P.S. Narayana, J.
1. This Court on 24.8.1998 made the following order:
Admit, in view of the substantial questions of law raised in ground No. 11-A of the Memorandum of grounds of appeal are as hereunder:
(A) Whether the judgment and decree passed by the lower appellate Court is valid in law, since the oral and documentary evidence of the parties is not considered and discussed?
(B) Whether the sales in favour of the appellants by the respondent No. 1 are illegal and invalid for want of proof of family necessity ?
(C) When the sales are by the kartha and the father, whether non-proof of family necessity is sufficient to decree the suit without proof of immoral purposes by the father ?
(D) Whether the lower appellate Court is justified in finding that the sales are not properly supported by sale consideration ?
2. Sri Mahipati Rao, the learned Counsel representing the appellants-defendants 2 to 7 had pointed out the substantial questions of law and would maintain that the findings recorded by the appellate Court on the aspect of legal necessities are unsustainable findings. The learned Counsel would also submit that there is no acceptable evidence placed before the Court relating to the immoral life being lead by the father. The Counsel would also maintain that the appellate Court was more guided away by the recitals in the sale deeds and also more guided away by the fact that consideration was not paid before the Sub-Registrar. The Counsel would also maintain that specific plea had been taken that certain survey numbers had been omitted to be shown in the plaint schedule though they are family properties. The learned Counsel specifically pointed out that portion of the pleading where it was pleaded in the written statement that there are two other survey numbers belonging to the family of the first defendant, which are not shown in the plaint schedule, they are Survey Nos. 229 and 230 of Veljerla Village. The Counsel also pointed out that it was also further pleaded in the written statement that there is also costly well in Survey No. 229. The learned Counsel would also point out that despite the specific stand taken that no steps had been taken to bring on record all the family members. Further the learned Counsel pointed out that Ex.B7 certified copy of the plaint in OS. No. 67 of 1988 was marked. The Counsel would also maintain that this is a suit for partition filed by the first defendant's father and it is not in controversy that these properties were not shown in the plaint schedule. The Counsel would also maintain that the appellate Court while referring to Ex.B7 recorded certain vague findings in a different context. While elaborating his submissions, the learned Counsel would maintain that it is a suit for partition, which was thought of by the children of the first defendant at the instance of the first defendant to defeat the alienations and nothing more and nothing beyond thereto and in a suit of this nature always the alienees are entitled to the equity and when that being so, all the properties belonging to the family should be shown so that while working out the equities proper justification would be made even though the Court may be of the opinion that the children of the first defendant would be entitled to the respective shares. The Counsel would also maintain that though specific plea had been taken, no specific issue relating to the plea of partial partition as such had been settled and in this view of the matter also, the findings recorded by the appellate Court cannot be sustained. The learned Counsel placed strong reliance on certain decisions in support of his submissions.
3. Per Contra, Sri Prathap Reddy, the learned Counsel representing the contesting respondents-plaintiffs would maintain that the son and daughters being coparceners are entitled to their respective shares, by virtue of Section 29A of the Hindu Succession Act, as amended by the State of Andhra Pradesh and also since the litigation is pending in the light of Section 6 as amended by Act 39/05. The Counsel would also maintain that the appellate Court had considered the oral and documentary evidence in proper perspective and recorded appropriate findings. While making elaborate submissions the Counsel had drawn attention of this Court to the relevant portion of the findings recorded by the appellate Court. The learned Counsel also placed strong reliance on the decision in Darshan Singh v. Rampal Singh and Anr. 1992 Supp. (1) SCC 191, to substantiate his submissions that when the litigation is pending, the plaintiffs are entitled to the benefit of Amending Legislations.
4. Heard the Counsel on record. Perused the oral and documentary evidence available on record and also the findings recorded by the Court of first instance and also the appellate Court.
