Supreme Court of India

Prasanta Kumar Sahoo vs Charulata Sahu . on 29 March, 2023

Author:
A.S. Bopanna

Bench:
A.S. Bopanna
REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2913-2915 OF 2018

PRASANTA KUMAR SAHOO & ORS. ….APPELLANT(S)

VERSUS

CHARULATA SAHU & ORS. ….RESPONDENT(S)

JUDGMENT

J. B. PARDIWALA, J.

1. Since the issues involved in both the captioned appeals are interrelated; the
parties are also same and the challenge is also to the self-same judgment and decree
passed by the High Court of Orissa, those were taken up for hearing analogously and
are being disposed of by this common judgment and order.

2. Both the captioned appeals are at the instance of the legal representatives and
heirs of the original defendant No. 1 (Late Shri Prafulla Sahoo S/o Kumar Sahoo) and
are directed against the judgment, order and decree passed by a Division Bench of the
High Court of Orissa at Cuttack dated 5.05.2011 in AHO No. 133 of 2000 by which the
Division Bench of the High Court dismissed the Letters Patent Appeal filed by the
appellants herein thereby affirming the judgment and decree of partition passed by the

Signature Not Verified

Digitally signed by

Manish Issrani

Trial Court in the Title Suit No. 348 of 1980 instituted by the original plaintiff

Date: 2023.03.29

15:55:18 IST

Reason:

(Respondent No. 1 herein) and on the other hand allowed the cross-objections filed by
the Original Defendant No. 2, thereby setting aside and declaring the compromise
recorded by the First Appellate Court entered into between the Late Prafulla Sahoo and
his sister i.e., the Defendant No. 2 in the suit to be invalid.

FACTUAL MATRIX

3. This litigation relates to the partition of ancestral properties of one Kumar Sahoo,
between the appellants who are the legal representatives and heirs of the Defendant No.
1 (Late Mr. Prafulla Sahoo S/o of Kumar Sahoo), the Respondent No. 1 herein i.e., the
Plaintiff (Mrs. Charulata Sahoo daughter of Kumar Sahoo) and the Respondent No. 2
who are the legal representatives and heirs of the Defendant No. 2 (Mrs. Santilata D/o
Kumar Sahoo)

4. For the sake of convenience, the relationship of the parties will appear from the
following genealogical table, drawn as under: -

Hadibandhu

Dhruba Kumar Ananta Rohita

Charulata Santilata (Dead) Prafulla (Dead)
(Plaintiff) (Defendant No.2) (Defendant No.1)
(Respondent No.1) (Respondent No.2) (Appellant)

5. It appears from the materials on record that sometime in 1940 upon partition
Late Shri Kumar Sahoo i.e., the father of the Plaintiff, Defendant No. 1 and Defendant
No. 2 resply as a co-parcener received the subject properties. In 1969, when Shri Kumar
Sahoo passed away, he was survived by the Plaintiff and Defendant Nos. 1 and 2 resply.

6. On 3.12.1980, the Respondent No. 1 (herein Original Plaintiff) filed a suit for
partition being the T.S. No. 348 of 1980, claiming 1/3rd share in the properties ‘A’ to
‘F’ as scheduled in the plaint.
7. The Respondent No. 1 (herein Original Plaintiff) prayed for the following reliefs
in the title suit No. 348 of 1980 referred to above:

“(i) Let a preliminary decree be passed for partition in respect of the plaintiff’s 1/3rd
share in schedule 'A' to 'F' and the plaintiff be put in specific possession of the same on
a separate allotment being curved out in final decree proceeding by appointment of
Civil Court Survey knowing commissioner and a decree for mesne profit be passed
against Defendant No. 1 from 1977 till the date of the suit and from the date of suit till
the decree is made final and the share of Defendant No. 1 in the suit properties be
charged for payment of the same.

(ii) Let the Defendant No. 1 be permanently restrained from interfering with the
plaintiff’s separate allotment in the final decree proceeding at any time in future.

(iii) Let a degree be passed for the costs of the suit against the Defendants.

(iv) Let a decree be passed for such other relief that the plaintiff is ultimately found
entitled in his favour against the Defendants.

DESCRIPTION OF THE PROPERTIES

SCHEDULE-A

1. Dist- Cuttack, S. R. Cuttack, Village- Chauliaganj, P.S. No. 213. P.S. Madhupatna
Khata No. 34, plot No. 1088 Area Ac. 0.465 dec. Khata No. 32, Plot No. 1088.

KhataNo. 33 Plot No. 1086 Ac. 142. dec.

Khata No. 260 Plot No. 1087 Ac. 0.502 dec.
Plot No. 818 Ac 0.266 dec.
Khata No. 264 Plot No. 1090 Ac 0.012 dec.
-------------------------
Ac 1.508 dec.
(A.V. Rs. 1,03,930/-)
SCHEDULE- 'B'
Mouza- Paisa (Hal - Gandarpur)
Khata No. 108 Plot No. 110 Ac. 0.48 dec.
Khata No. 106 Plot No. 97 Ac. 0.89 dec
Khata No. -do- Plot No. 98, Ac. 0.09 dec.
Plot No. 99 Ac. 0.14 dec
Plot No. 100 Ac. 0.37 dec.
Khata No. 107 Plot No. 95 Ac. 0. 17 dec.
Khata No. 184 Plot No. 101 Ac. 0.45 dec.
Khata No. 114 Plot No. 199 Ac. 0.21- ½ dec.
Khata No. 8 Plot No. 96 Ac. 0.10 dec.
-----------------------
Ac. 2.90-½ dec.
(.A.V. RS. 2850/-)
SCHEDULE -'C'

District- Cuttack. S.R. Cuttack, Mouza- Rajahans,
Khata No. 855, Plot No. 316. Ac. 0.18 dec
Khata No. 228 Plot No. 535 Ac. 0.08 dec.
Plot No. 539 Ac. 0.02 dec
Plot No. 548 Ac. 0.03 dec.
Plot No. 553 Ac. 0.41 dec.
___________
Ac. 0.72 dec.
(A.V. RS. 720/-)
SCHEDULE -'D'
Mouza- Safipur, P.S. Sadar, Cuttack,
.... A.V .... Rs.
SCHEDULE -'E'
Mouza- Dian Rajhans Khata No. 1 Plot No. 73 Ac. 0.13 dec.
Plot No. 76 Ac. 0.12 dec
-------------
Ac. 0.25 dec
Khata No. 2. Plot No. 85 Ac. 0.12 dec.
Plot No. 87 Ac. 0.14 dec
Plot No. 93 Ac. 0.18 dec.
Plot No. 70 Ac. 0.19 dec.
Plot No. 72 Ac. 0.29 dec.
Plot No. 104 Ac. 0. 19 dec.
-----------------
Ac. 1.10 dec
. . ... valued at Rs. 205/-
Khata No. 18 Plot No. 128 Ac. 0.50
Plot No. 135 Ac. 27.59 dec
Plot No. 179 Ac. 1.93 dec
Plot No. 180 Ac. 2.22 dec
Plot No. 181 Ac. 10.18 dec
Plot No. 127 Ac. 2.13 dec.
Plot No. 130 Ac. 1.23 dec.
Plot No. 101/186 Ac. 0.24 dec.
Plot No. 132 Ac. 0.35 dec.
Plot No. 132 Ac. 0.35 dec.
Plot No. l37 Ac. 0.20 dec.
Plot No. 136 Ac. 0.26 dec.
Plot No. 99/185 Ac. 0.42 dec.
No. 47.25 dec. valued at Rs. 450/-
Khata No. 19 Plot No. 75 Ac. 0.31 dec
Plot No. 64 Ac. 0.22 dec.
Plot No. 74 Ac. 0.30 dec.
Plot No. 79 Ac. 0.15 dec.
Plot No. 34 Ac. 0.15 dec.
Plot No. 38 Ac. 0.11 dec.
Plot No. 69 Ac. 0.23 dec.
Plot No. 68 Ac. 0.37 dec.
-----------------·
Ac. 1.74 dec.
Valuation Rs. 350/-
Khata No. 21 Plot No. 145 Ac. 0.68 dec.
Plot No. 71 Ac. 0.30dec
Plot No. 58 Ac. 0.22 dec.
Plot No. 182 Ac. 0.03 dec.
Plot No. 57 Ac. 0.21 dec.
Plot No. 194 Ac. 0.20 dec.
Plot No. 107 Ac. 0.11 dec.
Plot No. 139 Ac. 0.25 dec.
Plot No. 83 Ac. 0.06 dec.
----------------
Ac. 3.06 dec
Valuation Rs. 595/-

SCHEDULE -'F'

Mouza- Nagagajpur, P.S. Sadar, S.R. Cuttack, Dist- Cuttack.

Khata No. 61.

Plot No. 51 Ac. 0.080 dec.
Plot No. 54 Ac. 0.023dec.
Plot No. 57 Ac. 0.012 dec.
Plot No. 61 Ac. 0.035 dec.
Plot No. 62 Ac. 0.22dec.
Plot No. 91 Ac. 0.006 dec.
Plot No. 93 Ac. 0.007 dec.
Plot No. 108 Ac. 0.044 dec.
---------------------
Ac 1.89 decimals
. . . . . . . . . . Rs/ 1.890/-
Agricultural and other lands Ac. 60.79 dec.
...Valued at Rs. 1.20, 610/-
VERIFICATION.”

8. The Trial Court framed the following issues:
“(1) Is the suit maintainable in law?

(2) Are the plaintiff and Defendant No. 2 members of the family of Defendant
No. 1 in view of introduction of
Urban Land Ceiling & Regulation Act, 1976
,
and can the plaintiff maintain a suit for partition of the suit property?

(3) Is the suit property liable for partition among the parties?

(4) What are the respective shares of the plaintiff, Defendant No. 1 and
Defendant No. 2 in the suit property?

(5) Which of the properties in suit are ancestral and self-acquired of Kumar
Sahu?

(6) What are the shares of plaintiff and Defendant No. 2 in the mesne profit
and from what date they are entitled to the same?

(7) Are the alienations made by different parties out of the suit property at
different points of time to be adjusted to their respective shares?

(8) Whether the settlement deed dated 20.07.1985 executed by late Nisamani
Dei has been acted upon and are plaintiff and Defendant No. 2 bound by the
same?

(9) Was there sufficient joint family nucleus in the hand of Defendant No. 1
for alleged construction of the estate of the joint family?

(10) Whether the property of Khata No. 18 in Schedule E of the amended plaint
is available for partition?

(11) To what relief the parties are entitled?

The trial court decreed the suit and observed that the plaintiff had one-sixth
share in the ancestral property and one-third share in the separate property.
The said decree is being challenged by Defendant No. 1.”

9. The suit between the parties was adjudicated and vide the judgment and order
dated 30.12.1986 the Civil Judge drew a preliminary decree as under:

“ ORDER

The suit is decreed preliminarily on contest against defendant No: 1 with
costs an D-2 without cost. Plaintiff is entitled to 2 annas 8 pies (1/6th)
share and 1/3rd share in respect of ancestral and self acquired properties
and super structures thereon (Houses and buildings) respectively of Late
Kumar Charan Sahu out of the suit properties. She is also entitled to the
same share in respect of mense profits thereof, from the date of institution
of the suit. Defendant No-2 is also entitled to same share of properties and
mense profits. Defendant No: 1 is entitled to 10 annas 8 pies (2/3rd) and
1/3rd share in ancestral and self acquired properties respectively and
superstructure thereon of Late Kumar Charan Sahu and mense profits
thereof. An Amin Commissioner is to be deputed for effecting partition on
the above basis who is the final decree proceeding will apportion shares
on above basis after ascertaining the details of ancestral and self acquired
properties an superstructures thereon and also the quantum of mense
profits in the light of indications and finding reached on different issues
discussed in the judgment. After ascertainment of such share plaintiff and
Defendant No:2 are to be put in possession of such properties that would
be allotted to them separately in consequence of the final decree
proceeding. Hearing fee at contested useable.”

