PONDENTS(Orig. Decree Holders)Mr. S. Y. Mahajan, Advocate for the v. D. Salunke
Facts
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 11480 OF 20231.Mahadeo s/o Krishna Thavare2.Pramilabai @ Pamabai W/o. Krishna Thavare… PETITIONERS (Orig. Judgment debtors)Versus1.Kasudabai w/o Sidheshwar PaduuleDied Through LR.S1-A.Sakharbai wd/o Dadasaheb Bandgar1-B.Sheshrao s/o Sidheshwar Padule1-C.Saraswati @ Sarla wd/o Uttareshwear Bere1-D.Machindra s/o Sidheshwar Padule1-E.Gorakh s/o Sidheshwar Padule1-F.Sidheshwar s/o Sambhaji Padule2.Gayabai w/o Aba DevkarDied Through LR.S2-A.Sarubai w/o Harischandra Thavare2-B.Tulshidas S/O Aba Devkar2-C.Kamlakar s/o Aba Devkar3.Prayagabai wd/o Bhagwan Kolekar4.Indrabai Krishna ThavareDied Through LR.S respondent nos. 1 to 35.Bharat Krishna Thavare … RESPONDENTS(Orig. Decree Holders)Mr. S. Y. Mahajan, Advocate for the petitioners Mr. V. D. Salunke, Advocate for the respondents.CORAM : R. M. JOSHI, J.RESERVED ON:1st AUGUST, 2024PRONOUNCED ON :7th OCTOBER, 2024ORDER :-1.This writ petition takes exception in order dated 04/05/2023passed by 3rd C.J.J.D. Paranda below Exhibit 63 in Regular Darkhast No.wp11480.23.odt1 of 14 08/2011 in R.C.S No. 189/1997.2.The petitioners are judgment debtors in R. D. No. 08/2011which came to be filed for execution of judgment and decree passed inR.C.S. No. 189/1997 for partition and separate possession of the suitproperties. In the said properties respondents-plaintiffs were granted1/15th share. It is claimed of the petitioners that during the pendency ofR.C.S. No. 189/1997 Government of Maharashtra acquired portion of thesuit land for Sina Kolegaon project to the extent of land admeasuring 18H 92 R. It is claimed by the petitioners that out of the said total land,land admeasuring 4 H 72 R was owned and possessed by Indrabai andland admeasuring 14 H 20 R was owned and possessed by thepetitioners. The Special Land Acquisition Officer passed award. Thisaward was challenged before the Reference Court in LAR No. 317/2015.The said proceeding was decided on 30/11/2018. In the meantime therespondents who were owners and possession of land admeasuring 4 H72 R land filed separate LAR for enhancement of compensation in respectof their land the said proceeding is pending.3.After judgment and decree passed in R.C.S. No. 189/1997 on25/02/2010, respondents filed Regular Darkhast No. 08/2011 forexecution of decree. An application was filed at Exhibit 20 for sending thedecree to the Collector for execution. The execution Court by passingwp11480.23.odt2 of 14 order issued precept to the Collector for execution of the decree.Respondents thereafter filed an application below Exhibit 46 foramendment in the application and it is submitted that inadvertently thenames of the decree holder no.1-A to 1-E it is mentioned as judgmentdebtor and decree holder no.2-A to 2-C are mentioned as J.D. 2-A to 2-C. During the pendency of darkhast proceeding JD no.1 Indrabai died.Decree holder nos. 1 to 3 are the only heirs and amendment was sought.It was claimed by the petitioners by filing say contending that theapplicants are not only amending the darkhast but they are changingscope of the darkhast and seeking modification of decree is notpermissible in law. Execution Court, however, allowed the said applicationExhibit 46 by order dated 28/01/2020. (This order is not challenged).4.On the same day respondents filed another application videExhibit 48 contending that they have 1/15th share in the suit properties.It is alleged by the respondents that the petitioners incollusion with theland acquisition officer has withdrawn entire amount of compensationwherein they have share. In reply to application Exhibit 48, it was acontention of the petitioners that since the precept is already sent to theCollector for execution of decree, the application is not maintainable andthe court has no jurisdiction to entertain the application. It is submittedthat the award passed by the land acquisition authority is as per theprovisions of the Land Acquisition Act and Civil Court has no jurisdictionwp11480.23.odt3 of 14 to modify the award. Application Exhibits 46 and 48 were allowed withthe directions to the petitioners to deposit the amount received in LARNo. 