5. For the purpose of convenience, the parties would be referred to as 'plaintiffs' and 'defendants' as shown in OS No. 120 of 1984 on the file of the Court of District Munsif (Junior Civil Judge) at Shadnagar. The suit is filed for partition and separate possession of the plaint 'A' and 'B' schedule properties by metes and bounds and to allot one such share to the plaintiff No. 1 and another such share to defendant No. 2 and further division in the share of the first defendant to be made in favour of the plaintiffs 2 and 3 as well. It is averred in the plaint that the first plaintiff is the son and plaintiffs 2 and 3 are the minor daughters of the first defendant and defendants 2 to 9 are the purchasers of the plaint schedule properties and the said plaint schedule properties are the ancestral properties of the plaintiffs having acquired by their grandfather and the first defendant as kartha of the family mismanaging the properties but also creating encumbrances over the suit schedule properties without any legal necessity for the benefit of the family and the first defendant is in the habit of spending money in drinking and leading immoral life. Thus, the alienations made by the first defendant, as kartha of the joint family is neither for the benefit of the family nor supported by any legal necessity and hence the said alienations are not binding on the plaintiffs. The first defendant did not appear before the Court and the first defendant and defendants 8 and 9 were set ex parte.
6. Defendants 2 to 7 filed their written statement specifically denying the allegations that the first defendant was mismanaging the family properties and also further denied that the alienations are not for family necessities and not for the benefit of the family. It was also further pleaded that the mother of the first defendant expired in November 1982 and first defendant was indebted and could not get money for performing rites of his mother and hence he sold an extent of Ac:3-00 of land in Survey No. 47 for Rs. 1,800/- to one Buramoni Ramaiah under a registered sale deed that the said Ramaiah sold the suit land to defendant No. 1 for Rs. 1,800/- on 14.5.1984 under registered sale deed and handed over possession. Later for desilting the well known as Chouta bai in Survey No. 35 and for purchasing buffalows, the defendant No. 1 sold another portion of land Acs:4-20 guntas in the said survey number for Rs. 2,700/- under registered sale deed on 25.5.1984 and handed over the possession to defendant No. 7. It was also pleaded that in the year 1983, defendant No. 1 was badly in need of money to pay loans due to the Government and defend the case in the Land Reforms Appellate Tribunal to save his lands and has to meet the medical expenses of his wife and hence he sold an extent of Ac:0-15 guntas in Survey No. 33 and a portion of Acs:2-05 guntas in Survey No. 35 and an extent of Acs:5-02 guntas in Survey No. 54 of Veljarla Village separated through different sale deeds, that the defendant No. 1 sold Acs:3-00 of land in Survey No. 54 to the defendant No. 5 for Rs. 1,800/- under a registered sale deed dated 4.7.1984. He also sold a portion of Ac:01-01 gunta in Survey No. 54 to defendant No. 6 for Rs. 600/- under registered sale deed dated 4.7.1983. He also sold Ac: 1-01 gunta of land in Survey No. 54 to defendant No. 6 under a registered sale deed dated 8.7.1983. Further it was pleaded that defendant No. 1 sold a portion of Acs:2-00 of land in Survey No. 35 to defendant No. 2 and defendant No. 3 for Rs. 1,000/- and executed a sale deed dated 28.3.1983 and in May 1983 defendant No. 1 sold an extent of Ac:0-05 guntas in Survey No. 35 and a portion of Ac:0-15 guntas in Survey No. 33 to defendant No. 2 and defendant No. 3 under a registered sale deeds dated 5.5.1983. Further defendant No. 1 sold the said lands for the family necessities and also for improving the other properties of the family. Further it was pleaded in the written statement that defendant No. 1 was bent upon to take back the lands already sold and with an ulterior motive had put forth the guardian of the plaintiff who is his own wife and got filed the present suit with false and baseless averments and that the plaintiff's guardian filed the suit with false and baseless averments at the instance of defendant No. 1 and that the suit is not maintainable unless the sale deeds are cancelled and declared void and hence the suit be dismissed with costs.
7. On the strength of these pleadings, the following issues were settled:
(1) Whether defendants 2 to 7 purchased the suit property and are in possession of the same ?