10. Thus, the Trial Court directed that:

(i) the properties listed in the Schedule ‘A’ to ‘F’ referred to above shall be
considered as ancestral properties, while the properties listed in the
Schedule ‘J’ (1 to 8 properties) were considered as the self-acquired
properties of Late Shri Kumar Sahoo.

(ii) the Respondent No. 1 (herein Original Plaintiff) was held entitled to 1/6th
share in the ancestral properties and 1/3rd share in the self-acquired
properties of Late Shri Kumar Sahoo. The Civil Court also directed that
the plaintiff was entitled to mesne profits.

(iii) similar shares and benefits accrued to the Defendant No. 2 (Respondent
No. 2 herein)

(iv) the Defendant No. 1 (the Plaintiff herein) was held entitled to 4/6 th share
in the ancestral properties and 1/3rd share in the self-acquired properties
of Late Shri Kumar Sahoo including the mesne profits.

11. It is pertinent to note that as against the judgment and decree of the Trial Court
referred to above, it is only the Defendant No. 1, who thought fit to file F.A. No. 359
of 1986 before the High Court of Orissa. This appeal was essentially filed on the ground
that all the properties of Late Shri Kumar Sahoo, as scheduled in the plaint should have
been held to be ancestral properties.

12. It appears from the materials on record that while the first appeal referred to
above was pending before the High Court, the Defendant No. 2 (Respondent No. 2
herein) entered into a settlement with the Defendant No.1 thereby relinquishing her
share in accordance with the decree passed by the Trial Court in lieu of consideration
of Rs. 50, 000/- and the portions of land in Schedule ‘A’ and ‘B’. In such circumstances
referred to above, a compromise petition dated 29.03.1991 duly signed on affidavit by
the Defendant Nos. 1 and 2 resply, was filed before the High Court which came to be
registered as the Miscellaneous Case No. 643 of 1990 in F.A. No. 359 of 1986 referred
to above.

13. The learned Single Judge of the High Court, while disposing of the F.A. No. 359
of 1986 observed as under:

“4. In this appeal, it is first contended that certain properties having been
given to the daughters by the father during his life time and certain properties
having been gifted to them at the time of their marriage and certain other
properties having been purchased by the father in the names of the two
daughters, namely plaintiff and Defendant No. 2, they are not entitled to any
separate share after death of the father.

5. There is no challenge as such to the validity of the gift deeds, if any,
in favour of the daughters at the time of their marriage. There is also no
material to indicate that certain properties had been purchased in the names
of the daughters as name-lenders and actually the property belonged to the
father. Therefore, even assuming that certain properties had been gifted and
had been purchased in the names of plaintiff and Defendant No. 2, that cannot
be a ground to negate the right of succession of the plaintiff and Defendant
No. 2, which accrued after death of the father.

6. The learned counsel for the appellant also contended that some properties
were self-acquired properties of Defendant No. 1 himself. A perusal of the
written statement indicates that no such specific case had been made out in
the written statement, nor any such material is available on record. In absence
of any evidence worth the name, it is difficult to accept such a contention
raised by the appellant.
7. The learned counsel appearing for the appellant then contended that during
pendency of the appeal, a compromise has been effected between the present
appellant and Respondent No. 2, wherein Respondent No.2 has given up her
share in favour of Defendant No. 1. Since such compromise is otherwise lawful
and it does not prejudicially affect the right of the plaintiff, it can be given
effect to and the decree of the trial court is to be modified accordingly.”

8. Thus, though all other contentions of the appellant are not acceptable, in
view of the compromise the decree of the trial court is modified to the extent
that Defendant No. 1 shall also be entitled to the share of Respondent No. 2.

In other words, he would be entitled to 5/6th share in the ancestral property
and 2/3rd share in the separate properties as determined by the trial court. The
decree of the trial court is modified to the above extent.

9. It appears that during the pendency of the appeal, receivers had been
appointed at different times and presently Defendant No. 1-appellant is
continuing as the receiver. It further appears that certain amounts have been
deposited in this Court which have been kept in fixed deposit. The fixed
deposit in this court shall be renewed from time to time for appropriate
period to fetch maximum interest. The amount which is not yet kept in fixed
deposit shall also be kept in fixed deposit in similar manner so that the
amount can be disbursed in accordance with the direction to be made in the
final decree after the final decree proceedings are over. If the parties do not
come to any amicable arrangement, the plaintiff or Defendant No. 1 may
initiate the final decree proceeding. The trial court after making necessary
adjustment towards any justified expenditure, et cetera, shall pass a direction
regarding disbursement of the amount in accordance with the shares now
indicated in this judgment. The receiver shall henceforth act under the
direction of the trial court and all necessary obligation relating to
accounting and maintenance of the properties etc. shall be determined by the
trial court and if any deposit is required to be made by the receiver, the same
shall be made in the trial court which shall make similar arrangements
regarding fixed deposits. Applications for removal of the receiver or for
imposing any fresh conditions can be made before the trial court which is
free to deal with all such applications.” (Emphasis supplied)

14. The Defendant No. 1 (Appellants herein) continued with the litigation by filing
the Letters Patent Appeal under Chapter VI of the Rules of High Court of Orissa, 1948.
The Letters Patent Appeal was filed essentially on the ground that the learned Single
Judge of the High Court had failed to correctly adjudicate the issue whether some of
the properties as mentioned in the schedule to the plaint were self-acquired properties
of Late Shri Kumar Sahoo or all the properties were ancestral properties.
15. The Defendant No. 1 (Appellants) went in appeal before the Division Bench of
the High Court essentially on the ground that all the properties were ancestral as the
same are derived out of the same nucleus of the existing ancestral properties. The appeal
before the Division Bench was registered as the Appeal bearing No. AHO No. 133 of
2000.

16. On 28.06.2001, the Defendant No. 2 (Respondent No. 2 herein) challenged the
validity of the settlement deed referred to above vide cross appeal in the AHO No. 133
of 2000.

17. In the Letters Patent Appeal filed by the Appellants herein, the Court addressed
itself on the following points of determination:

“(i) whether the findings and reasons recorded on the contentious issues by
the learned trial judge are either erroneous or error in law warranting
interference by this Court in exercise of its power?

(ii) whether the first appellate judge in not dealing with the grounds urged
by the first defendant by framing appropriate point on the findings recorded
on the contentious issues by the learned trial court, this court requires
interference with the impugned judgment in this appeal though, this Court's
jurisdiction in this Letter Patent Appeal is also analogous to the first
appellate court?

(iii) whether the findings recorded in issue no.5, holding that some of the
schedule properties are self-acquired properties of late Kumar Sahoo is
erroneous or error in law and liable to be interfered with by this Court in
this appeal?

(iv) whether the compromise petition filed by the counsel for defendants 1
& 2 In the First Appeal without special authorization in their favour for
signing the compromise petition by defendant no. 2, and plaintiff is not a
party to the compromise petition, could have been accepted by the learned
Single Judge and modified the judgment of the trial court in so far as the
share assigned to the defendant no.2, the same is legal and valid?

(v) what decree the parties are entitled to?”

18. The Division Bench of the High Court vide its impugned judgment and order
dated 5.05.2011 dismissed the appeal i.e., the AHO No. 133 of 2000 filed by the
Defendant No. 1 (Appellant herein) and allowed the cross appeal filed by the Defendant
No. 2. Thus, the Division Bench of the High Court set at naught the compromise entered
into between the Defendants.

19. In such circumstances referred to above, the Appellants (Legal heirs of the
Original Defendant No. 1) are here before this Court with the present appeals.

SUBMISSIONS ON BEHALF OF THE APPELLANTS

20. Mr. R. Basant, the learned Senior Counsel appearing for the appellants
vehemently submitted that the courts below committed a serious error in recording a
finding that the properties in Schedule ‘J’ (1 to 8 properties) were self-acquired
properties of Late Shri Kumar Sahoo. According to Mr. Basant all the properties
devolving upon the Plaintiff and Defendants are ancestral in nature.

21. It was submitted that there is nothing on record to indicate that Late Shri Kumar
Sahoo had any independent source of income through which, he during his lifetime had
acquired certain properties which, does not form part of the ancestral properties.
According to Mr. Basant, the J series properties (1 to 8 properties) were bought by Late
Shri Kumar Sahoo with the aid of the income derived from the ancestral properties and
in such circumstances, the J series (1 to 8 properties) would form part of the same
nucleus of existing ancestral properties which could now be said to have been devolved
on the Plaintiff and the Defendants as ancestral properties.

22. Mr. Basant, thereafter, addressed the Court on the effect of the
Hindu Succession
(Amendment) Act, 2005
(for short, ‘the
Amendment Act, 2005
’ or ‘2005 Amendment’)
to the
Hindu Succession Act, 1956
(for short, ‘the Act 1956’). He submitted that the
Respondent should not be allowed to raise the plea of effecting rights under the
amendment to
Section 6
of the Act 1956 after these many years. He further submitted
that assuming for the moment that the 2005 Amendment has altered the rights of the
parties, more particularly, the sisters as co-parceners, however, in view of the
settlement deed, the rights of the Respondent No. 2 (herein Original Defendant No. 2)
could be said to have been extinguished and transferred to the Appellants. He submitted
that the transfer by the Defendant No. 2 of her entire share in favour of the Defendant
No. 1 would be a disposition of her share/rights in the suit properties. The disposition
which took place in 1991 cannot be permitted to be unsettled in view of the 2005
Amendment.

23. He submitted that the retrospective effect of the 2005 Amendment would cause
havoc to the alienation made between 1965 and 2005 and in such circumstances, the
rights of the Respondent No. 1 (Plaintiff), if any, would accrue to the heirs qua the
unalienated/encumbered ancestral property, as available with the nucleus of the joint
family property with effect from 20.12.2004 only.

24. Mr. Basant submitted that as the alienations which might have been taken place
prior to 20.12.2004 cannot be reopened in order to ascertain which properties are
available for partition, the matter should be remitted to the Trial Court.

25. He further submitted that in accordance with the proviso to sub-section (1) of

Section 6
of the Act 1956 (as amended on 9.09.2005) no disposition or alienation
including partition or testamentary disposition of property which took place before
20.12.2004 shall be invalidated or set aside on account of the 2005 Amendment.

26. Mr. Basant in support of his aforesaid submission invited the attention of this
Court to the decision of this Court in the case of
Vineeta Sharma v. Rakesh Sharma
and Others
reported in (2020) 9 SCC 1, more particularly, the observations in para 76
at page 58, which reads thus:

“76. It was argued that in case Parliament intended that the incident of
birth prior to 2005 would be sufficient to confer the status of a coparcener,
Parliament would need not have enacted the proviso to
Section 6(1)
. When
we read the provisions conjointly, when right is given to the daughter of a
coparcener in the same manner as a son by birth, it became necessary to
save the dispositions or alienations, including any partition or testamentary
succession, which had taken place before 20-12-2004. A daughter can
assert the right on and from 9-9-2005, and the proviso saves from
invalidation the above transactions.” (Emphasis supplied)
27. Mr. Basant submitted that there was no good reason for the High Court to look
into the validity and execution of the settlement deed between the Defendant Nos. 1
and 2 resply. If all the properties are considered to be ancestral, the Plaintiff is entitled
to 1/6th share of the total ancestral properties, while the Defendant No. 1 would be
entitled to 5/6th share of the total ancestral property. He submitted that in the event, it
is determined that the J series properties (1 to 8 properties) are in fact self-acquired,
then the Plaintiff is entitled to 1/6th share of the ancestral property and 1/3rd share of the
self-acquired property, while the Defendant No. 1 would be entitled to 5/6th share of
the total ancestral property and 2/3rd share of the self-acquired property.