317/2015. Petitioners being aggrieved by the said order dated28/01/2020 passed below Exhibit 48 of directing them to deposit theamount filed Writ Petition bearing No. 5413/2021. This Court allowed thepetition partly with the observation that execution Court cannot travelbeyond the decree. It is directed by this Court that the petitioners wouldretain the amount of compensation subject to their furnishing securitybefore the Execution Court to its satisfaction and undertaking that theywould, in case, it is so directed in future bring back money in terms ofthe report of the Collector. This Court in the said writ petition passedfurther order has observed that the Collector to look into the matter withregard to the reworking of the shares by Execution Court.5.It is further case of the petitioners that thereafter anotherapplication Exhibit 63 was filed by respondents to permit them to amendthe application for execution of decree. It is contended that the decreeholder nos.1 to 3 are having 7/10th share collectively and 7/13th shareeach and J.D. no.2 is having 1/10th share in J.D. 3 no. is having 1/5thshare in the suit property. It is the case of the petitioners before theExecution Court that the application is not maintainable, however, theExecution Court passed impugned order and hence, this petition. Thepetitioners thus challenged impugned order, inter alia, by raising issueswp11480.23.odt4 of 14 such as; (i)Civil Judge, Junior Division, Paranda while passing the order dated04/05/2023 failed to consider that the Executing Court cannot go behindthe decree and could not have decided rights of parties.(ii)Execution Court failed to consider that the Court passing thedecree has not granted any share to defendant no.1 Indrabai as such hershare cannot be ascertained by execution Court.6.Learned counsel for the petitioners submits that since inR.C.S. No. 189/1997 while passing judgment and decree no share wasgiven to the defendant and the shares in the suit properties were allottedonly to the plaintiff nos.1 to 3, the death of defendant i.e. Indrabaisubsequent to the passing of judgment and decree is in consequential. Itis his submission that the execution Court cannot go behind the decreenor would effect modification in the decree. To support his submission hehas placed reliance on the judgment of the Hon’ble Supreme Court incase Brakewel Automotive Components (India) Pvt. Ltd. Versus P.R.Selvan Alagappan, 2017 Legal Eagale (SC) 188. On these amongst othersubmissions he sought interference in impugned order.7.On the other hand the learned counsel for the respondentssupported the impugned order on the ground that during the pendencyof the suit amendment has been effected to Section 6 of the Hinduwp11480.23.odt5 of 14 Succession Act whereby a daughter has become coparcener. It is hissubmission that in view of the judgment in case of GanduriKoteshwaramma and Another Versus Chakiri Yanadi and Another, 2012AIR (SC) 169 it was open for the Court to modify the shares of theparties since they arose out of amended provisions of 2005.8.Issue before this court is as to whether it was open for theCourt below to pass impugned order permitting amendment to theexecution application whereby the claim was made on the basis of rightof Indrabai to get share in the suit properties. In order to appreciate hissubmissions of rival side it is relevant to take into considerationprovisions of Section 38 of the Code of Civil Procedure which reads thus:“38. Court by which decree may be executed .-A decree may be executed either by the Court whichpassed it, or by the Court to which it is sent for execution.”9.The afore stated provision clearly indicates that it is open forthe trial Court to execute decree itself or to sent the decree for itsexecution to the execution Court. Herein this case the judgment anddecree in R.C.S. No. 189/1997 has been passed by CJJD, Paranda. Theexecution also has been done by the same Court.10.Section 47 of the Code of Civil Procedure provides as under:“47. Questions to be determined by the Court executingdecree .-wp11480.23.odt6 of 14 (1)All questions arising between the parties to the suit inwhich the decree was passed, or their representatives, andrelating to the execution, discharge or satisfaction of thedecree, shall be determined by the Court executing thedecree and not by a separate suit.[* * *](3)Where a question arises as to whether any person is oris not the representative of a party, such question shall, forthe purposes of this section, be determined by the Court.[ Explanation I .