(Prayer: This Writ Petition is filed under Article 227 of the Constitution of India, praying to a) issue a writ in the nature of certiorari quashing the impugned order dated 12.01.2023 on IA No.3 in FDP No.23/2020 on the file of the III Additional Senior Civil Judge and JMFC, Ranebennur vide Annexure-G, in the interest of justice. b) issue any other writ, order or direction as this Hon'ble Court deems fit to grant in the facts and circumstances of this case in the interest of justice and equity.)

Oral Order

Ashok S. Kinagi, J.

1. This writ petition is filed by the petitioner challenging the order on IA No 3 dated 12.01.2023 passed in FDP No. 23 of 2020 by the learned III Addl. Senior Civil Judge and JMFC, Ranebennur vide Annexure G.

2. Brief facts leading rise to the filing of this petition are as follows:

          The mother of the petitioners filed the suit in OS No 165 of 2014 seeking the relief of partition and separate possession of her ½ share in the suit schedule properties. She died during the pendency of the suit, her LR's were brought on record. The trial court decreed the suit of the petitioners mother holding that the original plaintiff Smt. Rudramma, are entitled to ½ share in all the suit properties vide judgment and decree dated 10.04.2018. Against the said judgment and decree, the respondents No 2 to 4 filed the Regular Appeal in R.A. No. 128 of 2018. The petitioners herein initiated the Final decree proceedings in FDP No 23 of 2020. The Regular Appeal in RA No 128 of 2018 came to be allowed modifying the shares and held that the petitioners are entitled to the notional share i.e., 1/4th in the suit properties. The Respondents No 2 to 4 initiated the final decree proceedings in FDP 30 of 2020 to get partitiom effected in terms of the judgment and decree in R.A. No. 128 of 2018. Further, the petitioners filed an application in I.A. No. 3 seeking the modification of preliminary decree in terms of the dictum laid down by the Honble Apex court in the case of Vineeta Shara v Rakesh Sharma. The respondents objected the said application by filing their objections. The trial court dismissed I.A. No. 3 by passing the impugned order at Annexure G. being aggrieved by the same, the petitioners filed this writ petition.

3. Heard the arguments of the learned counsel for the petitioners.

4. Learned counsel for the petitioners submits that in view of the dictum in the case of Vineeta Sharma v Rakesh Sharma reported in AIR 2020 SC 3717, the daughters are entitled to an equal share with that of a son. Further, he submits that, the trial court without considering the law laid down in the case of Prema Vs. Nanje Gowda and Others reported in (2011) 6 SCC 462 and in the case of Ganduri Koteshwaramma and Another Vs. Chakiri Yanadi and Another reported in (2011) 9 SCC 788, has passed the impugned order. She submits that the petitioners are entitled to the half share in the suit properties. The impugned order passed by the trial court is arbitrary and erroneous. Accordingly, on these grounds, she prays to allow the petition.

5. Perused the records and considered the submissions of the learned counsel for the parties.

6. It is undisputed that one Rudramma i.e., the mother of the petitioners filed the suit in OS No 165 of 2014 seeking the relief of partition and separate possession of her ½ share in the suit schedule properties. The trial court decreed the suit of the petitioners holding that the original plaintiff Smt. Rudramma, are entitled to ½ share in all the suit properties vide judgment and decree dated 10.04.2018. Against the said judgment and decree, the respondents No 2 to 4 filed the Regular Appeal in R.A. No. 128 of 2018. The petitioners herein initiated the Final decree proceedings in FDP No 23 of 2020. The Regular Appeal in RA No 128 of 2018 came to be allowed modifying the shares and held that the petitioners are entitled to the notional share i.e., 1/4th in the suit properties. Further, the petitioners filed an application in I.A. No. 3 seeking the modification of preliminary decree. The respondents objected the said application by filing their objections. The trial court after hearing the learned counsel for the parties, dismissed I.A. No. 3 by passing the impugned order at Annexure G.

7. From the perusal of the judgment and decree in the Regular Appeal No. 128 of 2018, it is evident that, the petitioners herein are granted with 1/4th share in all the suit properties. However, post drawing of the decree in the Regular Appeal No 128 of 2018, the Hon'ble Apex court in the case of Vineeta Sharma V. Rakesh Sharma held that the daughters stand on the same footing with that of a son.

8. The Hon'ble Apex Court in the case of Prema Vs. Nanje Gowda and Others (2011) 6 SCC 462, has held in paragraph Nos.17 to 19 as follows:

          "17. In this case, the Act was amended by the State Legislature and Sections 6-A to 6-C were inserted for achieving the goal of equality set out in the Preamble of the Constitution. In terms of Section 2 of Karnataka Act 23 of 1994, Section 6-A came into force on 30-7-1994 i.e. the date on which the amendment was published. As on that day, the final decree proceedings were pending. Therefore, the appellant had every right to seek enlargement of her share by pointing out that the discrimination practised against the unmarried daughter had been removed by the legislative intervention and there is no reason why the court should hesitate in giving effect to an amendment made by the State Legislature in exercise of the power vested in it under Article 15(3) of the Constitution.