(2) Whether defendant No. 1 the natural guardian of the plaintiff sold the suit properties through registered sale deeds for family necessities, and if so, to what effect ?
(3) Whether the suit is maintainable without cancellation of the sale deed executed by defendant No. 1 ?
(4) Whether defendants 2 to 7 purchased the portions of the suit land and in possession of the same ?
(5) Whether the suit valuation and Court Fee paid is correct ?
(6) Whether defendant No. 1 sold the land to meet the funeral expenses of his mother ?
(7) To what relief ?
8. On behalf of the plaintiffs, PWs. 1 to 5 were examined, ExsA1 to A4 were marked. On behalf of defendants, DWs.1 to 7 were examined and Exs.B1 to B15 were marked.
9. The Court of first instance on appreciation of oral and documentary evidence recorded reasons in detail and ultimately decreed the suit to the extent of Acs:8-04 guntas out of Survey Nos. 20 (Acs:3-30 guntas), 32 (Ac:1-02 gts), 34 (0-30 gts), 35 (Ac:1-15 gts), 47 (0-10 guntas) and 228 (0-37 guntas), which is now in possession of defendant No. 1 and excluding the entire land sold to D2 to D7. The suit in respect of the rights of the plaintiffs 2 and 3 was dismissed, as having regard to the fact that they are not entitled to the benefit of Section 29A of the Hindu Succession Act, as amended in 1985 made a preliminary decree to the effect that the first plaintiff is entitled to half share out of the land as shown above, which is in possession of defendant No. 1 and 'B' schedule house and the plaintiff No. 1 be allotted his half share out of the said land and house by effecting divisions by metes and bounds. D1 alone shall bear the costs of the plaintiffs and other defendants.
10. The plaintiffs aggrieved by the granting of decree only partly carried the matter by way of appeal, AS No. 9 of 1993 on the file of the Court of Second Additional District Judge, Mahbubnagar and the appellate Court at Para No. 10 framed the following points for determination:
(1) Whether the alienation made by D1 in favour of D2 to D7 are for legal necessity and for family benefit and are valid and binding on the plaintiffs ?
(2) Whether the plaintiffs are not entitled for partition without seeking to set aside the sale transactions in favour of D2 to D7?
(3) Whether the suit is bad for partial partition ?
(4) Whether the suit is bad for nonjoinder of necessary parties ?
(5) Whether the first plaintiff is entitled for partition and separate possession of his share in all the plaint 'A' and 'B' properties ?
(6) Whether plaintiffs 2 and 3 are entitled for partition and separate possession of their one-third share each in the half share of the first defendant?
11. The appellate Court recorded reasons in detail commencing from Paragraph Nos. 11 to 27 and while confirming the judgment and decree, dismissed the claim of the plaintiffs 2 and 3, allowed the appeal modifying the decree of the Court of first instance so far as first plaintiff is concerned, allotting half share to the plaintiffs and allotting half share to the defendants. Aggrieved by the same, the respondents in AS No. 9 of 1993 contesting defendants-alienees preferred the present second appeal.
12. It is pertinent to note that in the points for determination the appellate Court framed the under noted point for determination too.
Whether the suit is bad for partial partition ?
13. The appellate Court at Paragraph No. 13 observed as hereunder:
As can be seen from the documentary evidence placed before the Court all the alienations were made by the first defendant in favour of the other defendants during the years 1982 to 1984. In view of the admitted facts, it is to be seen whether the alienations made by defendant No. 1 in favour of the other defendants are for legal necessity. In almost all the documents executed by the first defendant, the purpose of alienation is mentioned only as family necessity. What is the nature of the family necessity and for what purpose the alienation is being made is not specifically referred to in any one of the sale deeds? In almost all the sale deeds the consideration was not passed before the Sub-Registrar and it was said to have been paid sometime prior to the execution of sale deeds. With regard to passing of consideration except the self-serving statements of defendants 2, 4 and the father of defendant No. 6, one of the two attestors of some of the sale deeds, there is no other evidence. In any one of the documents, the first defendant did not mention that he was executing the documents on behalf of minor son also or as the kartha of the joint family. In Ex.B5 the extract of registered sale deed dated 19.2.1987 executed in favour of one Mandadi Venkataiah and his elder brother the first defendant mentioned that he was selling the land for his personal necessity. The documents also does not referred to the fact that the lands under alienation are ancestral and joint family properties. What is the personal necessity of the first defendant to alienate the joint family property under Ex.B5 is also not referred to in the sale deed. Thus, all the sale deeds executed by defendant No. 1 in favour of defendants 2 to 7 by their face value does not disclose that the defendant No. 1 alienated the joint family properties for the benefit of the joint family and for the interest of the minor coparcener or for the benefit of the joint family or for purposes finding on the joint family estate.