-For the purposes of this section, a plaintiffwhose suit has been dismissed and a defendant againstwhom a suit has been dismissed are parties to the suit.Explanation II .-(a)For the purposes of this section, a purchaser ofproperty at a sale in execution of a decree shall be deemedto be a party to the suit in which the decree is passed; and(b)all questions relating to the delivery of possession ofsuch property to such purchaser or his representative shallbe deemed to be questions relating to the execution,discharge or satisfaction of the decree within the meaning ofthis section. ]11.According to the said provision all questions arising betweenthe parties to the suit in which the decree was passed or theirrepresentatives and relating to the execution discharge of satisfaction ofthe decree shall be determined by the Court executing the decree andnot by a separate suit. At this stage it would be relevant to take intoconsideration the judgment of the Hon’ble Supreme Court in case ofBrakewel Automotive Components (India) Pvt. Ltd. (supra). In paragraphNo. 19 of the said judgment, it is held as follows:-“19. It is no longer res integra that an Executing Courtcan neither travel behind the decree nor sit in appealover the same or pass any order jeopardizing the rightsof the parties thereunder. It is only in the limited caseswhere the decree is by a court lacking inherentjurisdiction or is a nullity that the same is rendered nonest and is thus inexecutable. An erroneous decree cannotwp11480.23.odt7 of 14 be equaled with one which is a nullity. There are nointervening developments as well as to render the decreeinexecutable.”12.Thus, it clear that the Execution Court can not travel behindthe decree nor sit in appeal over the same. However, in the instant case,the trial Court is the executing Court.13.The suit is filed in year 1997 and the same is decreed in theyear 2010. No doubt there is no challenge to the said decree by anyparty. The question arises as to the effect of amendment to Section 6 ofthe Act, it would be relevant to take note of said provision, which readsthus;“6. Devolution of interest in coparcenary property. —(1)On and from the commencement of the HinduSuccession (Amendment) Act, 2005, in a Joint Hindufamily governed by the Mitakshara law, the daughter of acoparcener shall,—(a)by birth become a coparcener in her own right in thesame manner as the son;(b)have the same rights in the coparcenary property asshe would have had if she had been a son;(c)be subject to the same liabilities in respect of the saidcoparcenary property as that of a son,and any reference to a Hindu Mitakshara coparcener shallbe deemed to include a reference to a daughter of acoparcener:Provided that nothing contained in this sub-section shall affect or invalidate any disposition oralienation including any partition or testamentarydisposition of property which had taken place before the20th day of December, 2004.(2) -----(3) ------(4 )------(5) Nothing contained in this section shall apply to awp11480.23.odt8 of 14
Legal Reasoning
partition, which has been effected before the 20th day ofDecember, 2004.Explanation. —For the purposes of thissection “partition” means any partition made byexecution of a deed of partition duly registered under theRegistration Act, 1908 (16 of 1908) or partition effectedby a decree of a court.”14.The said provision clearly indicates that the only exception tothe applicability of Section is in case of a partition which is effected 20thDecember, 2004 or the partition is effected by decree of a Court. Thishas been interpreted as the decree means final decree of the Court. It isthus clear that it is open for the Court to modify the decree to the extentof calculating shares of the respective parties till final decree is drawn.15.At this stage reference can be made to the judgment ofHon’ble Supreme Court in case of Ganduri Koteshwaramma (supra)wherein it is held in paragraph 17 as under:17. A preliminary decree determines the rights andinterests of the parties. The suit for partition is notdisposed of by passing of the preliminary decree. It is bya final decree that the immovable property of joint Hindufamily is partitioned by metes and bounds. After thepassing of the preliminary decree, the suit continues untilthe final decree is passed. If in the interregnum i.e. afterpassing of the preliminary decree and before the finaldecree is passed, the events and superveningcircumstances occur necessitating