SHRI. SHIVANAND S/O VEERUPAXAPPA MURKIBHAVI vs SHRI. SADANAND S/O MADIWALAPPA UPPIN

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R


IN THE HIGH COURT OF KARNATAKA AT DHARWAD



TH
DATED THIS THE 8 DAY OF JUNE, 2026

BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

WRIT PETITION NO.101094 OF 2024 (GM-CPC)



BETWEEN:

1. SHRI. SHIVANAND S/O VEERUPAXAPPA
MURKIBHAVI,
SINCE DECEASED BY HIS LR’S.,

1A. SHRI HARSHA S/O SHIVANAND MURKIBHAVI,
AGE. 46 YEARS, OCC. BUSINESS,
R/O./ CCB 229, SUBHASH NAGAR,
MALMARUTI EXTENSION, BELAGAVI.

1B. KUMARI. SPURTI S/O SANTOSH MURKIBHAVI,
AGE. 14 YEARS, OCC. STUDENT,
SINCE MINOR REP. BY HER NATURAL
MOTHER AND GUARDIAN SMT. SUJATA
W/O ARJUN KHANAPURI,
AGE. 41 YEARS, OCC. SERVICE,
R/O. C/O. RAOSAHEB SANGAPPA BADAGE,
ND
PLOT NO.76 AND 77, 2 CROSS,
SHAHU NAGAR, BELAGAVI.
… PETITIONERS
(BY SRI. A.B. NESARGI, ADVOCATE)

AND:

1. SHRI. SADANAND S/O MADIWALAPPA UPPIN,
AGE. 68 YEARS, OCC. BUSINESS,
R/O. CTS NO.3872, KACHERI ROAD,
BELAGAVI-590001.
(PETITIONER IN FDP NO.3/2021)













Digitally signed
by
MOHANKUMAR
B SHELAR
Location: HIGH
COURT OF
KARNATAKA

MOHANKUMAR
B SHELAR

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2. SHRI SHRIKANT S/O MADIWALAPPA UPPIN,
AGE. 75 YEARS, OCC. PENSIONER,
R/O. CTS NO.3872, KACHERI ROAD,
BELAGAVI-590001.
(RESPONDENT NO. 1 IN FDP NO.3/2021)

3. SMT. LATA W/O VISHWANATH UPPIN,
AGE. 62 YEARS, OCC. HOUSEHOLD WORK,
R/O. CTS NO.3872, KACHERI ROAD,
BELAGAVI-590001.
(RESPONDENT NO. 2 IN FDP NO.3/2021)

4. SHRI SATISH S/O VISHWANATH UPPIN,
AGE. 42 YEARS, OCC. BUSINESS,
R/O. CTS NO.3872, KACHERI ROAD,
BELAGAVI-590001.
(RESPONDENT NO.3 IN FDP NO.3/2021)

5. SHRI SHRISH S/O VISHWANATH UPPIN,
AGE. 38 YEARS, OCC. BUSINESS,
R/O. CTS NO.3872, KACHERI ROAD,
BELAGAVI-590001.
(RESPONDENT NO.4 IN FDP NO.3/2021)

6. SHRI RATNAKAR S/O MADIWALAPPA UPPIN,
AGE. 70 YEARS, OCC. PENSIONER,
R/O. CTS NO.3872, KACHERI ROAD,
BELAGAVI-590001.
(RESPONDENT NO.5 IN FDP NO.3/2021)

7. MISS. UJWALA D/O MUKUND KHEDARKAR,
AGE. 58 YEARS, OCC. HOUSEHOLD WORK,
R/O. SOMAWARPETH, TASAGAON,
SANGLI DISTRICT, MAHARASHTRA STATE.
(RESPONDENT NO.6 IN FDP NO.3/2021)

8. MISS. SAVITA S/O MUKUND KHEDARKAR,
AGE. 56 YEARS, OCC. HOUSEHOLD WORK,
R/O. SOMAWARPETH, TASAGAON,
SANGLI DISTRICT, MAHARASHTRA STATE.
(RESPONDENT NO.7 IN FDP NO.3/2021)

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9. SMT. USHA W/O GURUNATH UJJANNAVAR,
AGE. 53 YEARS, OCC. HOUSEHOLD WORK,
R/O. FLAT NO.102, MANGOLIA-3,
NEAR PIPE LINE ROAD, MARUTI,
LAXMI TEKADI, BELAGAVI-590009.
(RESPONDENT NO.8 IN FDP NO.3/2021)