28. In support of his submission that the settlement between Defendant Nos. 1 and
2 resply was lawful, just and proper, he relied on the following decisions of this Court:

(
i) Bai Chanchal and Others v. Syed Jalaluddin and Others
reported in (1970) 3
SCC 124 at para 8,

(
ii) Byram Pestonji Gariwala v. Union Bank of India and Others
reported in (1992)
1 SCC 31 at para 38-41,

(
iii) D.S. Lakshmaiah and Another v. L. Balasubramanyam and Another
reported
in (2003) 10 SCC 310 at para 18,

(iv) Jineshwardas (Dead) by LRs. and Others v. Jagrani (Smt) and Another
reported in (2003) 11 SCC 372 at para 7-8 and

(v) Pushpa Devi Bhagat (Dead) through
LR. Sadhna Rai (Smt) v. Rajinder Singh
and Others
reported in (2006) 5 SCC 566 at paras 18, 19, 23-25.

29.
In such circumstances
referred to above
, Mr. Basant prays that there being merit
in his appeals, the same may be allowed and the impugned judgment and order passed
by the High Court be modified accordingly.

SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1 (ORIGINAL
PLAINTIFF)
30. Ms. B. Sunita Rao, the learned counsel appearing for the Respondent No. 1
(Original Plaintiff) vehemently submitted that no error not to speak of any error of law
could be said to have been committed by the High Court in passing the impugned
judgment and decree. She submitted that in view of the decision of this Court in the
case of
Vineeta Sharma
(supra) the Plaintiff is now entitled to 1/3 rd share in all the
properties of Late Shri Kumar Sahoo, which were available at the time of filing of the
suit.

She submitted that in view of the decision of this Court, in the case of
Ganduri
Koteshwaramma and Another v. Chakiri Yanadi and Another
reported in (2011) 9
SCC 788, the preliminary decree can be awarded/altered or modified in the event of the
changed circumstances, even if no appeal has been filed.

31. The learned counsel further submitted that in view of the amendment of 2005 to

Section 6
of the Act 1956 and the decision of this Court in case of
Vineeta Sharma

(supra) the daughters are entitled to equal share with that of the son in the coparcenary
properties. The Plaintiff being one of the daughters of Late Kumar Sahoo is entitled to
a larger and equal share in the ancestral property and in such circumstances the decree
now needs to be modified on account of the operation of law.

32. The learned counsel submitted that the Plaintiff and Defendants are now each
entitled to 1/3rd share of both ancestral and self-acquired properties of Late Kumar
Sahoo. While explaining the true import of the operation of the amended provision of

Section 6(1)
of the Act 1956, she submitted that the alienations before 20.12.2004 are
permitted but the property alienated would fall to the share of the co-parcener, who
made the alienation, if no legal binding necessity is proved. The learned counsel pointed
out that the Trial Court has held that alienation would be a part of the share of the
Defendant No. 1. She submitted that any alienation after the date of filing of the suit
would be hit by the doctrine of lis pendens. The alienation prior to the filing of the suit
was considered by the Trial Court and specific finding in that regard has been recorded.

33. It was pointed out that out of 4.408 acres of land in Schedule ‘A’ and ‘B’
properties, the unencumbered property available for immediate division is 3.762 acres
(around 94 guntas). It was also pointed out that full extent of the suit properties in
Schedule ‘C’, ‘D’, ‘E’ and ‘F’ resply are available for division, as at the time of the
preliminary decree.

34. As regards the settlement between the Defendant Nos. 1 and 2, the learned
counsel submitted that the Plaintiff was never a part of the compromise. No notice was
issued to her nor she had put her signature on any part of the compromise deed or had
agreed to the terms of the compromise. According to the learned counsel, the Plaintiff
never joined in the settlement. On the issue of disbursement of the receivership amount
deposited in the Court, the counsel submitted that the Plaintiff is 84 years old and has
filed multiple IAs being IA No. 44977 of 2013, IA No. 127171 of 2019 and IA No.
190628 of 2022 resply in the present proceedings for disbursement of her 1/3 rd share in
the amount already deposited by the receiver. It was submitted that the Plaintiff does
not have any independent source of income and has to incur a lot of expenditure towards
medical treatment etc.

35. In the written submissions filed by the learned counsel appearing for the
Respondent No. 1, the defaults alleged to have been committed by the Defendant No.
1 as narrated in IA No. 190628 of 2022 has been highlighted as under:

“1. Modification of the superstructures on suit property without leave of
the Court. (Relevant page 10-13 of IA)

2. Dues with regard to suit properties:

a. Water Bills - Rs. 51,478/-
b. Revenue Tax - Rs. 80,733/-
c. Electricity Bills - Rs.1,89,228.84
total Rs. 3,21,439.84
(Relevant page 14-15 of IA)

3. Illegal filling of two Jalasaya in Suit properties in contempt of the
order of the Hon’ble High Court (Reports of tahsildar, Cuttack
Municipal Corporation and FIR filed by police on complaint of
tahsildar are annexed, Relevant pages 17-20 of IA)

4. Installation of 100 Kw Electric transformer on suit property after
getting permission for different plot. (Relevant Page 21 of IA)

5. Obtained permission for Electric substation of 500 KVA for suit
property by forging signature of plaintiff and Defendant 2 (in 2016
whereas Defendant no. 2 died in 2008) (Relevant Page 22 of IA)

6. A case for authorized construction on suit properties has been
instituted by Cuttack Development Authority being U.C. No.
249/2016. (Relevant Page 23 of IA)”

36. The learned counsel vehemently submitted that the Defendant No. 2 should be
removed as a receiver forthwith and the Plaintiff should be appointed as the receiver of
the properties.

SUBMISSIONS ON BEHALF OF THE RESPONDENT NOS. 3, 4, 5, 7 AND 8
RESPLY (LEGAL HEIRS OF THE ORIGINAL DEFENDANT NO. 2)

37. Mr. V. Chitambaresh, the learned Senior Counsel addressed himself on four
issues:

(i) Whether the properties as scheduled in the plaint are ancestral or self-

acquired properties of the predecessor-in-interest of the plaintiff and
defendants 1 and 2 and what share the parties are entitled to?

(ii) Whether a cross-appeal is maintainable for the purpose of challenging
the alleged compromise?

(iii) Whether the alleged settlement deed dated 28.03.1991 is valid and
binding under order XXIII
Rule 3 Code of Civil Procedure
, 1908 (for
short, ‘
the CPC
’)?

(iv) Whether the compromise was acted upon by the Defendant Nos. 1 and
2?

(v) Whether the counsel can sign the Compromise Petition without an
express consent?

38. On the first issue, the learned Senior Counsel submitted that there is a concurrent
finding on the nature of the suit properties recorded by all the three courts i.e., the Trial
Court, the Single Judge of the High Court and the Division Bench of the High Court.
He would submit that the Plaintiff as well as the Defendant No. 2 being daughters and
co-parceners are entitled to equal share in the ancestral properties as along with their
brother i.e., the Defendant No. 1 (Appellant). He would submit that the law in this
regard is now well settled as explained by this Court in the case of
Vineeta Sharma

(supra).

Relying on the decision of this Court, in the case of
Ganduri Koteshwaramma

(supra) he submitted that even if no appeal has been filed by the Plaintiff and the
Defendant, the shares will have to be determined in accordance with the amendment
and the law as
laid down in

Vineeta Sharma
(supra). Over and above the share
reckoned in the alleged compromise in dispute, the Defendant No. 2 would be entitled
to additional 1/6th share in the ancestral property.

39. On the second issue
referred to above
, the learned Senior Counsel submitted that
a cross-appeal is maintainable for the purpose of challenging the compromise. He
submitted that a cross-appeal under
Order XLI Rule 22 of the CPC
is as good as a
regular first appeal and the same would be maintainable, even if, the regular first appeal
is dismissed or withdrawn. A cross-appeal is an exercise of substantive right of appeal
and only the procedure would vary.

40. The learned Senior Counsel also invited the attention of this Court to the
provisions of Order XLIII Rule 1-A (2)
of the CPC
. He would submit that the cross-
objector is entitled under
Order XLI Rule 22 of the CPC
read with Order XLIII Rule 1-
A (2)
of the CPC
to contend in his or her cross-appeal that the alleged settlement deed
or agreement should not have been reckoned as a valid compromise and recorded under

Order XXIII Rule 3 of the CPC
.

41. In such circumstances
referred to above
, the learned Senior Counsel prays that
there being no merit in the appeals the same may be dismissed and the shares of the
parties be determined in accordance with the 2005 Amendment.

ANALYSIS

42. Having heard the learned counsel appearing for the parties and having gone
through the materials on record, the following questions fall for our consideration:
(i) In what manner, the rights of the parties would be governed keeping in mind the
dictum as laid by this Court in its decision in the case of
Vineeta Sharma
(supra)

(ii) Whether the High Court was justified in declaring the settlement between the
appellants herein (Defendant No. 1) and Respondent No. 2 (Defendant No. 1) as
invalid? In other words, whether the High Court was right in allowing the cross-appeal
filed by the Original Defendant No. 2 (Respondent No. 2 herein).

43. Before adverting to the rival submission canvassed on either side, we should give
a fair idea as regards the history and development of Hindu Law as well as look at the
Law Commission Report, Report of the Standing Committee of Parliament and the
Statement of Objects and Reasons of the Bill introduced in Parliament with the purpose
of finding out the true intent of the Parliament in amending
Section 6
of the Act 1956
by the 2005 Amendment.

44. We have traced the history and development of Hindu Law from a Full Bench
decision of the Bombay High Court, in the case of Badrinarayan Shankar Bhandari
and Others v. Omprakash Shankar Bhandari reported in AIR 2014 Bom 151 (FB).

Old Hindu Law

45. Before the enactment of the Principal Act, Hindus were covered by shastric and
customary law which varied from region to region. Principally, there were two schools
of Hindu Law in India i.e. Dayabhaga which was prevalent in eastern part of India i.e.
Bengal and the adjoining areas and Mitakshara which was prevalent in the rest of India.
Under the Mitakshara School of Hindu Law, woman in a joint Hindu family had merely
a right of maintenance/ sustenance but had no right of inheritance to property. The basis
of Hindu joint family was a common male ancestor and the properties of the family
were held as a coparcenary property with male member of the family having a right to
the property by virtue of birth and their interest in the coparcenary property would keep
varying depending upon the death or a birth of a male in the joint Hindu Family. The
property of a male coparcener on his death used to pass by survivorship in the
Mitakshara School of Hindu Law. No female is a member of the coparcenary though,
she is a member of the joint Hindu family. The coparcenary would normally consist up
to four degrees i.e. the common ancestor (coparcener), his son, grandson and great
grandson.

46. Under the Dayabhaga School of Hindu Law, the daughters also got equal share
along with their brothers. Under the Dayabhaga School property is transmitted by
Succession and not by Survivorship. In this School, a female could be a coparcener. So
far as the Dayabhaga School was concerned, there was no concept of a coparcenary
property and every member of a Hindu family would hold property in his/her own right
and was entitled to dispose of the property as he/she deems fit either by gift or Will.
There was no concept of passing of property by survivorship nor did a Hindu male in
Dayabhaga School acquire rights to property merely by virtue of his birth.
Consequently, women had a right equal to the rights to that of men belonging to the
family in the Dayabhaga School of Hindu Law.

47. The earliest legislation with regard to right of female inheritance was made in
1929 called the Hindu Law of Inheritance Act, 1929.
This Act
conferred inheritance
right to three female heirs- son's-daughter, daughter's-daughter and sister. Thus,
bringing about restrictions on the exclusive Rule of Survivorship. The next legislation
was the Hindu Women’s Right to Property Act 1937.
This Act
enabled the widow to
succeed along with the son of the deceased in equal share to the property of her
deceased husband. However, the widow was entitled only to limited estate in the
property i.e. life estate and could not dispose of the property during her life time.