14. The appellate Court also in relation Ex.B7 observed:
The defendants further filed Ex.B7 copy of the plaint to show that he filed a suit for partition in the year 1988 and for the litigation expenses in the civil Court to alienate the land. When the suit itself is filed in the year 1988, it cannot be presumed that in the year 1984 for the future litigation defendant No. 1 sold the land even in the year 1983 or 1984.
15. Certain findings had been recorded even in relation to Ex.B8 by the appellate Court. It is pertinent to note that Ex.B7 would assume some importance in the light of the specific plea taken in the written statement that certain other properties are also available to the joint family and they were not shown in the schedule in the suit for partition. It is no doubt true that two survey numbers had been mentioned but however, these are alienees and they had produced Ex.B7 before Court and it is for the member of the said family to explain whether such properties are available with the joint family or not. The appellate Court in fact in Paragraph No. 18 recorded certain findings in relation to Ex.B6 the gift deed. The Counsel representing the contesting respondents placed strong reliance on the findings recorded by the appellate Court at Paragraph Nos. 19 and 21 and the said findings are as hereunder:
Under Hindu Law when some joint family properties are alienated by the kartha of the joint family and when there are minor coparceners it is incumbent on the purchaser of the property to verify the bona fide need or necessity of the manager of the joint family to alienate the joint family properties and the alienations are for the benefit of the minors and for purposes binding on the joint family estate. None of the defendants have made any enquiry about the alleged debts of the first defendant. Simply because it is mentioned in the sale deeds that the alienations are being made for family necessity when the purchasers failed to make any bona fide enquiry about the necessity of the vendor no inference can be drawn that the alienations are made by the first defendant as the kartha of the joint family for joint family necessity and for the welfare of the minor coparcener and for purposes binding on the estate.
Thus, from the above discussion, it is very clear that out of the suit lands the first defendant sold away a major portion of the lands to an extent of about 12 to 13 acres within a short span of 1 1/2 to 2 years that under any one of the documents there is no proof of passing of valid consideration before the Sub-Registrar that there are discrepancies in the evidence with regard to the time of passing of consideration and execution of documents and their registrations that with regard to some of the documents not even a single attestor is examined to speak to the passing of valid consideration that there is no satisfactory evidence as to the legal necessity of the first defendant to alienate huge extents of lands for the purposes mentioned in the written statement that except vague averments of family necessity none of the documents contain a reference to the legal necessity for which the alienations are being made and there is also no proof that the purchasers ever made an enquiry about the legal necessity for disposing off the ancestral joint family lands by the first defendant to the benefit of the minor coparceners. It is also evident that the civil litigation with regard to the partition of the lands covered by Ex.B7 for which some portion of the land was said to have been sold is nearly four years after the alienation, that there is no proof that the first defendant was indebted to the state and the ceiling proceedings were continuing right from the year 1975 till the time of alienations and some litigation went on in that connection. Further there is no proof that PW.1 ever suffered with any sickness for which the first defendant was forced to alienate some lands, at any rate, the defendants have failed to discharge the burden which lies on them to show that the alienation of the joint family properties were made by the first defendant for legal necessity, for the benefit of the family and for purposes binding on the joint family estate. Therefore, the alienations made by defendant No. 1 in favour of defendants 2 to 9 does not bind the share of the minor coparcener, who is the first plaintiff, and they are not enforceable against him.