10. MISS. BHARATI D/O MUKUND KHEDARKAR,
AGE. 49 YEARS, OCC. HOUSEHOLD WORK,
R/O. SOMAWARPETH, TASAGAON,
SANGLI DISTRICT, MAHARASHTRA STATE.
(RESPONDENT NO.9 IN FDP NO.3/2021)

11. SMT. SHIVALEELA @ SNEHA
W/O SANJAY KHANNA,
AGE. 46 YEARS, OCC. HOUSEHOLD WORK,
R/O. FLAT NO.101, CTS NO.6851,
KOLIVERY VILLAGE ROAD,
OSIA-SAGAR-CO-OP. HOUSING SOCIETY LTD.,
BEHIND CENTRAL PLAZA HALL COLINA,
SANTA CRUZ (EAST) MUMBAI-98,
MAHARASHTRA STATE.
(RESPONDENT NO.10 IN FDP NO.3/2021)

12. SHRI. HARSHA S/O SHIVANAND MURKIBHAVI,
AGE. 76 YEARS, OCC. BUSINESS,
R/O.CCB 229 SUBHASH NAGAR,
MALMARURI EXTENSION, BELAGAVI-590016.
(RESPONDENT NO.12 IN FDP NO.3/2021)

13. SHRI ASHOK S/O ADIVEPPA UPPIN
AGE. 73 YEARS, OCC. BUSINESS,
R/O.CTS NO.3871, KAKATIVES, BELAGAVI
(RESPONDENT NO.13 IN FDP NO.3/2021)




14.
SMT. SAROJINI W/O MALLAPPA HOSUR,
SINCE DECEASED BY HER LEGAL HEIRS,

SMT. RAJESHWARI
W/O PRADEEP SHIRAGANNAVAR,

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AGE. 48 YEARS, OCC. HOUSEHOLD WORK,
R/O.KANKANWADI, TQ. JAMKHANDI,
DIST. BAGALKOT.
(RESPONDENT NO.14(A) IN FDP NO.3/2021)

15. SHRI CHANNAPPA S/O MALLAPPA HOSUR,
AGE. 45 YEARS, OCC. AGRICULTURE,
R/O. KANKANWADI, TQ. JAMKHANDI,
DIST. BAGALKOT.
(RESPONDENT NO.14(B) IN FDP NO.3/2021)

16. KUMARI SPRUTI D/O SANTOSH MURKIBHAVI,
AGE. 14 YEARS (MINOR), OCC. STUDENT,
SINCE MINOR REP. BY HER NATURAL
MOTHER/GUARDIAN
SMT. SUJATA W/O ARJUN KHANAPURI,
AGE. 41 YEARS, OCC. SERVICE,
R/O. C/O. RAOSAHEB SANGAPPA BADAGE
ND
PLOT NO.76 AND 77, 2 CROSS,
SHAHU NAGAR, DIST. BELAGAVI.
(RESPONDENT NO.15 IN FDP NO.3/2021)
… RESPONDENTS

(BY SRI. MAQBOOLAHMED M. PATIL, ADVOCATE FOR R1;
SRI. K. ANANDKUMAR, ADVOCATE FOR R13 TO R15;
NOTICE TO R2 TO R12 AND R16 ARE SERVED)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT
OR ORDER OR ANY DIRECTION TO QUASH THE ORDER DATED
15-12-2023 UNDER ANNEXURE-G PASSED ON I.A. NO.VIII BY
THE LEARNED I ADDITIONAL SENIOR CIVIL JUDGE AND CJM,
BELAGAVI IN FDP NO.3/2021 IN THE INTEREST OF JUSTICE
AND EQUITY.

THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)

The present petitioner, who was defendant No.11 in a
O.S.No.131/1992, is aggrieved by the order passed by the FDP
Court, declining to re-determine the share in terms of amended
Section 6 of the Hindu Succession Act, 2005 and grant equal
share to his late wife i.e., defendant No.5.

2. The learned Judge, by the order impugned, has
rejected the application filed by the petitioner on the premise
that the preliminary decree passed in O.S. No.131/1992 stood
modified by this Court in RFA No.372/2000 c/w RFA
No.424/2000, wherein the present petitioner was allotted
1/30th share in the suit schedule properties. The learned Judge
has further held that the said judgment and preliminary decree
having attained finality, the Final Decree Court cannot
undertake any exercise to alter or modify the shares already
determined by the Appellate Court.

3. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondents. Perused the material placed on record as well as
the order impugned.

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4. In the light of the rival submissions and having
regard to the undisputed fact that the preliminary decree, as
modified by this Court in RFA No.372/2000 c/w RFA
No.424/2000, has attained finality, the short question that falls
for consideration is:
“Whether a Court conducting final decree
proceedings has the jurisdiction to re-determine
or vary the shares of the parties in a manner
contrary to the shares declared and crystallized
under the preliminary decree as modified by the
Appellate Court?”


