Case Note & Summary
The petitioner, Jayendra Sahdeo Abnave, challenged an order passed by the learned Adhoc District Judge, Shrirampur in Civil Misc. Application No. 5 of 2018. The background of the case involves a partition suit filed by respondent Nos. 1 and 2 (daughters) against the petitioner and other defendants. The suit was decreed on 18th October 2013, and an appeal was decided on 27th June 2016, determining the shares of the parties. Thereafter, execution proceedings were initiated. During execution, the daughters filed an application claiming that they have equal rights in ancestral property under the amended Section 6 of the Hindu Succession Act, 2005, and sought revision of their shares. The learned Adhoc District Judge allowed the application, leading to the present writ petition. The legal issue was whether the shares of daughters as coparceners can be revised in execution proceedings after a preliminary decree for partition. The petitioner argued that the preliminary decree had become final and could not be modified. The respondents contended that the preliminary decree had not attained finality and the amendment to Section 6 applied retrospectively. The court analyzed the nature of a preliminary decree in partition suits and held that it does not become final until the final decree is passed. Since the execution was pending and no final decree had been passed, the court had the power to revise shares in light of the change in law. The court dismissed the writ petition, upholding the order of the lower court and allowing the daughters' shares to be revised.
Headnote
A) Hindu Succession Act - Coparcenary Rights of Daughters - Section 6 Amendment - Revision of Shares - The court considered whether daughters' shares as coparceners under the amended Section 6 of the Hindu Succession Act, 2005 can be revised in execution proceedings after a preliminary decree for partition. The court held that since the preliminary decree had not attained finality and the matter was pending execution, the shares of the daughters could be revised to reflect their equal coparcenary rights. (Paras 5-7) B) Civil Procedure Code - Execution Proceedings - Preliminary Decree - Finality - The court examined whether a preliminary decree for partition becomes final before execution. It held that a preliminary decree does not become final until the final decree is passed, and therefore, the court can modify shares in execution proceedings if there is a change in law. (Paras 5-7)
Issue of Consideration
Whether the shares of daughters as coparceners can be revised in execution proceedings after a preliminary decree for partition, in light of the amendment to Section 6 of the Hindu Succession Act, 2005.
Final Decision
The writ petition was dismissed. The order passed by the learned Adhoc District Judge, Shrirampur in Civil Misc. Application No. 5 of 2018 was upheld.
Law Points
- Hindu Succession Act
- 2005
- Section 6 amendment
- coparcenary rights of daughters
- partition decree
- execution proceedings
- revision of shares