48. In 1950, while framing the Constitution,
Articles 14
, 15(2)

& (3)
and
of the
Constitution of India, sought inter alia to restrain practice of discrimination against
women and made equal treatment of women a part of the fundamental rights guaranteed
under the Constitution. In line with the above Constitutional objective, the Parliament
enacted the
Hindu Succession Act,1956
i.e. the Principal Act.
This Act
applies to all
Hindus including Buddhists, Jains and Sikhs. It lays down a uniform and
comprehensive system of inheritance and applies to all Hindus, whether governed by
Mitakshara or Dayabhaga School of Hindu Law. However, Section 6 of the Principal
Act as originally enacted retained substantially the Rule of passing of property in a
coparcenary by survivorship, although it did give rights of testamentary disposition to
Hindu males in respect of his properties including his coparcenary share. The erstwhile
Section 6 of the Principal Act (pre-amended
Section 6
) inter alia provided that the
interest of a coparcener in the coparcenary property if not disposed of by Will under
Section 30 of the Principal Act, would devolve in terms of pre-amended
Section 6
. The
main part of pre-amended
Section 6
provided that the right of male Hindu at the time
of his death in the coparcenary property will devolve by survivorship. However, the
proviso provided that if the deceased coparcener has any female relatives specified in

Class I of the Schedule to the Act
, then the property will devolve in terms of pre-
amended
Section 6
. The Explanation 1 provides that there would be notional partition
immediately before his death so as to allocate the share in the coparcenary to the
deceased coparcener.

49. It is interesting to note that the Hindu Code Bill wanted to do away with the
Mitakshara coparcenary completely. However, the same was opposed to and the
erstwhile
Section 6
was enacted in the Principal Act. Consequently, if a partition took
place in the coparcenary property, then each male coparcener would get his share and
the mother and wife/widow would not become a coparcener but would get a share in
the coparcenary property. But a daughter would get no share in the coparcenary
property. The daughter would only get a share as one of the heirs on the death of
coparcener, out of the share of the deceased in the coparcenary property on notional
partition, in view of proviso to pre-amended Section 8 of the Principal Act. In terms of
Section 30 of the Principal Act, a Hindu male can dispose of his entire property
including his interest in coparcenary property by testamentary disposition/ Will and
also in the process deprive his female heirs of any share.

Making of Amendment Act, 2005
50. Keeping the aforesaid position of Hindu Law, in its 174 th Report (May 2000),
the Law Commission of India was of the view that the gender reforms were called for
to ensure equality. The Commission noted the fact that in various States such as Kerala,
Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka, attempts had already been
made to bring about the gender equality. But all these States, except Kerala, while
conferring coparcenary rights on daughters also denied such rights to daughters married
prior to State Acts coming into force.

51. The Law Commission recommended that the daughter should be made
coparcener by birth and that she should be entitled to get a share on partition and/or on
the death of the male coparcener. The Commission also recommended that a daughter
who is married after the commencement of the Amendment Act, should be entitled to
a share in the ancestral property as she has already become a coparcener prior to her
marriage. One more recommendation of the Law Commission was to do away with the
erstwhile Section 23 of the Principal Act which provided that a woman would have a
right to stay in the family house as a member of the joint Hindu Family but unlike a
male, she would have no right to demand a partition of the family house. The
Commission recommended that she should have rights equal to the male in respect of
a family house.

52. The Law commission also observed that the Law of Succession falls under Entry
V of the List III (concurrent list) in VII Schedule of the Constitution. In view of
Article
of the Constitution of India the laws made by the above mentioned five States,
would stand repealed to the extent they are repugnant to the Principal Act on
amendment.

53. On 20th December, 2004, the Hindu Succession Amendment Bill 2004 was
introduced in the Rajyasabha, inter alia, seeking to amend the erstwhile
Section 6
and
doing away/omitting the erstwhile Section 23 of the Principal Act.

“Statement of Objects and Reasons for amending the ‘Principal Act’ read
as follows:-
STATEMENT OF OBJECTS AND REASONS

The Hindu Succession Act, 1956 has amended and codified the law relating
to intestate succession Hindus and gave rights which were till then unknown
in relation 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
Murumakkattayam, Aliyasantana and Nambudir laws.”

The Act
applies to every person who is a Hindu by 28 of 72 SA.566.2011
religion in any of its forms or developments including a Virashaiva, a
Lingayat or a follower of the Brahmo, Parathana 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
.

2.
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 females in it means that the
females cannot inherit in ancestral property as their male counterparts to.

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 of
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
.

3. 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.”
4. The above proposals are based on the recommendations of the Law
Commission of India as contained in its 174th Report on 'Property Rights
of Women: Proposed Reform under the Hindu Law.

5. The Bill seeks to achieve the above objects."

(Emphasis supplied)

54. The Bill inter alia provided in proviso to proposed
Section 6(1)
that
the Amendment Act would not apply to a daughter married before the commencement
of the Amendment Act and also that the Amendment Act will have no application to a
partition in case the partition had been affected before the commencement of
the Amendment Act. The aforesaid Bill was thereafter referred to the Standing
committee of Parliament. The Standing Committee after recording the historical growth
of Hindu Law and Gender inequality with regard to the property right practiced against
a female Hindu suggested that proviso 1 to proposed
Section 6(1)
of the Bill which
sought to exclude the daughter married before the commencement of the Amendment
Act from the benefit of the Act should be done away with.

55. The Standing Committee also suggested that the partition of the Hindu family
property should be properly defined in the Amendment Act. It was suggested that
partition for all purposes should be either by registered documents or by decree of
Court. However, where oral partition is pleaded, the same should be backed by evidence
in support. Further omission of
Section 23
as suggested by the Law Commission, will
enable the Hindu Women to seek partition of a family house occupied by the family
members just as male member could seek partition.

56. Thereafter, on 9.09.2005, the
Amendment Act, 2005
came to be passed as Act
39 of 2005.
Section 3
of the Amendment Act, 2005 substituted erstwhile Section 6 of
the Principal Act.
The Amendment Act, 2005
did away with exclusion of married
daughter from getting the benefit of the amendment and also added a proviso to Section
6(1) of the Principal Act saving partitions done prior to 20.12.2004 (the date of
introduction of the Bill in Rajya Sabha). The Explanation to
Section 6(5)
of the
Principal Act provided that for the purposes of the
Section 6
of the Act partition only
means partition by registered document or decree of Court.

57. Before averting to the rival submissions canvassed on either side, it would be
apposite to reproduce the erstwhile
Section 6
as appearing in the Principal Act and the
amended Section 6 of the Principal Act, as substituted by Section 3 of the Amendment
Act for the sake of convenience. The pre-amended Section 6 of the Principal Act reads
as under:

“
Section 6
:- Devolution of interest in coparcenary property - when a male
Hindu dies after the commencement of this Act, having at the time of his
death an interest in a Mitakshara coparcenary property, his interest in the
property shall devolve by survivorship upon the surviving members of the
coparcenary and not in accordance with this Act;

Provided that, if the deceased had left him surviving a female relative
specified in class I of the Schedule or a male relative specified in that class
who claims through such female relative, the interest of the deceased in the
Mitakshara coparcenary property shall devolve by testamentary or
intestate succession, as the case may be, under this Act and not by
survivorship.

Explanation 1 - For the purposes of this section, the interest of a Hindu
Mitakshara coparcener shall be deemed to be the share in the property that
would have been allotted to him if a partition of the property had taken
place immediately before his death, irrespective of whether he was entitled
to claim partition or not.

Explanation 2 - Nothing contained in the proviso to this section shall be
construed as enabling a person who has separated himself from the
coparcenary before the death of the deceased or any of his heirs to claim
on intestacy a share in the interest referred to therein.”

58. The substituted Section 6 of the Principal Act as amended by the
Amendment
Act, 2005
which is in force w.e.f. 9.09.2005 reads as under:

“6. Devolution of interest of coparcenary property.—
(1) On and from the commencement of the
Hindu Succession (Amendment)
Act, 2005
, in a Joint Hindu family governed by the Mitakshara law, the
daughter of a coparcener shall,

(a) by birth become a coparcener in her own right in the same manner as
the son;
(b) have the same rights in the coparcenary property as she would have had
if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary
property as that of a son, and any reference to a Hindu Mitakshara
coparcener shall be deemed to include a reference to a daughter of a
coparcener:

Provided that nothing contained in this sub-

section shall affect or invalidate any disposition or alienation including any
partition or testamentary disposition of property which had taken place
before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-

section (1) 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 in, as property capable of being
disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the
Hindu Succession
(Amendment) Act, 2005
, his interest in the property of a Joint Hindu family
governed by the Mitakshara law, shall devolve by testamentary or intestate
succession, as the case may be, under this Act and not by survivorship, and
the coparcenary property shall be deemed to have been divided as if a
partition had taken place and,--

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre- deceased daughter, as they
would have got had they been alive at the time of partition, shall be allotted
to the surviving child of such pre-deceased son or of such pre-deceased
daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-
deceased daughter, as such child would have got had he or she been alive
at the time of the partition, shall be allotted to the child of such pre-
deceased child of the pre-deceased son or a pre-deceased daughter, as the
case may be.

Explanation. — For the purposes of this sub- section, the interest of a Hindu
Mitakshara coparcener shall be deemed to be the share in the property that
would have been allotted to him if a partition of the property had taken
place immediately before his death, irrespective of whether he was entitled
to claim partition or not.
(4) After the commencement of the
Hindu Succession (Amendment) Act,
, no court shall recognise any right to proceed against a son, grandson
or great- grandson for the recovery of any debt due from his father,
grandfather or great-grandfather solely on the ground of the pious
obligation under the Hindu law, of such son, grandson or great-grandson
to discharge any such debt:

Provided that in the case of any debt contracted before the commencement
of the
Hindu Succession (Amendment) Act, 2005
, nothing contained in this
sub- section shall affect—

(a) the right of any creditor to proceed against the son, grandson or great-

grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt,
and any such right or alienation shall be enforceable under the rule of pious
obligation in the same manner and to the same extent as it would have been
enforceable as if the
Hindu Succession (Amendment) Act, 2005
had not
been enacted.

Explanation.—For the purposes of clause (a), the expression "son",
"grandson" or "great- grandson" shall be deemed to refer to the son,
grandson or great-grandson, as the case may be, who was born or adopted
prior to the commencement of the
Hindu Succession (Amendment) Act,
.

(5) Nothing contained in this section shall apply to a partition, which has
been effected before the 20th day of December, 2004."

Explanation.- For the purposes of this section "partition" means any
partition made by execution of a deed of partition duly registered under
the
Registration Act, 1908
(16 of 1908) or partition effected by a decree of
a court.”

59. Before we proceed to discuss the dictum, as laid by this Court in
Vineeta
Sharma
(supra) we must look into the decision of this Court in the case of
Ganduri
Koteshwaramma
(supra).

In
Ganduri Koteshwaramma
(supra) this Court, in paras
11, 12, 13 & 14 resply, observed as under:

“11. The new
Section 6
provides for parity of rights in the coparcenary
property among male and female members of a joint Hindu family on and
from 9-9-2005. The legislature has now conferred substantive right in
favour of the daughters. According to the new
Section 6
, the daughter of a
coparcener becomes a coparcener by birth in her own rights and liabilities
in the same manner as the son. The declaration in
Section 6
that the
daughter of the coparcener shall have same rights and liabilities in the
coparcenary property as she would have been a son is unambiguous and
unequivocal. Thus, on and from 9-9-2005, the daughter is entitled to a share
in the ancestral property and is a coparcener as if she had been a son.