16. On a careful perusal of Ex.B7 and the schedule several properties are shown in the plaint schedule under Ex.B7 in OS No. 67 of 1988 on the file of the Court of Subordinate Judge, Mahbubnagar. No clear evidence is forthcoming before the Court relating to these properties inclusive of survey numbers, which had been specifically pleaded in the written statement. However, certain submissions were made that though the daughters as such had not been seriously agitating the litigation. It is contended by Sri Prathap Reddy that in the light of the subsequent change of law as the lis is pending, they being independent coparceners they are also entitled to the respective shares in the family properties. In Darshan Singh v. Rampal Singh and Anr. (supra), the Apex Court observed at Paragraph No. 48 as hereunder:
We are of the view that the right to appeal involved in the above case has to be distinguished from the right to contest involved in this case. While the right to appeal implies the continuation of the right sought to be effectuated in the appeal, in the instant case the power to contest itself constituted the custom, which the Legislature wanted to do away with. To take away the power to contest means nothing else than doing away with the custom itself. The right to contest wherever needed, namely, at any stage of a suit is expressly barred.
17. In Damalanka Gangaraju and Ors. v. Nandipati Vijayalaksymi and Ors. : 2007(4)ALD694 , the learned Judge of this Court while dealing with Section 29-A of the Hindu Succession Act 1956 as applicable to the State of Andhra Pradesh and Section 6 as amended by Act 39 of 2005 w.e.f. 9.9.2005 in relation to coparcenary properties and rights of daughters, observed at Paragraph Nos. 35 to 42 as hereunder:
The Parliament obviously after taking cognizance of the amendments made by States of Andhra Pradesh besides Tamil Nadu, Karnataka and Maharashtra, amended Section 6 of the Hindu Succession Act in tune with Section 29-A barring some exceptions by way of Amendment Act 39 of 2005 to the Hindu Succession (Amendment) Act, 1956, which came into force with effect from 9.9.2005. In the Statement of Objects and Reasons it was mentioned:
The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession among Hindus. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown relating to women's property. However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies inter alia, to persons governed by the Mitakshara and Dayabhaga Schools and also to those governed previously by the Murumakkayyam, Aliyasantana and Nambudri Laws. The Act applies to every person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.
Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognizes the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara Coparcenary property without including the female in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. Having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara Coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.
It is proposed to remove the discrimination as contained in Section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara Coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.
The above proposals are based on the recommendations of the Law Commission of India which is contained in its 174th report on 'Property Rights of women proposed reform under the Hindu Law.
The bill seeks to achieve the above objects
Obviously, the Central Act 39 of 2005 was introduced in order to bring out uniformity through-out the country. The stipulation that the marriage of the daughter should not have been performed before 5.9.1985 was removed. Therefore, irrespective of the dates of marriage, all the daughters would be deemed to be coparceners with one exception that partition should not have taken place before 20.12.2004. The expression 'partition' herein means that partition under a duly registered partition deed or partition effected by a decree of Court. While bringing out amendment, the Union Government has dropped the condition as to the date of marriage. Obviously the condition that partition should have taken place as evidenced above was kept in tact as the rule that amendment made affecting the rights of parties already accrued in favour of others shall not disturb so vested. Now, then the daughter is declared as a coparcener, she will naturally takes a share in the family along with the other coparceners. No doubt, while amending Section 6, the enactments made by the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra were not repealed. In other words, the Central Amending Act did not repeal Section 29-A of the State Amendment.