          18. The issue which remains to be considered is whether the learned Single Judge of the High Court was justified in refusing to follow the law laid down in S. Sai Reddy v. S. Narayana Reddy [(1991) 3 SCC 647] on the ground that the same was based on the judgment of the three-Judge Bench in Phoolchand v. Gopal Lal [AIR 1967 SC 1470] and a contrary view had been expressed by the larger Bench in Venkata Reddy v. Pethi Reddy [AIR 1963 SC 992] .

          19. In Phoolchand v. Gopal Lal [AIR 1967 SC 1470] this Court considered the question whether the preliminary decree passed in a partition suit is conclusive for all purposes and the court before whom final decree proceedings are pending cannot take note of the changes which may have occurred after the passing of the preliminary decree. The facts of that case were that appellant, Phoolchand had filed a suit in 1937 for partition of his 1/5th share in the plaint scheduled properties. Sohanlal (father of the appellant), Gopal Lal (brother of the appellant), Rajmal [minor adopted son of Gokalchand (deceased), who was another brother of the appellant] and Smt Gulab Bai (mother of the appellant) were impleaded as the defendants along with two other persons. The suit was contested up to Mahkma Khas of the former State of Jaipur and a preliminary decree for partition was passed on 1-8- 1942 specifying the shares of the appellant and the four defendants. Before a final decree could be passed, Sohanlal and his wife Smt Gulab Bai died. Gopal Lal claimed that his father Sohanlal had executed a will in his favour on 2-6- 1940 and bequeathed all his property to him. Appellant Phoolchand challenged the genuineness of the will. He also claimed that Smt Gulab Bai had executed a sale deed dated 19-10-1947 in his favour, which was duly registered on 10- 1-1948. Gopal Lal challenged the sale deed by contending that Gulab Bai had executed the sale deed because she was a limited owner of the share in the ancestral property. The trial court held that the will allegedly executed by Sohanlal in favour of Gopal Lal had not been proved but the sale deed executed by Gulab Bai in favour of Phoolchand was valid. As a sequel to these findings, the trial court redistributed the shares indicated in the preliminary decree. As a result, Phoolchand's share was increased from one- fifth to one-half and Gopal Lal's share was increased from one-fifth to one-fourth and that of Rajmal from one-fifth to one-fourth. The High Court allowed the appeal filed by Gopal Lal and held that Gulab Bai was not entitled to sell her share in favour of appellant Phoolchand. The High Court also held that the will executed by Sohanlal in favour of Gopal Lal was genuine. One of the points considered by this Court was whether there could be more than one preliminary decree."

9. From the perusal of paragraph No.17 of the above judgment, it clearly indicates that, the State Legislature has amended the Act, where Sections 6A to 6C were inserted in terms of Section 2 of the Karnataka Act 23 of 1994, which came into force on 30.07.1994, i.e., on the date when the amendment was published. As on that date, the final decree proceedings were pending. The petitioners had every right to seek enlargement of her share by pointing out that the discrimination practiced against the unmarried daughter had been removed by the legislative intervention and there is no reason why the Court should hesitate in giving effect to an amendment made by the State Legislature in exercise of the power vested in it under Article 15(3) of the Constitution. The Hon'ble Apex Court in the case of Vineeta Sharma (supra), has also referred to its judgment in the case of Phoolchand and Another Vs. Gopal Lal 1967 SCC OnLine SC 266.

10. The Hon'ble Apex Court in the case of Ganduri Koteshwaramma and Another Vs. Chakiri Yanadi and Another (2011) 9 SCC 788, has held that there can be more than one preliminary decree, and that the law is well settled. Considering the judgment of the Hon'ble Apex Court in case of Ganduri Koteshwaramma (supra), the Trial Court ought to have allowed I.A No. 3 filed by the petitioners herein seeking modification of shares.

11. For the foregoing discussion, the impugned order passed by the trial court deserves to be set aside. The trial court was not justified in the passing the impugned order at Annexure G. The order passed by the trial court is contrary to the law laid down by the Honble Apex court in the cases referred above. Accordingly, I proceed to pass the following order:

ORDER

          i. The writ petition is allowed.

          ii. The impugned order at Annexure-G is set aside.

          iii. Consequently, I.A. No.3 is allowed.

          iv. The petitioners herein are entitled to ½ share in the suit properties.