change in shares,there is no impediment for the court to amend thepreliminary decree or pass another preliminary decreeredetermining the rights and interests of the partieshaving regard to the changed situation. We are fortifiedin our view by a 3-Judge Bench decision of this Court inthe case of Phoolchand and Anr. v. Gopal Lal AIR 1967SC 1470 where in this Court stated as follows:wp11480.23.odt9 of 14 “We are of opinion that there is nothing in the Codeof Civil Procedure which prohibits the passing of morethan one preliminary decree if circumstances justify thesame and that it may be necessary to do so particularlyin partition suits when after the preliminary decree someparties die and shares of other parties are therebyaugmented.... So far therefore as partition suits areconcerned we have no doubt that if an event transpiresafter the preliminary decree which necessitates a changein shares, the court can and should do so;.… there is noprohibition in the Code of Civil Procedure against passinga second preliminary decree in such circumstances andwe do not see why we should rule out a secondpreliminary decree in such circumstances only on theground that the Code of Civil Procedure does notcontemplate such a possibility... for it must not beforgotten that the suit is not over till the final decree ispassed and the court has jurisdiction to decide alldisputes that may arise after the preliminary decree,particularly in a partition suit due to deaths of some ofthe parties....a second preliminary decree can be passedin partition suits by which the shares allotted in thepreliminary decree already passed can be amended andif there is dispute between surviving parties in thatbehalf and that dispute is decided the decision amountsto a decree....” (Emphasis supplied)16.The Hon’ble Supreme Court in paragraph no.18 has referredto the judgment in case of S. Sai Reddy v. S. Narayana Reddy and Ors.(1991) 3 SCC 647 wherein the question occurred before the SupremeCourt that where during the pendency of the proceeding in the suit forpartition before the trial Court or prior to passing of final decree, the actwas amended and as a result of which unmarried daughter becameentitled to the share in the joint family property. The unmarried daughtermade an application before the trial Court claiming their share in thewp11480.23.odt10 of 14 property after the amendment. The trial Court rejected the saidapplication on the ground that the preliminary decree had already beenpassed and specific shares of the parties have been declared and thus itwas not open for the daughters to claim share in the property by virtueof state amendment. The unmarried daughters preferred revision againstthe said order and High Court set aside the order and declared that inview of the Section 29(A) unmarried daughters were entitled to theshare in the joint family property. A direction was given to the trial Courtto determine the shares of unmarried daughters accordingly. The Hon’bleSupreme Court has observed :“...A partition of the joint Hindu family can be effected byvarious modes, viz., by a family settlement, by aregistered instrument of partition, by oral arrangementby the parties, or by a decree of the court. When a suitfor partition is filed in a court, a preliminary decree ispassed determining shares of the members of the family.The final decree follows, thereafter, allotting specificproperties and directing the partition of the immovableproperties by metes and bounds. Unless and until thefinal decree is passed and the allottees of the shares areput in possession of the respective property, the partitionis not complete. The preliminary decree whichdetermines shares does not bring about the finalpartition. For, pending the final decree the sharesthemselves are liable to be varied on account of theintervening events. In the instant case, there is nodispute that only a preliminary decree had been passedand before the final decree could be passed theamending Act came into force as a result of which Clause(ii) of Section 29A of the Act became applicable. Thisintervening event which gave shares to Respondents 2 to5 had the effect of varyGanduri Koteshwaramma(supra)ing shares of the parties like any superveningdevelopment. Since the legislation is beneficial andplaced on the statute book with the avowed object ofwp11480.23.odt11 of 14 benefitting women which is a vulnerable section of thesociety