Second Preliminary Decree In Partition Suits Can Be Passed To Reflect Changing Law Or Facts: Andhra Pradesh High Court
The Bench noted that doctrine of merger dictates that only appellate courts can modify decrees validated by higher forums.
The Andhra Pradesh High Court has clarified that a partition suit remains pending until the passing of a final decree, allowing for the issuance of a second preliminary decree to reflect changes in law or fact. The Court held that the finality attached to a preliminary decree under Section 97 CPC does not preclude modifications necessitated by supervening events, such as the death of a party or legislative amendments, provided the final decree has not yet been engrossed.
The Bench noted that while trial courts generally retain the power to modify their own decrees, the doctrine of merger, applies when a decree has been contested and decided on merits by a superior court. In such instances, even if a statutory change like the 2005 Amendment to the Hindu Succession Act occurs, the application for a second preliminary decree must be moved before the appellate court whose decree holds the field. The Court noted that inherent powers under Section 151 of the CPC are the appropriate vehicle for such corrections when Section 152 (limited to clerical errors) is insufficient.
Justice Ravi Nath Tilhari and Justice Balaji Medamalli observed, “…finality attached to the preliminary decree shall not affect passing of the second preliminary decree due to change in law or death or birth of a person affecting the shares of the parties under the original preliminary decree. Such a contingency is not contemplated by Section 97 CPC. So, in the specified changed circumstances of fact or of law as aforesaid, the preliminary decree is open for correction and modification even if the appeal was not preferred. Section 97 CPC will not bar such modification or correction in such circumstances”.
Advocate Virupaksha Dattatreya Gouda appeared for the applicants and Advocate Salar Aatif appeared for the respondents.
In the matter, the dispute was regarding the estate of late Vale Mareppa, who held a half-share in the suit property. Following his death, his widow (P1) and daughter (P2) filed a suit for partition against the heirs of his son, Busappa.
Initially, the trial court in 1989 denied the daughter a share in the coparcenary, but on appeal in 2003, the High Court modified the decree, granting the widow, daughter, and son a 1/3rd share each in Mareppa’s interest. During the prolonged pendency of the final decree proceedings, the widow passed away, and the legal landscape regarding daughters' coparcenary rights was transformed by the Supreme Court’s judgment in Vineeta Sharma v. Rakesh Sharma (2020) 9 SCC 1.
The applicants originally sought a modification of the preliminary decree before the trial court, while the trial court initially granted the modification, the Court later set that order aside in a revision petition, ruling that because the original preliminary decree had merged with the High Court’s appellate judgment dated September 26, 2003, the trial court lacked the jurisdiction to alter it.
Consequently, the parties moved the present interlocutory applications before the High Court to seek a second preliminary decree.
Now, the Bench applied the Vineeta Sharma precedent, noting that since the daughter was alive at the time of the 2005 amendment and no final partition had occurred by December 2004, she was entitled to a share equal to that of a son. Furthermore, the death of the widow (P1) meant her share devolved equally upon the surviving son and daughter, leading to a mathematical recalculation where each now held a 1/2 share of their father’s interest.
The Division Bench summed the discussion, in the following paragraphs:
(i) There can be more than one preliminary decree in a partition suit under the circumstances e.g. a) death or birth effecting the shares of the parties or/and b) the change in the legal position such as substituted Section 6 of the Hindu Succession Act substituted by Act No.39 of 2005 granting equal share to the daughter in the coparcenary of the father, subject to the fulfillment of the conditions imposed by the substituted Section 6 itself.
(ii) The final decree is to be passed in consonance with the preliminary decree. If the preliminary decree requires to be modified in view of the changed circumstances, factual or legal, an application for modification of or for fresh second preliminary decree shall be maintainable so long as the final decree proceedings are pending but not afterwards.
(iii) A preliminary decree which has not been challenged under Section 97 CPC attains finality, which shall ordinarily preclude from disputing its correctness in any appeal which may be preferred from the final decree.