12. The right accrued to a daughter in the property of a joint Hindu family
governed by the Mitakshara law, by virtue of the 2005 Amendment Act, is
absolute, except in the circumstances provided in the proviso appended to
sub-section (1) of
Section 6
. The excepted categories to which new
Section
of the 1956 Act is not applicable are two, namely, (i) where the disposition
or alienation including any partition has taken place before 20-12-2004;

and (ii) where testamentary disposition of property has been made before
20-12-2004. Sub-section (5) of
Section 6
leaves no room for doubt as it
provides that this section shall not apply to the partition which has been
effected before 20-12-2004. For the purposes of new
Section 6
it is
explained that “partition” means any partition made by execution of a deed
of partition duly registered under the
Registration Act, 1908
or partition
effected by a decree of a court. In light of a clear provision contained in the
Explanation appended to sub-section (5) of
Section 6
, for determining the
non-applicability of the section, what is relevant is to find out whether the
partition has been effected before 20-12-2004 by deed of partition duly
registered under the
Registration Act, 1908
or by a decree of a court. In the
backdrop of the above legal position with reference to
Section 6
brought in
the 1956 Act by the 2005 Amendment Act, the question that we have to
answer is as to whether the preliminary decree passed by the trial court on
19-3-1999 and amended on 27-9-2003 deprives the appellants of the
benefits of the 2005 Amendment Act although final decree for partition has
not yet been passed.

13. The legal position is settled that partition of a joint Hindu family can be
effected by various modes, inter alia, two of these modes are (one) by a
registered instrument of a partition and (two) by a decree of the court. In
the present case, admittedly, the partition has not been effected before 20-
12-2004 either by a registered instrument of partition or by a decree of the
court. The only stage that has reached in the suit for partition filed by
Respondent 1 is the determination of shares vide preliminary decree dated
19-3-1999 which came to be amended on 27-9-2003 and the receipt of the
report of the Commissioner.

14. A preliminary decree determines the rights and interests of the parties.
The suit for partition is not disposed of by passing of the preliminary decree.
It is by a final decree that the immovable property of joint Hindu family is
partitioned by metes and bounds. After the passing of the preliminary
decree, the suit continues until the final decree is passed. If in the
interregnum i.e. after passing of the preliminary decree and before the final
decree is passed, the events and supervening circumstances occur
necessitating change in shares, there is no impediment for the court to
amend the preliminary decree or pass another preliminary decree
redetermining the rights and interests of the parties having regard to the
changed situation.”

60. Thus, in
Ganduri Koteshwaramma
(supra) this Court made the following
things explicitly clear:

(i) The equal share given to the daughter of a coparcener governed by Hindu
Mitakshara Law along with brothers is by way of a substantive right;

(ii) Though the substantive right is created on and from 9-9-2005, it relates
back to the incidence of birth;

(iii) The substantive right would not be available only if the coparcenary
property is disposed of or alienated including by any partition or
testamentary disposition of property before 20-12-2004 and;

(iv) If there is disposition of a coparcenary property by any partition, such
partition must be by execution of a Deed of Partition duly registered under
the
Registration Act, 1908
or effected by a decree of the Court.

(v) A preliminary decree of partition only determines the rights and
interests of the parties. It is only by a final decree that the immovable
property of joint Hindu family is partitioned by metes and bounds. After the
passing of the preliminary decree, the suit continues until the final decree is
passed. If in the interregnum i.e. after passing of the preliminary decree and
before the final decree is passed, if there is any change in law necessitating
determination of shares accordingly then, there would be no impediment for
the Court to amend the preliminary decree or pass another preliminary decree
redetermining the rights and interests of the parties having regard to the
changed situation.
61. Before the position of law came to be settled by this Court in
Vineeta Sharma

(supra) there were to decisions of this Court governing the rights of the parties: (i)
Prakash and Others v. Phulavati and Others reported in (2016) 2 SCC 36 and (ii)
Danamma alias
Suman Surpur and Another v. Amar and Others
reported in (2018)
3 SCC 343.
In Prakash (supra) it was held that
Section 6
is not retrospective in
operation and it would apply when both the coparcener and his daughter were alive on
the date of commencement of the Amendment Act i.e., 9.09.2005. Accordingly, the
provisions of
Section 6
were held to be prospective. In Danamma (supra) this Court
held that the amended provisions of
Section 6
conferred full rights upon the daughter
coparcener. Any coparcener including a daughter could claim a partition in the
coparcenary property.

62. In Danamma (supra), one Gurulingappa who was the father and coparcener of
the claimant daughter, died in the year 2001, leaving behind two daughters, two sons
and a widow. Thus, the father of the daughter and coparceners was not alive when the
substituted provision of
Section 6
came into force. Accordingly, the daughters, sons
and the widow were given 1/5th share in the properties. In this background, this Court
took the view that when a daughter, claiming and demanding a share in the coparcenary
property is alive on 9.09.2005, she would be entitled to the benefit of the amended
provision irrespective of the effect whether a coparcener had died before the
commencement of the Amendment Act.

63. A three-Judge Bench of this Court doubted the correctness of the dictum as laid in
Prakash (supra) as there was an apparent conflict between the dictum as laid in
Prakash (supra) and Danamma (supra) referred to above. The question concerning the
interpretation of
Section 6
of the Act 1956 was referred to a larger Bench.

64. The larger Bench ultimately settled the position of law in
Vineeta Sharma

(supra). The three-Judge Bench of this Court considered the following main questions
amongst the others:

(i) Whether the substituted
Section 6
of the Hindu Succession Act, 1956 would
apply to cases where male coparcener had already died prior to the
commencement of the
Amendment Act, 2005
?

(ii) Liability of daughter for the debts contracted by the deceased coparcener.

(iii) What is the interpretation, scope and impact of sub-section (5) of
substituted
Section 6
of the Hindu Succession Act, 1956?

65.
In
Vineeta Sharma
(supra) (paras 60, 68, 69 and 129), the Court held that for
the applicability of substituted
Section 6
of the Hindu Succession Act, 1956, it is not
necessary that the male coparcener must be alive on the date of commencement of the

Amendment Act, 2005
(i.e., 9.9.2005). Hence, it follows that the substituted
Section 6

of the Hindu Succession Act, 1956 is not confined to cases where male coparcener dies
after the commencement of the
Amendment Act, 2005
. Substituted
Section 6
also
applies to cases where male coparcener had already died prior to the commencement
of the
Amendment Act, 2005
.

66. The Court explained the difference between prospective statute, retrospective
statute and retroactive statute. It has been observed in para 61:

“61. The prospective statute operates from the date of its enactment
conferring new rights. The retrospective statute operates backward and
takes away or impairs vested rights acquired under existing laws. A
retroactive statute is the one that does not operate retrospectively. It
operates in futuro. However, its operation is based upon the character or
status that arose earlier. Characteristic or event which happened in the
past or requisites which had been drawn from antecedent events. Under
the amended
Section 6
, since the right is given by birth, that is, an
antecedent event, and the provisions operate concerning claiming rights
on and from the date of Amendment Act.” (Emphasis supplied)

67. Interpreting sub-section (1) of substituted
Section 6
of the Act 1956, the Court
opined in para 60 as under:

“60. The amended provisions of
Section 6(1)
provide that on and from the
commencement of the Amendment Act, the daughter is conferred the right.

Section 6(1)(a)
makes daughter by birth a coparcener “in her own right”
and “in the same manner as the son”.
Section 6(1)(a)
contains the concept
of the unobstructed heritage of Mitakshara coparcenary, which is by
virtue of birth.
Section 6(1)(b)
confers the same rights in the coparcenary
property “as she would have had if she had been a son”. The conferral of
right is by birth, and the rights are given in the same manner with incidents
of coparcenary as that of a son and she is treated as a coparcener in the
same manner with the same rights as if she had been a son at the time of
birth. Though the rights can be claimed, w.e.f. 9-9-2005, the provisions
are of retroactive application; they confer benefits based on the
antecedent event, and the Mitakshara coparcenary law shall be deemed to
include a reference to a daughter as a coparcener. At the same time, the
legislature has provided savings by adding a proviso that any disposition
or alienation, if there be any testamentary disposition of the property or
partition which has taken place before 20-12-2004, the date on which the
Bill was presented in the Rajya Sabha, shall not be invalidated.”
(Emphasis supplied)

68. The Court further observed in para 68 as follows:

“68. Considering the principle of coparcenary that a person is conferred
the rights in the Mitakshara coparcenary by birth, similarly, the daughter
has been recognised and treated as a coparcener, with equal rights and
liabilities as of that of a son. The expression used in
Section 6
is that she
becomes coparcener in the same manner as a son. By adoption also, the
status of coparcener can be conferred. The concept of uncodified Hindu
law of unobstructed heritage has been given a concrete shape under the
provisions of
Sections 6(1)(a)
and
6(1) (b)
. Coparcener right is by birth.
Thus, it is not at all necessary that the father of the daughter should be
living as on the date of the amendment, as she has not been conferred the
rights of a coparcener by obstructed heritage. According to the
Mitakshara coparcenary Hindu law, as administered which is recognised
in
Section 6(1)
, it is not necessary that there should be a living, coparcener
or father as on the date of the amendment to whom the daughter would
succeed. The daughter would step into the coparcenary as that of a son by
taking birth before or after the Act. However, daughter born before can
claim these rights only with effect from the date of the amendment, i.e., 9-
9-2005 with saving of past transactions as provided in the proviso to

Section 6(1)
read with
Section 6(5)
.” (Emphasis supplied)

69. The Court has further observed in para 69 as under:

“69. …
Section 6(1)
recognises a joint Hindu family governed by
Mitakshara law. The coparcenary must exist on 9-9-2005 to enable the
daughter of a coparcener to enjoy rights conferred on her. As the right is
by birth and not by dint of inheritance, it is irrelevant that a coparcener
whose daughter is conferred with the rights is alive or not. Conferral is
not based on the death of a father or other coparcener. In case living
coparcener dies after 9-9-2005, inheritance is not by survivorship but by
intestate or testamentary succession as provided in substituted
Section
6(3)
.”
(Emphasis supplied)

70. Explaining sub-section (3) of substituted
Section 6
, the Court observed in
paragraph 66 as under:

“66. With respect to a Hindu who dies after the commencement of the
Amendment Act, as provided in
section 6(3)
his interest shall pass by
testamentary or intestate succession and not by survivorship, and there is
a deemed partition of the coparcenary property in order to ascertain the
shares which would have been allotted to his heirs had there been a
partition. The daughter is to be allotted the same share as a son; even
surviving child of predeceased daughter or son are given a share in case
the child has also died then the surviving child of such predeceased child
of a predeceased son or predeceased daughter would be allotted the same
share, had they been alive at the time of deemed partition. Thus, there is
a sea-change in substituted
Section 6
. In case of death of coparcener after
9-9-2005, succession is not by survivorship but in accordance with
Section
6(3)
. The Explanation to
Section 6(3)
is the same as Explanation I to

Section 6
as originally enacted. …” (Emphasis supplied)

71. The following propositions, amongst others, follow from the abovequoted
paragraphs of the decision in
Vineeta Sharma
(supra):

(A) Sub-section (1) of the substituted
Section 6
of the Hindu Succession Act,
1956 recognises a joint Hindu family governed by Mitakshara law.

(B) The coparcenary must exist on 9.9.2005, i.e., the date of commencement of
the
Amendment Act, 2005
.

(C) The daughter has been recognised and treated as a coparcener by birth, with
equal rights and liabilities as of that of a son.

(D) It is not necessary that a coparcener whose daughter is conferred with the
rights is alive or not on the date of commencement of the
Amendment Act,
. The daughter would step into the coparcenary as that of a son by birth.
(E) Though the daughter would step into the coparcenary as that of a son by
birth whether the daughter is born before the commencement of the

Amendment Act, 2005
or after the commencement of the
Amendment Act,
, but the daughter born before the commencement of the
Amendment Act,
can claim coparcenary rights only with effect from the date of the
amendment, i.e., 9.9.2005 with saving of past transactions as provided in the
proviso to
Section 6(1)
read with
Section 6(5)
.