5. The learned Judge, while rejecting the application,
has proceeded on the premise that the shares declared under
the preliminary decree, as modified by this Court in RFA
No.372/2000 C/w RFA No.424/2000, have attained finality and,
therefore, the Final Decree Court lacks jurisdiction to revisit the
issue of shares. The said view, however, is no longer
res integra in view of the authoritative pronouncements of the
Hon’ble Apex Court.

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6. The Hon’ble Supreme Court, in Prasanta Kumar
Sahoo and Others v. Charulata Sahu and Others, reported
in (2023) 9 SCC 641 , while considering the scope and effect
of the judgment rendered by the Constitution Bench in Vineeta
Sharma v. Rakesh Sharma , reported in (2020) 9 SCC 1 ,
has categorically held that a partition suit cannot be regarded
as having attained finality merely upon the passing of a
preliminary decree. The Hon’ble Apex court held that so long as
the final decree proceedings remain pending and actual
partition by metes and bounds has not taken place, the Court
conducting final decree proceedings retains jurisdiction to take
note of subsequent events, changes in law and supervening
circumstances having a bearing on the rights of the parties. It
is further held that if, during the interregnum between the
passing of a preliminary decree and the final decree, a
legislative amendment comes into force or a subsequent event
occurs affecting the entitlement of the parties, the Final Decree
Court is competent to re-determine the shares notwithstanding
the shares declared under the preliminary decree.

7. The Constitution Bench in Vineeta Sharma ’s case
(supra) has unequivocally declared that the right conferred

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upon a daughter under Section 6 of the Hindu Succession Act,
as amended by Act 39 of 2005, is not a newly created right but
a recognition of a pre-existing right. A daughter, by virtue of
her birth, acquires the status of a coparcener in the same
manner as a son. The amendment merely removes the
discrimination that existed under the unamended law and
places daughters on an equal footing with sons in matters
relating to coparcenary property. The right to claim a share in
ancestral coparcenary property is thus a right by birth and a
vested pre-existing right, and not a right flowing from the
amendment itself. The amendment only recognizes and
enforces such right and confers upon daughters the same
incidents of coparcenary ownership as enjoyed by male
coparceners.

8. In the present case, it is not in dispute that the final
decree proceedings are still pending and that partition by metes
and bounds has not yet taken place. The petitioner, claiming
through his deceased wife, has sought re-determination of
shares by asserting the statutory entitlement flowing from
Section 6 of the Hindu Succession Act, 1956, as amended in

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the year 2005, and as interpreted by the Constitution Bench in
Vineeta Sharma ’s case ( supra ).

9. The law laid down in Prasanta Kumar Sahoo ’s
case (supra) makes it abundantly clear that the jurisdiction of
the Final Decree Court is not confined to a mechanical division
of properties in terms of the preliminary decree. On the
contrary, where the rights of parties undergo a change by
reason of a statutory amendment or by virtue of a subsequent
authoritative pronouncement of law, the Final Decree Court is
obligated to re-work the equities and re-determine the shares
so as to ensure that the final decree reflects the correct legal
position. Therefore, the reasoning assigned by the Court below
that it lacks jurisdiction to revisit the shares declared under the
preliminary decree runs directly contrary to the law declared by
the Hon’ble Apex Court.

10. The law governing partition suits has consistently
recognized that rights in joint family properties remain
susceptible to variation on account of supervening events
occurring after the passing of the preliminary decree but before
the final decree is drawn. If one of the coparceners or co-

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sharers dies during the pendency of final decree proceedings,
the devolution of his or her interest by succession would
necessarily alter the shares of the remaining parties. Likewise,
if a statutory amendment confers or recognizes additional
rights in favour of a class of persons, or if there is a subsequent
authoritative pronouncement declaring the true legal position,
the Court cannot shut its eyes to such developments merely
because a preliminary decree has earlier quantified the shares.
To hold otherwise would result in a final decree that is contrary
to the substantive rights of the parties as recognized by law on
the date of actual partition.

11. It is trite law that under the Mitakshara School of
Hindu Law, a coparcener acquires an interest in the ancestral
coparcenary property by birth. The right in coparcenary
property is neither created by succession nor conferred by any
decree of Court. It is an incident of birth and constitutes a pre-
existing proprietary right. The amendment introduced to
Section 6 of the Hindu Succession Act, 1956 by Act 39 of 2005
did not create a new right in favour of daughters; rather, it
recognized and affirmed the pre-existing right flowing from the
concept of coparcenary and placed daughters on the same

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footing as sons. Therefore, the entitlement of a daughter to
claim a share in coparcenary property is not traceable to the
amendment alone but is founded on the doctrine that
coparcenary rights are acquired by birth.