(iv) However, that finality attached to the preliminary decree shall not affect passing of the second preliminary decree due to change in law or death or birth of a person affecting the shares of the parties under the original preliminary decree. Such a contingency is not contemplated by Section 97 CPC. So, in the specified changed circumstances of fact or of law as aforesaid, the preliminary decree is open for correction and modification even if the appeal was not preferred. Section 97 CPC will not bar such modification or correction in such circumstances.
(v) If no appeal has been filed against the preliminary decree of the Trial Court; or the appeal has been filed but dismissed under Order 41 Rule 11 CPC, the Trial Court shall have the power and jurisdiction to pass second preliminary decree or to make modifications in the preliminary decree passed by it.
(vi) If in appeal the Trial Courts decree has been affirmed by dismissal of the appeal on merits, but not under Order 41 Rule 11 CPC i.e., summary dismissal, or where the appellate Court allows the appeal and modifies the Trial Court’s preliminary decree, any modification in the circumstances necessitating such modification, can be made only by the appellate Court, on the doctrine of merger of the Trial Court’s decree in the appellate Court’s decree.
(vii) Under Section 152 CPC only clerical or arithmetical mistakes can be corrected. Any correction or change in the preliminary decree, under any circumstance, other than clerical or arithmetical mistake, may be because of the change in the factual or legal position effecting the share of the parties which keeps on fluctuating till the partition suit is decided finally, cannot be made under Section 152 CPC.
(viii) In such a situation as in clause (vii) supra the inherent powers of the Court saved by Section 151 CPC can be invoked, subject to the scope and limitations on exercise of power under Section 151 CPC.
(ix) In a partition suit if any change factual or legal takes place the change in the shares of the parties already determined in the preliminary decree, and the final decree proceedings being pending, such change can be taken due care of and given effect by the trial Court where the final decree proceedings are pending or even by the appellate Court in case the appeal is pending against the final decree.
(x) Under the original appellate preliminary decree, the daughter (P2) was given 1/6 share equal to son Busappa even though substituted Section 6 of Hindu Succession Act was not there at that time but what has been given to (P2) cannot be taken away now, in view of the substituted Section 6 of Hindu Succession Act and the law declared in Vineeta Sharma (supra) under which a daughter is entitled in the coparcenary of her father equal to a son.
(xi) Mandlem Veeramma @ Eramma daughter (P2) was alive on 09.09.2025. There was no partition of the coparcenary property of her father before 20.12.2004. The final decree proceedings are still pending.
(xii) Vale Nagamma the mother (P1) has died. Her 1/6th share as determined in the original preliminary decree shall equally be succeeded by Mandlem Veeramma @ Eramma (daughter) (P2) and Busappa (son) under Section 15(1)(a) of the Hindu Succession Act. So both, daughter (P2) and son shall have ½ share each in ½ of their father.
(xiii) The preliminary decree dated 26.09.2003 is required to be modified to the extent of declaring and allotting ½ share to Busappa (son) and ½ share to Mandlem Veeramma @ Eramma (daughter) in the ½ share of their father Vale Mareppa, in his coparcenary i.e., 1/4th each.
(xiv) The original appellate preliminary decree dated 26.09.2003 shall be modified to the extent as in clause (xiii) supra, only. The rest remaining the same. The second preliminary decree shall be drawn accordingly.
The Court allowed the applications and ordered the modification of the appellate preliminary decree dated September 26, 2003.
It directed the registry to draw up a second preliminary decree declaring the son (Busappa) and daughter (P2) entitled to a 1/2 share each in the 1/2 share of late Vale Mareppa. The trial court was directed to proceed with the final decree proceedings in accordance with this modified share distribution.
Cause Title: Y. Rukinamma & Ors. v. Sagire Nagendramma & Ors. (I.A. Nos. 1, 2, 3 & 4 of 2026 in A.S. No. 118 of 1990)
Appearances:
Applicants: Virupaksha Dattatreya Gouda and T. Nikhilesh, Advocates.
Respondents: Salar Aatif and P. Rajasekhar, Advocates.