The learned Counsel for the appellant contended that Section 29-A of A.P. Amendment starts with a non-obstante clause which commences with the words:
Notwithstanding anything contained in Section 6 of this Act....By virtue of this non-obstante clause, even though Section 6 is amended, Section 29-A remains in the Statute at least in the State of Andhra Pradesh. It did not say that Section 6 will apply irrespective of any local law. Therefore, by virtue of Section 29-A, amended Section 6 of the Act stands excluded. Though, Parliament noticed these local amendments in all the four States, this aspect seems to have unnoticed. However, it does not sustain in the teeth of Article 254 of the Constitution of India. Article 254 of the Constitution reads as follows:
254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States:-(1) If any provision of law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State;
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
Whenever a statute comes up for consideration, the Judge has to necessarily find out the intention of Parliament when he finds ambiguity. I recall a passage from the book entitled. The Discipline of Law by Lord Denning (Butterworths) at Page 12:
Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Act of Parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the Legislature....The Supreme Court in Sai Reddy v. Narayana Reddy : (1991)3SCC647 , referring to the amendment held:
It is obvious that under the aforesaid provision, the difference between daughter and son of the Mitakshara Hindu family is removed and the daughter is conferred rights in the joint family property by birth in the same manner and to the same extent as the son. She is, therefore, now entitled to claim partition and her share in the family property. The amending provision is a beneficial legislation, which, among other filings, is also directed towards eradicating social evils such as dowry and dowry deaths. It also achieves the constitutional mandate of equality between sexes.The Parliament has unfettered power of legislating the law in question. It may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the 'same matter'. The Parliament while passing the amendment, had evidently ignored the State Amendments. In introducing Act 39 of 2005 it intends to correct the anomaly created between male and female children. It intends to set right the law. In the process, while taking cognizance of those enactments made by different States, it further bestowed some more rights. The embargo created in State Acts like the daughters marriages to be performed after a particular date etc., were lifted undoubtedly it is an improvement over the State Acts.
The Supreme Court in T. Barai v. Henry Ah Hoe and Anr. : 1983CriLJ164 , considered the question as to what would happen if there is conflict between Union and a State Law in the Concurrent List.
There is no doubt or difficulty as to the law applicable. Article 254 of the Constitution makes provision firstly, as to what would happen in the case of conflict between a Central and State Law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict. Article 254 enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is 'repugnant' to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in Clause (1), Clause (2) engrafts an exception, viz., that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in their applicability to that State only. The predominance of the State law may however be taken away if Parliament legislates under the proviso to Clause (2). The proviso to Article 254(2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the President's assent. Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the 'same matter'. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together, e.g., where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law under Article 254. That being so, when Parliament stepped in and enacted the Central Amendment Act, it being a later law made by Parliament 'with respect to the same matter', the West Bengal Amendment Act stood impliedly repealed.
Even earlier the Supreme Court in Karunanidhi v. Union of India : 1979CriLJ773 , held that by Clause (2) of Article 246, concurrent power is conferred upon both the Union and State Legislatures to legislate with respect to the subjects included in List-Ill. Hence if both the Parliament and a State Legislature make laws relating to the same concurrent subject, a question of conflict arises between the two enactments. The conflict is solved by Article 254 by providing that in such a case the State Law shall be void to the extent it is repugnant to or inconsistent with the Central Act.
Undoubtedly the Central enactment prevails over the State Act and the latter is deemed to have repealed. In case of overlappings of a matter as between them, predominance has to be given to the Union legislation.