(F) In case a coparcener living on the date of commencement of the

Amendment Act, 2005
(i.e., 9.9.2005) dies after 9.9.2005, inheritance is not by
survivorship but by intestate or testamentary succession as provided in
substituted
Section 6(3)
.

72. As noted earlier, sub-section (5) of substituted
Section 6
of the Hindu Succession
Act, 1956 provides that nothing contained in the substituted
Section 6
shall apply to a
partition, which has been effected before 20th December, 2004 (i.e., date on which the
Bill corresponding to the
Amendment Act, 2005
was presented in the Rajya Sabha).
Explanation to the substituted
Section 6
provides that for the purposes of
Section 6

“partition” means (i) any partition made by execution of a deed of partition duly
registered under the
Registration Act, 1908
(16 of 1908), or (ii) any partition effected
by a decree of a court.
Interpreting sub-section (5) of substituted
Section 6
and
Explanation to substituted
Section 6
, the Court in
Vineeta Sharma
(supra), has
observed in para 67 as under:

“67. The proviso to
Section 6(1)
and
Section 6(5)
saves any partition
effected before 20-12-2004. However, Explanation to
Section 6(5)

recognises partition effected by execution of a deed of partition duly
registered under the
Registration Act, 1908
or by a decree of a court.
Other forms of partition have not been recognised under the definition of
“partition” in the Explanation.”

73. In regard to the sub-section (5) of substituted
Section 6
and Explanation to
substituted
Section 6
, the Court held:
(A) It has been held that the daughter has now become entitled to claim partition
of coparcenary with effect from 9.09.2005 like a son.

The Court observed in para 85 as under:

“85. The right to claim partition is a significant basic feature of the
coparcenary, and a coparcener is one who can claim partition. The
daughter has now become entitled to claim partition of coparcenary w.e.f.
9-9-2005, which is a vital change brought about by the statute. A
coparcener enjoys the right to seek severance of status. Under
Sections
6(1)
and
6(2)
, the rights of a daughter are pari passu with a son. In the
eventuality of a partition, apart from sons and daughters, the wife of the
coparcener is also entitled to an equal share. The right of the wife of a
coparcener to claim her right in property is in no way taken away.”
(Emphasis supplied)
(B) As noted earlier, under the law pertaining to partition as existing prior to the

Amendment Act, 2005
, if there would be a partition of coparcenary property
between father (F) and sons (S1 and S2) then the wife (W) of father (F) as well as
widowed mother (M) of father (F) would get one share equal share to that of a son
(S1 or S2). This position continues to exist as is evident from the observation made
in the last portion of the above-quoted paragraph 85 of this Court’s decision.

Hence, if there is a partition of coparcenary property between father and sons (and
now also daughters), then wife of father as well as widowed mother of father
would get one share equal share to that of a son (or a daughter).

(C) Under Mitakshara School of Hindu Law, a member of a joint Hindu Family
can bring about his separation in status by a definite, unequivocal and unilateral
declaration of his intention to separate himself from the family and enjoy his share
in severalty. Thus, the institution of a suit for partition by a member of a joint
family is a clear intimation of his intention to separate, and there was
consequential severance of the status of jointness. Question before this Court in

Vineeta Sharma
(supra) was: in case during the pendency of partition suit or
during the period between the passing of preliminary decree and final decree in
the partition suit, any legislative amendment or any subsequent event takes place
which results in enlargement or diminution of the shares of the parties or alteration
of their rights, whether such legislative amendment or subsequent event can be
into consideration and given effect to while passing final decree in the partition
suit. The Court held that even though filing of partition suit brings about severance
of status of jointness, such legislative amendment or subsequent event will have
to be taken into consideration and given effect to in passing the final decree in the
partition suit. This is because, the partition suit can be regarded as fully and
completely decided only when the final decree is passed. It is by a final decree
that partition of property of joint Hindu Family takes place by metes and bounds.
(See: paragraphs 89 to 102, and paragraphs 106, 114, 133 and 136).

The Court observed in para 107 as under:

“107. Once the constitution of coparcenary changes by birth or
death, shares have to be worked out at the time of actual partition. The
shares will have to be determined in changed scenario. The severance of
status cannot come in the way to give effect to statutory provision and
change by subsequent event. The statutory fiction of partition is far short
of actual partition, it does not bring about the disruption of the joint family
or that of coparcenary is a settled proposition of law. For the reasons
mentioned above, we are also of the opinion that mere severance of status
by way of filing a suit does not bring about the partition and till the date
of the final decree, change in law, and changes due to the subsequent event
can be taken into consideration.” (Emphasis supplied)
(D) Prior to the Amendment Act, 2005, partition in joint Hindu Family could be
made by oral partition or oral family settlement/family arrangement. If
subsequently terms of such oral partition or oral family settlement/family
arrangement could be recorded in a Memorandum. Such Memorandum was not
required to be registered. [See: paragraphs 115, 116, 119, 120, 121, 125 and 130
].

74. As noted above, Explanation to substituted
Section 6
provides that for the
purposes of
Section 6
“partition” means (i) any partition made by execution of a deed
of partition duly registered under the
Registration Act, 1908
(16 of 1908), or (ii) any
partition effected by a decree of a court. The Court in further considered the impact of
the aforesaid Explanation on the oral partition or oral family settlement/family
arrangement made prior to 20th December, 2004. The Court opined in para 124 as
under:

“124. The intendment of amended
Section 6
is to ensure that
daughters are not deprived of their rights of obtaining share on becoming
coparcener and claiming a partition of the coparcenary property by
setting up the frivolous defence of oral partition and/or recorded in the
unregistered memorandum of partition. The court has to keep in mind the
possibility that a plea of oral partition may be set up, fraudulently or in
collusion, or based on unregistered memorandum of partition which may
also be created at any point of time. Such a partition is not recognised
under
Section 6(5)
.” (Emphasis supplied)

75. The
Court further held
para 135 as under:

“135. A special definition of partition has been carved out in the
Explanation. The intendment of the provisions is not to jeopardise the
interest of the daughter and to take care of sham or frivolous transaction
set up in defence unjustly to deprive the daughter of her right as
coparcener and prevent nullifying the benefit flowing from the provisions
as substituted. The statutory provisions made in
Section 6(5)
change the
entire complexion as to partition. However, under the law that prevailed
earlier, an oral partition was recognised. In view of change of provisions
of
Section 6
, the intendment of legislature is clear and such a plea of oral
partition is not to be readily accepted. The provisions of
Section 6(5)
are
required to be interpreted to cast a heavy burden of proof upon proponent
of oral partition before it is accepted such as separate occupation of
portions, appropriation of the income, and consequent entry in the
revenue records and invariably to be supported by other
contemporaneous public documents admissible in evidence, may be
accepted most reluctantly while exercising all safeguards. The intendment
of
Section 6
of the Act is only to accept the genuine partitions that might
have taken place under the prevailing law, and are not set up as a false
defence and only oral ipse dixit is to be rejected outrightly. The object of
preventing, setting up of false or frivolous defence to set at naught the
benefit emanating from amended provisions, has to be given full effect.
Otherwise, it would become very easy to deprive the daughter of her rights
as a coparcener. When such a defence is taken, the court has to be very
extremely careful in accepting the same, and only if very cogent,
impeccable, and contemporaneous documentary evidence in shape of
public documents in support are available, such a plea may be
entertained, not otherwise. We reiterate that the plea of an oral partition
or memorandum of partition, unregistered one can be manufactured at
any point in time, without any contemporaneous public document needs
rejection at all costs. We say so for exceptionally good cases where
partition is proved conclusively and we caution the courts that the finding
is not to be based on the preponderance of probabilities in view of
provisions of gender justice and the rigour of very heavy burden of proof
which meet intendment of Explanation to
Section 6(5)
. It has to be
remembered that the courts cannot defeat the object of the beneficial
provisions made by the Amendment Act. The exception is carved out by us
as earlier execution of a registered document for partition was not
necessary, and the court was rarely approached for the sake of family
prestige. It was approached as a last resort when parties were not able to
settle their family dispute amicably. We take note of the fact that even
before 1956, partition in other modes than envisaged under
Section 6(5)

had taken place.” (Emphasis supplied). (Reference: Article titled
‘Changing Dimensions of Hindu Coparcenary and
Section 6
, Hindu
Succession Act, 1956 by Justice Satya Poot Mehrotra, Former Judge
Allahabad High Court.)

76. The reference was ultimately answered in paras 137.1 to 137.5 resply as under:

“137.1. The provisions contained in substituted
Section 6
of the Hindu
Succession Act, 1956 confer status of coparcener on the daughter born
before or after the amendment in the same manner as son with same rights
and liabilities.

137.2. The rights can be claimed by the daughter born earlier with effect
from 9-9-2005 with savings as provided in
Section 6(1)
as to the
disposition or alienation, partition or testamentary disposition which had
taken place before the 20th day of December, 2004.

137.3. Since the right in coparcenary is by birth, it is not necessary that
father coparcener should be living as on 9-9-2005.

137.4. The statutory fiction of partition created by the proviso to
Section
of the Hindu Succession Act, 1956 as originally enacted did not bring
about the actual partition or disruption of coparcenary. The fiction was
only for the purpose of ascertaining share of deceased coparcener when
he was survived by a female heir, of Class I as specified in the Schedule
to the 1956 Act or male relative of such female. The provisions of the
substituted
Section 6
are required to be given full effect. Notwithstanding
that a preliminary decree has been passed, the daughters are to be given
share in coparcenary equal to that of a son in pending proceedings for
final decree or in an appeal.
137.5. In view of the rigour of provisions of the Explanation to
Section
6(5)
of the 1956 Act, a plea of oral partition cannot be accepted as the
statutory recognised mode of partition effected by a deed of partition duly
registered under the provisions of the
Registration Act, 1908
or effected
by a decree of a court. However, in exceptional cases where plea of oral
partition is supported by public documents and partition is finally evinced
in the same manner as if it had been affected (sic effected) by a decree of
a court, it may be accepted. A plea of partition based on oral evidence
alone cannot be accepted and to be rejected outrightly.”

77. The decision of
Vineeta Sharma
(supra) also highlights that a change in law
during the pendency of an appeal must be considered and appropriately applied.

This
Court relied upon
United Bank of India, Calcutta v. Abhijit Tea Company Private
Limited and Others
reported in (2000) 7 SCC 357, wherein, it was held that:

“20. Now, it is well settled that it is the duty of a court, whether it is trying
original proceedings or hearing an appeal, to take notice of the change in
law affecting pending actions and to give effect to the same. (See G.P.
Singh: Interpretation of Statutes, 7th Edn., p. 406.) If, while a suit is
pending, a law like the 1993 Act that the civil court shall not decide the
suit, is passed, the civil court is bound to take judicial notice of the statute
and hold that the suit — even after its remand — cannot be disposed of by
it.”

78. This Court in
Vineeta Sharma
(supra) clarified the entire position as follows:

“107. Once the constitution of coparcenary changes by birth or death,
shares have to be worked out at the time of actual partition. The shares
will have to be determined in changed scenario. The severance of status
cannot come in the way to give effect to statutory provision and change
by subsequent event. The statutory fiction of partition is far short of actual
partition, it does not bring about the disruption of the joint family or that
of coparcenary is a settled proposition of law. For the reasons mentioned
above, we are also of the opinion that mere severance of status by way of
filing a suit does not bring about the partition and till the date of the final
decree, change in law, and changes due to the subsequent event can be
taken into consideration.

