be denied the said right, the daughters filed an application claiming 1/3rd share in the property. In support of their contention they relied on two judgments of the Supreme Court in the case of PREMA vs NANJE GOWDA AND OTHERS, 2011 6 SCC 462and GANDURI KOTESHWARAMMA AND ANOTHER vs CHAKIRI YANADI AND ANOTHER, 2011 9 SCC 788 . However, the final decree Court rejected the said application on the ground that the daughters have not challenged the judgment and decree passed in R.A. No.7/2005, it has reached finality, the prayer of the petitioners-plaintiffs to reopen O.S. No. 422/1997 for further trial is unknown to law. The Court cannot alter the preliminary decree and shares allotted by the appellate Court. The principle laid down in the aforesaid judgments is not applicable to the facts of the case on hand. In the present proceedings already Court Commissioner is appointed and he has submitted a report in compliance to the decree. Aggrieved by the said order, the petitioners have preferred the present Writ Petitions.