18. In Parchuri Sambasiva Rao and Ors. v. Parchuri Srinivasa Rao and Ors. : 2007(4)ALD801 , this Court observed at Paragraph Nos. 27 to 31 as hereunder:
It is true that in a case of this nature when the parties already are on record, no doubt in a different capacity as legal representatives, the question would be whether such parties to be permitted to take the additional plea, substantially a legal plea relating to the applicability of Section 6 of the Act as substituted by Amending Act 39 of 2005 or such permission not to be granted on the ground that they being only legal representatives, they cannot be permitted to put forth such plea though it is a subsequent event since such plea was not available to the 3rd defendant at the relevant point of time. It is needless to say that Section 6 of the Act was substituted by the Amending Act 39 of 2005, which is a subsequent event, and the 3rd defendant had no occasion or opportunity of taking such a plea, for the reason that the Amending Legislation was not in existence as on the said date. Hence, if the parties are deprived to put forth such legal plea, based on the subsequent Amending Legislation, it would cause serious prejudice to such parties, and if such plea is permitted, there cannot be any doubt or controversy that the preliminary decree to be modified and the shares are to be changed accordingly. When such serious impact is there on the rights of the parties to be worked out, on the just ground that they are on record in the capacity of legal representatives and not as original parties to deprive such parties in putting forth such plea, in the considered opinion of this Court, would not be just and proper. Hence, in the light of the averments made in the affidavit filed in support of the application in ASMP No. 394 of 2007, the said application is hereby ordered and the additional written statement filed by 6th appellant is hereby received. The said legal representatives to be taken as having been brought on record not only as legal representatives of deceased, 3rd defendant, but also as parties to the suit in their independent capacity as well as in the light of the language of Order 1 Rule 10(2) of the Code of Civil Procedure 'The Court may at any stage of the proceedings either upon or without the application of either party'.
The next question to be decided is in the light of the language employed in Section 6 of the Act, as substituted by the Amending Act 39 of 2005, whether adducing of any further evidence would be necessary or inasmuch as this is a pure question of law, the changed shares to be decided and a preliminary decree to be passed accordingly by this Court without making any further order of remand.
The learned Counsel representing the appellants had placed strong reliance on the decision reported in S. Sai Reddy v. S. Narayana Reddy and Ors. (supra), wherein the Apex Court while dealing with Section 29-A of the Hindu Succession (A.P. Amendment) Act, 1986 held as hereunder:
A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the Court. When a suit for partition is filed in a Court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events and the preliminary decree does not bring about any irreversible situation. The concept of partition that the Legislature has in mind cannot be equated with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the Legislature has in mind is a partition completed in all respects and which has brought about an irreversible situation. Unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Since the legislation is beneficial and placed on the statute book with the avowed object of benefiting women who are a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it.
Since in the present case the final decree had not been passed and the property had not been divided by metes and bounds, Clause (iv) to Section 29-A was not attracted and the respondent-daughters were entitled to their share in the family property.
Thus, the decision in S. Narayana Reddy v. S. Sai Reddy 0044/1990 : AIR1990AP263 , was affirmed by the Apex Court.
Further strong reliance was placed on the decision of the Division Bench of Madras High Court in M. Shanmugha Udayar v. Sivanandam and Ors. : AIR1994Mad123 , whereunder the Division Bench while dealing with Section 29-A of the Hindu Succession Act, as amended by Tamil Nadu Amending Act, 1990 observed at Paragraph 34 as hereunder:
The next question we have to address ourselves is the share to which the 10th defendant is entitled. Section 29(A) of the Hindu Succession Act introduced by T.N. Amending Act 1 of 1990 reads as follows:
Notwithstanding anything contained in Section 6 of this Act,
(i) in a Joint Hindu Family governed by Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have if she had been a son, inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son.
(ii) At a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allottable to a son provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted in the surviving child of such predeceased son or of such predeceased daughter.