Xxx xxx xxx

114. In the instant case, the question is different. What has been
recognised as partition by the legislation under
Section 6
, accordingly,
rights are to be worked out. This Court consistently held in various
decisions mentioned above that when the rights are subsequently
conferred, the preliminary decree can be amended, and the benefit of law
has to be conferred. Hence, we have no hesitation to reject the effect of
statutory fiction of the proviso to
Section 6
as discussed
in
Prakash v. Phulavati
[(2016) 2 SCC 36 : (
2016) 1 SCC (Civ) 549]
and Danamma [Danamma v. Amar
, (2018) 3 SCC 343 : (2018) 2 SCC
(Civ) 385]. If a daughter is alive on the date of enforcement of the
Amendment Act, she becomes a coparcener with effect from the date of
the Amendment Act, irrespective of the date of birth earlier in point of
time.”
APPLICATION OF THE AFORESAID PRINCIPLES OF LAW TO THE
FACTS OF THE PRESENT CASE

79. Let us assume for the moment that the Trial Court would have decreed the suit
in favour of the plaintiff i.e., the daughter giving her 1/3rd share uniformly in all the
properties including the ancestral properties. It could have been argued that the Trial
Court could not have done so, having regard to the position of law, prevailing at the
relevant point of time. However, after the decision of this Court in the case of
Vineeta
Sharma
(supra) such allotment of share would be in accordance with law. Let us also
assume one another alternative. Take for instance, the Trial Court would have decreed
the suit giving (i) 1/3rd share to the daughter in self-acquired property and (ii) giving
1/3rd share in the half were of father's portion of ancestral properties. This was the law
prevailing at the relevant point of time and this is exactly what the Trial Court has done
in the present case, while passing the preliminary decree as affirmed by the High Court.
However, the law has now changed as discussed above.

80. It is in the aforesaid background that daughters are entitled to 1/3rd share in all
the properties as scheduled in the plaint. The same would be in accordance with the
dictum as laid in
Vineeta Sharma
(supra), while passing the final decree. At the cost
of repetition, we state that by virtue of the preliminary decree passed by the Trial Court,
which was confirmed by the Division Bench of the High Court, the issues decided
therein will be deemed to have become final but as the partition suit is required to be
decided in stages, the same can be regarded as fully and completely decided only when
the final decree is passed. As the law governing the parties has been amended before
the conclusion of the final decree proceedings, the party benefitted by such amendment
(like the two daughters in the case on hand) can make a request to the Trial Court to
take cognizance of the Amendment and give effect to the same.

81. We do not find any merit in the submissions canvassed by Mr. Basant, learned
Senior Counsel appearing for the Appellants that in a partition suit, the preliminary
decree cannot be varied in the final decree proceedings, despite the amendment of the
law governing the parties.

82. In our opinion, no error not to speak of any error of law could be said to have
been committed upon Courts below, while determining the shares of the parties. The
only thing that needs to be done now is to give effect to the amendment in the provisions
of
Section 6
of the 1956 Act and redetermine the shares of the parties accordingly. To
put it straight, the Plaintiff is entitled to 1/3 rd share in all the properties of her Late
father. The issue whether all the properties were ancestral as raised on behalf of the
Appellants pale into insignificance.

ISSUE NO. 2

83. We shall now proceed to answer the issue No. 2 whether the High Court was
justified in allowing the cross-appeal filed by the Original Defendant No. 2 on the
ground that the settlement arrived at between the Appellants (Defendant No 1 and
Defendant No. 2) was not valid and binding under
Order XXIII Rule 3 of the CPC
.

84. Mr. Basant, learned Senior Counsel vehemently submitted that the settlement
between the Defendant No. 1 and his sister i.e., the Defendant No. 2 was duly signed
on affidavit way back on 29.03.1991. The said settlement was taken on record by the
High Court on 9.04.1991 i.e., at the time of the final hearing of the first appeal. The
first appeal came to be disposed of on 1.08.2000, modifying the decree to the extent of
incorporating the terms of the compromise agreement between the two Defendants. It
is only after a lapse of ten years that during the pendency of the appeal filed by the
Appellants herein before the Division Bench of the High Court that the Defendant No.
2 thought fit to file cross-appeal, challenging the alleged compromise. Mr. Basant
submitted that such cross-appeal is not maintainable and even if it held to be
maintainable, the same should not have been entertained and allowed after the lapse of
almost ten years from the date of recording of the settlement.

85. We are not much impressed by the aforesaid submissions of Mr. Basant. It is a
settled position of law that right of appeal is the creature of statute. There is no inherent
right of appeal. No appeal can be filed, heard or determined on merits unless the statute
confers right on the appellant and power on the Court to do so. At this stage, we may
look into the provisions of
Order XLI Rule 22 of the CPC
:

“22. Upon hearing respondent may object to decree as if he had
preferred a separate appeal.—(1) Any respondent, though he may not
have appealed from any part of the decree, may not only support the
decree [but may also state that the finding against him in the Court below
in respect of any issue ought to have been in his favour; and may also take
any cross-objection] to the decree which he could have taken by way of
appeal provided he has filed such objection in the Appellate Court within
one month from the date of service on him or his pleader of notice of the
day fixed for hearing the appeal, or within such further time as the
Appellate Court may see fit to allow.

[Explanation.—A respondent aggrieved by a finding of the Court in the
judgment on which the decree appealed against is based may, under this
rule, file cross-objection in respect of the decree in so far as it is based on
that finding, notwithstanding that by reason of the decision of the Court
on any other finding which is sufficient for the decision of the suit, the
decree, is, wholly or in part, in favour of that respondent.]
(2) Form of objection and provisions applicable thereto.—Such cross-

objection shall be in the form of a memorandum, and the provisions of
rule 1, so far as they relate to the form and contents of the memorandum
of appeal, shall apply thereto.

[3***]
(4) Where, in any case in which any respondent has under this rule filed
a memorandum of objection, the original appeal is withdrawn or is
dismissed for default, the objection so filed may nevertheless be heard and
determined after such notice to the other parties as the Court thinks fit.

(5) The provisions relating to appeals by indigent persons shall, so far as
they can be made applicable, apply to an objection under this rule.”

86. The right to prefer cross-objection partakes of the right to prefer an appeal. The
learned counsel appearing for the Defendant No. 2 (Respondent No. 2 herein) that a
cross-appeal under
Order XLI Rule 22 of the CPC
is as effective as a regular first appeal
and the same would sustain, even if, the regular first appeal is dismissed or withdrawn.
A cross-appeal is the exercise of substantive right of appeal and only the procedure
varies. (See:
Urmila Devi and Others v. Branch Manager, National Insurance
Company Limited and Another
, (2020)11 SCC 316, para 16.)

87. Our attention was also drawn to the provisions of Order XLIII of Rule 1-A (2)

of the CPC
. The same reads as under:

“1A. Right to challenge non-appealable orders in appeal against
decrees.—
Xxx xxx xxx
(2) In an appeal against a decree passed in a suit after recording a
compromise or refusing to record a compromise, it shall be open to the
appellant to contest the decree on the ground that the compromise should,
or should not, have been recorded.”

88. We are of the view that the cross-appeal objector is entitled under
Order XLI
Rule 22 of the CPC
read with Order XLIII Rule 1-A (2)
of the CPC
as
referred to above
,
to make good the submission that she was entitled in law to question the legality and
validity of the settlement agreement recorded under
Order XXIII Rule 3 of the CPC
by
way of a cross-appeal.

89.
In the aforesaid context, we may refer to the decision of this Court in the case of

Banwari Lal v. Chando Devi (Smt) and Another
reported in (1993) 1 SCC 581, more
particularly, paras 9 to 13 resply therein:

“9. Section 96(3) of the Code says that no appeal shall lie from a decree
passed by the Court with the consent of the parties. Rule 1-A(2) has been
introduced saying that against a decree passed in a suit after recording a
compromise, it shall be open to the appellant to contest the decree on the
ground that the compromise should not have been recorded. When Section
96(3) bars an appeal against decree passed with the consent of parties, it
implies that such decree is valid and binding on the parties unless set
aside by the procedure prescribed or available to the parties. One such
remedy available was by filing the appeal under Order 43, Rule 1(m). If
the order recording the compromise was set aside, there was no necessity
or occasion to file an appeal against the decree. Similarly a suit used to
be filed for setting aside such decree on the ground that the decree is
based on an invalid and illegal compromise not binding on the plaintiff of
the second suit. But after the amendments which have been introduced,
neither an appeal against the order recording the compromise nor remedy
by way of filing a suit is available in cases covered by Rule 3-A of Order

23. As such a right has been given under Rule 1-A(2) of Order 43 to a
party, who challenges the recording of the compromise, to question the
validity thereof while preferring an appeal against the decree. Section
96(3) of the Code shall not be a bar to such an appeal because Section
96(3) is applicable to cases where the factum of compromise or agreement
is not in dispute.

10. The learned counsel appearing for the respondent took a stand that
the High Court was justified in taking the view that the suit had been
simply withdrawn by the plaintiff-appellant under Rule 1 of Order 23 and
it had not been compromised in terms of Rule 3 of the said Order 23; as
such there was no occasion for the appellant to file an application for
recall of the said order and for restoration of the suit in question for being
heard on merit. From the copy of the petition which was filed on February
27, 1991 it appears that the terms and conditions of settlement and
agreement had been mentioned saying that both parties had entered into
a compromise because of which the plaintiff-appellant had thereafter no
connection with the disputed land and defendant-respondent shall be
deemed to be in possession and the owner of the said disputed land. The
prayer made in the said petition also says that the compromise may be
ordered to be accepted. On basis of that petition, as already mentioned
above, the court passed an order saying that the compromise had been
accepted. In the order it has been mentioned that the suit of the plaintiff
be “dismissed as per compromise deed Ex. C”. In view of the aforesaid
facts and circumstances, it is difficult to hold that by order dated February
27, 1991 the Court allowed the suit to be withdrawn in terms of Rule 1 of
Order 23. The order on face of it purported to dismiss the suit of the
plaintiff on basis of the terms and conditions mentioned in the petition of
compromise. As such, the validity of that order has to be judged treating
it to be an order deemed to have been passed in purported exercise of the
power conferred on the Court by Rule 3 of Order 23 of the Code. The
learned Subordinate Judge should not have accepted the said petition of
compromise even if he had no knowledge of the fraud alleged to have been
practised on the appellant by his counsel, because admittedly the petition
of compromise had not been signed either by the respondent or his
counsel. This fact should have been discovered by the Court.
In the case
of
Gurpreet Singh v. Chatur Bhuj Goel
[(1988) 1 SCC 270 : AIR 1988 SC
400] it has been said: (SCC p. 276, para 10)

“Under Rule 3 as it now stands, when a claim in suit has been adjusted
wholly or in part by any lawful agreement or compromise, the
compromise must be in writing and signed by the parties and there must
be a completed agreement between them. To constitute an adjustment, the
agreement or compromise must itself be capable of being embodied in a
decree. When the parties enter into a compromise during the hearing of a
suit or appeal, there is no reason why the requirement that the
compromise should be reduced in writing in the form of an instrument
signed by the parties should be dispensed with.

The court must therefore
insist upon the parties to reduce the terms into writing.”

The requirement of the petition of compromise being signed by the parties
concerned has been considered also in the case of
Byram Pestonji
Gariwala v. Union Bank of India
[(1992) 1 SCC 31 : AIR 1991 SC 2234]
.

It appears the attention of learned Judges was not drawn to the aforesaid
case of this Court in
Gurpreet Singh v. Chatur Bhuj Goel
[(1988) 1 SCC
270 : AIR 1988 SC 400].

11. The present case depicts as to how on February 27, 1991 the court
recorded the alleged agreement and compromise in a casual manner. It
need not be impressed that Rule 3 of Order 23 does not require just a seal
of approval from the Court to an alleged agreement or compromise said
to have been entered into between the parties. The statute requires the
Court to be first satisfied that the agreement or compromise which has
been entered into between the parties is lawful, before accepting the same.

Court is expected to apply its judicial mind while examining the terms of
the settlement before the suit is disposed of in terms of the agreement
arrived at between the parties. It need not be pointed out that once such a
petition of compromise is accepted, it becomes the order of the Court and
acquires the sanctity of a judicial order.