12. The distinction between a preliminary decree and a
final decree assumes considerable significance in partition
actions. A partition suit cannot be regarded as having attained
complete and irrevocable finality merely because a preliminary
decree has become conclusive inter se the parties. The
proceedings attain true finality only when the joint status is
worked out through an actual partition by metes and bounds, a
final decree is drawn, and the decree itself attains finality. Until
such stage is reached, the lis remains alive and the Court
retains jurisdiction over the matter for the purpose of
effectuating the lawful rights of all parties.

13. This Court is also conscious of the settled principle
that a preliminary decree passed in a partition suit is not devoid
of finality. If the preliminary decree determining the shares of
the parties is accepted and remains unchallenged, or if the
challenge mounted against it is repelled by the Appellate Forum

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and the decree attains conclusiveness, the shares declared
therein ordinarily bind the parties and cannot be reopened as a
matter of course in final decree proceedings. The Final Decree
Court is not vested with appellate powers to sit in judgment
over the correctness of a preliminary decree that has attained
finality. Therefore, in the absence of any supervening
circumstance affecting the rights of the parties, the Court
conducting final decree proceedings is bound to give effect to
the shares declared under the preliminary decree and proceed
with partition by metes and bounds.

14. However, the principle of finality attached to a
preliminary decree is subject to well-recognized exceptions.
Where, subsequent to the passing of the preliminary decree
and before the drawing up of the final decree, there occurs
either (i) a supervening event such as the death of a
coparcener or co-sharer resulting in devolution of interest and
consequent alteration of shares, or (ii) a change in law brought
about by legislative intervention or an authoritative
pronouncement of the Hon’ble Apex Court affecting the
substantive rights of the parties, the Final Decree Court is not
only empowered but is duty-bound to take note of such

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developments and re-determine the shares so that the final
decree ultimately drawn reflects the true legal entitlement of
the parties. Save and except these recognized contingencies,
the quantification of shares made under a preliminary decree
which has attained finality remains binding on the parties and
cannot be reopened in final decree proceedings.

15. This Court is therefore of the considered view that
the impugned order suffers from a patent error of law. The
learned Judge has failed to appreciate that the rights of
daughters in coparcenary property stand elevated to that of
sons by virtue of Section 6 of the Hindu Succession Act, 1956,
as amended, and that such right is a birthright constituting a
pre-existing entitlement. The refusal to consider the petitioner’s
claim for re-determination of shares on the ground that the
preliminary decree has attained finality is therefore wholly
unsustainable and cannot be allowed to stand. Accordingly, the
point for consideration is answered in the “affirmative”.

16. For the reasons stated above, the writ petition
deserves to be allowed. Accordingly, this Court passes the
following:

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ORDER

(i) The writ petition is allowed .

(ii) The order dated 15.12.2023 passed on I.A.No.VIII
in FDP No.3/2021 by the learned I Additional
Senior Civil Judge and CJM, Belagavi, produced at
Annexure–G, is hereby set aside.

(iii) The matter is remitted to the Final Decree Court
for fresh consideration of I.A. No.VIII and for
re-determination of the shares of the parties in
accordance amended Section 6 of Hindu
Succession Act, 1956.

(iv) While undertaking the exercise of drawing the final
decree, the Final Decree Court shall take into
consideration the mandate contained in Section 6
of the Hindu Succession Act, 1956, as amended by
Act 39 of 2005, and the principles laid down by the
Hon’ble Supreme Court in Vineeta Sharma v.
Rakesh Sharma, reported in (2020) 9 SCC 1 ,
and Prasanta Kumar Sahoo and Others v.

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Charulata Sahu and Others, reported in (2023)
9 SCC 641.

(v) Final Decree Court shall treat all daughters who
are entitled under law as coparceners and shall re-
compute and re-determine the shares of all parties
by recognizing the daughter’s right in coparcenary
property as a right by birth and a pre-existing
coparcenary right, on par with that of a son.

(vi) Thereafter, the Final Decree Court shall proceed to
effect partition by metes and bounds and draw the
final decree expeditiously, preferably within an
outer limit of six months from the date of receipt
of a certified copy of this order.

(vii) All contentions of the parties, insofar as the actual
working out of shares and allotment of properties
are concerned, are left open to be urged before
the Final Decree Court.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
AM/-. CT:BCK

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