in all its stratas, it is necessary to give a liberaleffect to it. For this reason also, we cannot equate theconcept of partition that the legislature has in mind inthe present case with a mere severance of the status ofthe joint family which can be effected by an expressionof a mere desire by a family member to do so. Thepartition that the legislature has in mind in the presentcase is undoubtedly a partition completed in all respectsand which has brought about an irreversible situation. Apreliminary decree which merely declares shares whichare themselves liable to change does not bring about anyirreversible situation. Hence, we are of the view thatunless a partition of the property is effected by metesand bounds, the daughters cannot be deprived of thebenefits conferred by the Act. Any other view is likely todeprive a vast section of the fair sex of the benefitsconferred by the amendment. Spurious familysettlements, instruments of partitions not to speak oforal partitions will spring up and nullify the beneficialeffect of the legislation depriving a vast section ofwomen of its benefits.”.The above judgments therefore clearly lay down position oflaw in respect of the applicability of amended Section 6 of HinduSuccession Act. A daughter is therefore to be considered as a coparcenerand would get equal right to that of a son, as on the date of saidamendment. The only exception to the applicability of this provision to aparticular case is that there is registered deed of partition before 20thDecember, 2004 or there is a partition by decree of the Court. TheHon’ble Supreme Court has held in no uncertain terms that the partitionby decree is actual partition by metes and bounds and final decree isdrawn.wp11480.23.odt12 of 14 17.Reverting back to the facts of the present case, admittedly,no final decree has been drawn in this case. What has been done by thetrial Court is the precept has been issued to the Collector for effectingthe actual partition and it is only after actual partition of suit propertiesby metes and bound, a final decree can be passed by a Court. In suchcircumstances, since the execution Court is trial Court itself, this courtfinds no reason to hold that it was beyond the jurisdiction of the trialCourt to modify the decree to the extent of calculating shares of theparties in view of the amended provisions of Section 6 of the Act. In caseof Ganduri Koteshwaramma (supra) Hon’ble Supreme Court has heldthat, after passing of preliminary decree, suit continues until final decreeis passed if in interregnum, i.e. after passing of preliminary decree andfinal decree is passed, the events and supervening circumstances occurs,necessitating change in shares there is no impediment for the Court toamend preliminary decree or to pass another preliminary decree,redetermining rights and interest of parties having regard to change incircumstance. 18.It is pertinent to note that there is no dispute between theparties with regard to the applicability of the amended provisions ofSection 6 to the instant case. Properties in question are ancestralproperties. The subsequent event has necessitated change in the decreeand it was lawful for trial Court to modify preliminary decree. Evenwp11480.23.odt13 of 14 assuming that technically an application was required to be filed in suit,in view of the fact that since, the trial Court only is executing the saiddecree, in considered view of this Court it would be unnecessary to callupon the respondents to file an application in the original suit formodification of the decree and to seek same order. In the peculiar factsand circumstances of the case, impugned order is not perverse in orderto call any interference therein, in exercise of writ jurisdiction. Hence,petition stands dismissed.(R. M. JOSHI, J.)LATER ON19.After pronouncement of the order, learned counsel for thepetitioner seeks extension of interim relief granted by this Court for aperiod of six weeks in order to challenge the order passed by this Courtbefore the Hon’ble Supreme Court. 20.Learned counsel for the respondent opposes the said request.21.Order granting stay to the order impugned in this petition, isin force for a period more than a year now. This Court finds no reason orjustification not to accept the request of the petitioner. Order dated13/09/2024 stands extended for a period of six weeks from today. (R. M. JOSHI, J.)sspwp11480.23.odt14 of 14