Provided further the share allottable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of the predeceased daughter, as the case may be;
(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of Clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;
(iv) nothing in this chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989;
(v) nothing in Clause (ii) shall apply to a partition which had been effected before the date of commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989. On the strength of this newly introduced provision of law, learned Counsel for the appellant argued that the 10th defendant his daughter has become a coparcener in her own right in the same manner as his sons and she has the same right in the joint family properties. Hence she also has to be allotted a share along with plaintiffs and defendants 2 to 7. The objections on behalf of the respondents are that the said daughter of the 9th defendant has not preferred any appeal and in any event this plea has not been taken by the appellant in his appeal memorandum. Since the plea of the daughter to come on record as the 10th defendant has been negatived by the trial Court holding that she is not a necessary party to the suit, evidently she could not have preferred any appeal. Now we have permitted her to come on record. So there cannot be any objection for the 10th defendant to raise this plea in this appeal. Further as a Division Bench of Calcutta High Court has laid down in Nuri Mian v. Ambica Singh AIR 1919 Cal. 716, when a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interest of justice, to entertain the plea. Ordinarily the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But this principle is not of universal application. Where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary, to base the decision of the Court on the later circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. And the Apex Court has laid down in Phool Chand v. Gopal Lal : [1967]3SCR153 , that so far as partition suits are concerned, if an event happens after the preliminary decree and before a final decree is passed, and a change in the shares is necessitated, the trial Court can and should pass a second preliminary decree correcting the shares; and, if there is a dispute in that behalf the order of the Court deciding that dispute and making a variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. A partition suit is not finally disposed of till the final decree is passed and the Court has jurisdiction to decide all disputes, that may arise due to the death of some of the parties after the preliminary decree and before the passing of the final decree. There is nothing in the Civil Procedure Code which prohibits the passing of more than one preliminary decree in a partition suit, if circumstances justify it and if it is convenient and advantageous to do so. So there cannot be any impediment in passing another preliminary decree correcting the shares in case we find the 10th defendant also has to be allotted a share in the division of family assets.
31. Submissions at length were made relating to the applicability or otherwise of the amending Act, Act 39 of 2005, and Section 6 of the Act as substituted by the said amending Act. It is true that certain conditions are to be satisfied for applicability of the said amended provision. However, on a careful analysis of the facts of the case, the applicability of the provisions of Section 6 of the Act referred to supra, appears to be very near to declare the modified shares in the light of the said provision. Inasmuch as on the strength of a subsequent amending legislation, a new plea is being put forth by putting an additional plea before this Court which had been received and also taking into consideration that by virtue of these changed shares, the shares of plaintiffs would be substantially changed or reduced, this Court is of the considered opinion that the following additional issue to be framed and parties to be given an opportunity to adduce evidence in relation thereto and record appropriate findings:
Whether the parties would be entitled to the altered or changed shares which would be different from the preliminary decree already granted by the Court of first instance in the facts and circumstances, in the light of Section 6 of Hindu Succession Act, 1956, as substituted by the amending Act, Act 39 of 2005?
19. Sri Mahipati Rao, the learned Counsel representing the appellants advanced certain submissions that apart from the plea of want of legal necessities further proof relating to the immorality or avyavaharika nature of debts deposed have to be established. In the light of the nature of the findings, which had been recorded by the Court of first instance and also the appellate Court and in the light of the modification made by the appellate Court and in view of the fact that specific plea relating to non-inclusion of certain properties of the joint family had been specifically pleaded in the written statement and Ex.B7 also was put forward since the non-inclusion of all the properties of the joint family would definitely affect the rights of alienees and working out equities even at the stage of final decree proceedings. This Court is of the considered opinion that a suit for partial partition as such cannot be maintained. This Court is not inclined to express any further opinion relating to the other contentions, which had been advanced before this Court in relation to Section 29-A of the Hindu Succession Act, 1956 as amended by the State of Andhra Pradesh and also Section 6 of the Hindu Succession Act (as amended by Act 39/2005). In a suit of this nature, it is but natural that the first defendant would be behind the litigation and had not chosen to contest the litigation at all and while appreciating the evidence available on record, the Courts are expected to be careful and cautious since the substantial rights of the alienees would be involved especially when such alienations are challenged on such grounds. In view of the same, the decrees and judgments made by both the Court of first instance and also the appellate Court are hereby set aside and the matter is remanded to the Court of first instance to give opportunity to both the parties to further amend the pleadings in the light of the views expressed by this Court and also permit the parties to let-in further evidence relating to additional items if any and record appropriate findings in this regard.
20. At this stage, Sri Prathap Reddy, the learned Counsel representing the contesting respondents would submit that the matter is pending for sufficiently long time and hence early disposal of the suit would be essential. It is made clear that the learned Judge to give top priority to this matter and decide the matter on merits and in accordance with law, within a period of six months from the date of receipt of a copy of this judgment.
21. Accordingly the second appeal is allowed to the extent indicated above. The parties to the litigation do bear their own costs.