Opposite Party, since in the case of Prakash and others v. Phulavai and others, reported in
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1113 of 2018 Sanjeet Bagh and others Krupaboti Bagh -versus- …. Petitioners Mr. S.S.Rao, Advocate ….
Legal Reasoning
Opp. Party Mr. G.N.Sahu, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 04.04.2023 9. 1. This matter is taken up through Hybrid mode. 2. Order dated 23rd March, 2018 (Annexure-8) passed by learned Senior Civil Judge, Rayagada in CS No.59 of 2009 (FD) is under challenge in this CMP, whereby the objection to the maintainability of the Final Decree has been overruled. 3. Mr. Rao, learned Counsel for the Petitioners submits that CS No.59 of 2009 was filed by the Opposite Party for partition and allotment of 1/3rd share in her favour. Preliminary decree was passed on 30th January, 2012 with the following order:- “The suit be and the same is decreed preliminarily on contest against all the defendants without cost. The 1/3rd share of the plaintiff over the suit land is hereby declared. The parties are directed to effect amicable partition within one months hence failing which the plaintiff can approach this Court for partition through the Court.” Assailing the same, the Petitioners preferred RFA No.4 of 2012, which was dismissed on contest vide judgment dated 20th Page 1 of 5 // 2 // November, 2013 (Annexure-4). Subsequently, Final Decree proceeding was initiated at the instance of the Plaintiff/Opposite Party. In the Final Decree proceeding, the Petitioners raised objection with regard to maintainability of the proceeding stating that the Court should not draw the final Decree allotting 1/3rd share in favour of the Plaintiff/Opposite Party, since in the case of Prakash and others Vs. Phulavai and others, reported in 2015 (II) OLR (SC) 1010, it is held that since the partition has already opened by the time Hindu Succession (Amendment) Act, 2005 came into force, the Opposite Party/Plaintiff will not be entitled to the share as held in the preliminary decree. It is his submission that Raghunath Bagh is the common ancestor died on 20th February, 2001, i.e., before 9th September, 2005, when Hindu Succession (Amendment) Act, 2005 came into force. On the death of common ancestor, the succession opened and the suit land was no more available to be partitioned. Thus, the Plaintiff will not be entitled to share as held in the preliminary decree. Learned trial Court most erroneously held that the Petitioners having failed in appeal assailing the preliminary decree cannot raise the same issue in Final Decree proceeding. Accordingly, learned appellate Court rejected the objection and posted the matter for appointment of Civil Court Commissioner. 4. Mr. Sahu, learned counsel for the Opposite party submits that assailing the preliminary decree passed in CS No.59 of 2009, the Petitioners had preferred RFA No.4 of 2012, which was also dismissed vide judgment dated 20th November, 2013 (Annexure-4). As such, learned trial Court has not committed any error in holding that the Final Decree is Page 2 of 5 // 3 // maintainable. He also relied upon the decision in the case of Vineeta Sharma Vs. Prakash Sharma, reported in (2020) 9 SCC 1, in which at para-137, it is held as under:- “137. Resultantly, we answer the reference as under: 137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities. 137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004. 137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005. 137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. 137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.” Page 3 of 5 // 4 // In that view of the matter, the claim of the Petitioners is not sustainable as rightly held by learned trial Court. He, therefore, prays for dismissal of the CMP. 5. Considering the rival contentions of the parties and on perusal of record, it appears that the suit was preliminarily decreed on 30th January, 2012 allotting 1/3rd share in favour of the Plaintiff/Opposite party. The Petitioners have tested the correctness of the preliminary decree passed in CS No.59 of 2009 in RFA No.4 of 2012, which was also dismissed on 20th November, 2013. Thus, the plea that the Plaintiff is not entitled to 1/3rd share as directed in the preliminary decree is no more available to be raised by the Petitioners. Further, in the case of Vineeta Sharma (supra) it has been categorically held that a daughter is a coparcener and she has every right to inherit the ancestral property, as a son. Death of the common ancestor (coparcener) is immaterial, as has been held in the said case. In that view of the matter, learned trial Court had no scope to entertain the objection raised by the Petitioners in the Final Decree Proceeding. At this stage, Mr. Rao, learned counsel for the Petitioners contended that the Petitioners in the changed circumstance are entitled to claim for a further preliminary decree. Since the circumstance, i.e., the death of the common ancestor as well as coming into force of Hindu Succession (Amendment) Act, 2005 had taken place before the suit for partition was filed, no prayer for a fresh preliminary decree can be entertained by learned trial Court. In addition to the above, the ratio of Vineeta Sharma (supra) does not leave any scope to Page 4 of 5 // 5 // the Petitioners to raise any further objection with regard to the validity of the preliminary decree passed in CS No.59 of 2009. 6. Accordingly, the CMP being devoid of any merit stands dismissed. 7. Interim order dated 1st July, 2019 passed in IA No.1200 of 2018 stands vacated. Issue urgent certified copy of the order on proper application. (K.R. Mohapatra) Judge ` s.s.satapathy Page 5 of 5