12. On behalf of the respondent a stand was taken that the learned
Subordinate Judge by his order dated September 20, 1991 could not have
recalled the order dated February 27, 1991 and restored the suit to its
original number. It cannot be disputed that the respondent can support
the order of the High Court setting aside order dated September 20, 1991
on any other reason than the reason given by the High Court.

13. When the amending Act introduced a proviso along with an
explanation to Rule 3 of Order 23 saying that where it is alleged by one
party and denied by the other that an adjustment or satisfaction has been
arrived at, “the Court shall decide the question”, the Court before which
a petition of compromise is filed and which has recorded such
compromise, has to decide the question whether an adjustment or
satisfaction had been arrived at on basis of any lawful agreement. To
make the enquiry in respect of validity of the agreement or the
compromise more comprehensive, the explanation to the proviso says that
an agreement or compromise “which is void or voidable under the
Indian
Contract Act
…” shall not be deemed to be lawful within the meaning of
the said Rule. In view of the proviso read with the explanation, a Court
which had entertained the petition of compromise has to examine whether
the compromise was void or voidable under the
Indian Contract Act
. Even
Rule 1(m) of Order 43 has been deleted under which an appeal was
maintainable against an order recording a compromise. As such a party
challenging a compromise can file a petition under proviso to Rule 3 of
Order 23, or an appeal under Section 96(1) of the Code, in which he can
now question the validity of the compromise in view of Rule 1-A of Order
43 of the Code.” (Emphasis supplied)

90. We may also refer to and rely upon the decision of this Court in the case
Vipan
Aggarwal and Another v. Raman Gandotra and Others
reported in 2022 SCCOnLine
SC 1357 more particularly paras 4 and 5 resply therein:

“4. This Court in a judgment reported in
‘Banwari Lal v. Chando Devi
(Smt.) (Through LRS
.)’ (1993) 1 SCC 581 held the question as to whether
an aggrieved person against the compromise decree has a right to file an
application before the Court which granted the decree or an appeal in
terms of Order 43 Rule 1A of the Civil Procedure Code, 1908 (for short,
‘
the CPC
’). It was held as under:—

“13. When the amending Act introduced a proviso along with an
explanation to Rule 3 of Order 23 saying that where it is alleged by
one party and denied by the other that an adjustment or satisfaction
has been arrived at, “the Court shall decide the question”, the Court
before which a petition of compromise is filed and which has
recorded such compromise, has to decide the question whether an
adjustment or satisfaction had been arrived at on basis of any lawful
agreement. To make the enquiry in respect of validity of the
agreement or the compromise more comprehensive, the explanation
to the proviso says that an agreement or compromise “which is void
or voidable under the
Indian Contract Act
…” shall not be deemed
to be lawful within the meaning of the said Rule. In view of the
proviso read with the explanation, a Court which had entertained
the petition of compromise has to examine whether the compromise
was void or voidable under the
Indian Contract Act
. Even Rule 1(m)
of Order 43 has been deleted under which an appeal was
maintainable against an order recording a compromise. As such a
party challenging a compromise can file a petition under proviso to
Rule 3 of Order 23, or an appeal under Section 96(1) of the Code,
in which he can now question the validity of the compromise in view
of Rule 1-A of Order 43 of the Code.”

5. The appellants had thus the right to avail either the remedy of appeal
in terms of
Order 43 Rule 1A CPC
or by way of an application before the
court granting decree. Therefore, the application filed by the appellants
before the Court which granted the decree cannot be said to be without
jurisdiction.” (Emphasis supplied)

91. Thus, in view of the aforesaid discussion, we hold that the cross-appeal filed by
the Original Defendant No. 2, questioning the legality and validity of the settlement
was maintainable in law.

92. We shall now look into the circumstances, as highlighted by the learned Senior
Counsel appearing for the Defendant No. 2, rendering the settlement agreement dated
28.03.1991 invalid and not binding under
Order XXIII Rule 3 of the CPC
:

“First, the alleged compromise agreement has admittedly not been signed
by the plaintiff who concededly has a share in the property as a
coparcener. A written consent of all parties is necessary.
Secondly, a coparcenary undivided property in specie (Plot No. 140) has
been allotted to Defendant 2 by Defendant No. 1 over which the plaintiff
also has an interest.

Thirdly, there is variance between the agreement and the compromise
petition producing the agreement.

The Variance noted is as follows-

(a) The compromise petition takes in consideration yet another property
already purchased by Defendant No. 2 by her own income (Schedule B
property) which was not a part of compromise agreement.

(b) The sketch map appended to the petition shows plot no. 1086 and 1085
which for part of plot No. 141 instead of plot no. 140 mentioned in clause
3 of compromise agreement, and does not indicate any consensus ad idem,
therefore, the execution of the compromise agreement becomes
unenforceable.
(c) The species of suit property, which was given/provided to Defendant
no.2 in clause 3 (page 141) of agreement was changed to will be allotted
to her in final decree proceeding.

(d) The payment of Rs. 12000 which was to be deposited to court without
any caveat in agreement (See para 4 @ 141) was made subject to further
orders of the Court in the petition.

(e) There is no express mentioning about the mesne profits in agreement
whereas a definite clause was inserted in the compromise petition.

(f) The easement rights to property of Defendant No. 2 were recognised
in agreement and later in petition was altered to that Defendant No. 2
along with others have to file and take steps to easement rights for which
the Defendant 1 shall not object.

(h) The agreement provided that the defendant no. 2 shall sign the
compromise petition which was later altered to signing and swearing the
affidavit in compromise petition.

Fourthly, the judgment dated 01.08.2000 of the first appellate court
accepting the compromise does not make allotment of the property
allotted in specie to the Defendant No. 2. The first appellate court has
proceeded on the wrong premise that the Defendant No. 2 has
surrendered her rights to the Defendant No. 1. The first appellate court
was further wrong in specifically noting that the compromise agreement
does not cause any prejudice to the rights of the plaintiff and therefore
can be given effect.

Fifthly, the compromise agreement was entered into by beckoning a
smaller share to the Defendant No. 2, while she has a larger share in view
of
Vineeta Sharma
(supra). The consideration for the alleged
compromise/settlement was therefore inadequate and whole agreement
has to fall to the ground due to changed and supervening circumstances
effectuated by change in law.

Lastly, even otherwise, the allotment of a co-ownership property in a
specie to one coparcener cannot be modified in a preliminary decree.
Moreover, under Hindu Law, the gift/renunciation/relinquishment or
alienation by one coparcener of his undivided coparcenary interest to
another coparcener without consent of other coparceners is void.”

93. It is now well settled that under
Order XXIII Rule 3 of the CPC
as it now stands,
when a claim in suit has been adjusted wholly or in part by any lawful agreement or
compromise, the compromise must be in writing and signed by the parties and there
must be a completed agreement between them. To constitute an adjustment, the
agreement or compromise must itself be capable of being embodied in a decree. (See:

Gurpreet Singh v. Chatur Bhuj Goel
, (1988) 1 SCC 270.)

94. Indisputably, in the case on hand, the plaintiff has not put her signature on the
deed of settlement, which was produced before the High Court in first appeal. The
Plaintiff has made herself very clear that she never joined in the settlement between her
brother i.e., the Defendant No. 1 and her sister i.e., the Defendant No. 2. On this ground
alone, the settlement could be said to be unlawful, being without any written consent
of all the parties. In a suit for partition of joint property, a decree by consent amongst
some only of the parties cannot be maintained.

95.
In
Nityamoni Dasi v. Gokul Chandra Sen
reported in (1911) 9 Ind Cas 210
(Cal), the Calcutta High Court observed:

“… The decree of the Subordinate Judge must be set aside and the whole
case retried, because as this is a suit for partition of joint property, a
decree by consent amongst some only of the parties cannot possibly be
maintained…..”

96. In Vir Singh and Others v. Kharak Singh and Others reported in AIR 1925 Lah
280, all the proprietors had not assented to the compromise, Moti Sagar, J. observed:—

“…the alleged compromise not having been assented to by all the
proprietors was clearly contrary to law and the Court was, therefore, fully
justified in refusing to enforce it. …”

97.
In
Taraprasanna Sarkar and Another v. Kalikamohan Sarkar and Others

reported in AIR 1924 Cal 80 Mookerjee and Rankin, JJ., held:—

“…There can be no compromise binding upon, all the parties to a
partition suit until and unless all the parties have joined in the
compromise:…”

98. In the aforesaid context, we shall also now look into the findings recorded by the
Division Bench of the High Court while allowing the cross-appeal filed by the
Defendant No. 2. We quote the relevant observations as under:

“The appeal was filed by defendant no. 1 before this Court. In this Appeal
challenging the correctness of the decision of the learned Single Judge in
F.A. No. 359/96 on the basis of the compromise petition dated 28.3.1991,
which is flied and accepted by him is not signed by defendant no.2 and the
same is signed by her advocate and not signed by the plaintiff and her
counsel. Therefore, it is urged that the same is not legal compromise as
provided under Order 23, Rule 3,
CPC
and on behalf of defendant no.2 her
advocate could not have signed the compromise petition as she has not
executed special 'vakalatnama' giving the authorization in favour of her
lawyer to compromise the matter between defendant no.1 and 2 In the First
Appeal. Therefore, First Appellate Judge should not have received the
compromise petition and accepted the same. The acceptance of the
compromise petition by the learned Single Judge should have entered
between the parties including the plaintiff.
In support of the said legal
contention, reliance is placed by the learned counsel on behalf of defendant
no.2 on the decisions of the apex Court in
Ramasrey & Puspa Devi
(supra).
The compromise petition is in variance to the schedule properties of the suit
and, therefore, it is voidable. The compromise was neither recorded by the
first appellate court at the time-of filing compromise petition in writing, nor
the parties were present in the court nor signed the petition in court.
Therefore, the alleged compromise cannot be termed as compromise
between the parties in relation to the subject matter covered therein as the
same is illegal for the reason that it is opposed to Order 23, Rule 3,
CPC
.
Hence the learned Single Judge could not have accepted the same.

In support
of this contention, learned Single Judge had rightly
placed reliance upon
the
decisions of the Hon'ble Supreme Court In the case of
Gurpreet Singh v.
Chatur Bhuj Goel
, AIR 1988 SC 400; and of this Court in the case of
Sanyasi
Jena and others v. Mina Jena and others
, AIR 1984 Orissa 213.

Further the
reliance placed by the learned counsel for the defendant no.1 upon the
judgment of
Puspa Devi
(supra) is distinguished by defendant no.2 counsel
stating that compromise petition is being typed in English. Further the same
is not signed by defendantno.2. Defendant no.1 with a view to deprive
allotment of share assigned in favour of defendant no.2 by the trial court in
respect of the suit schedule properties in the absence of signing the
compromise petition by defendant no.2 and there is no special 'vakalatnama'
executed in favour of her lawyer, the said compromise petition is unlawful
and the same could not have been accepted by the first appellate court In the
Impugned judgment and modified the trial court judgment. Therefore, the
cross-objection/appeal filed by defendant no.2 has to be allowed by setting
aside the compromise recorded by the first appellate court In the Impugned
judgment by modifying trial court judgment in relation to the share of the
defendant no.2 allotted in respect of the suit schedule properties. Having set
aside the said compromise, as recorded in the impugned judgment of the
First Appellate Court, the trial court judgment is restored with regard to the
share assigned by him in favour in of defendant no.2 In respect of suit
schedule properties. Accordingly the cross-objection of the second
defendant is allowed by answering the aforesaid point no.(iii) in her favour.”
(Emphasis supplied)

99. We are in complete agreement with the aforesaid findings recorded by the High
Court in its impugned judgment and order while allowing the cross-appeal.

100. The third question that arises for our consideration in context with the legality
and validity of the settlement is whether the learned advocate appearing for the cross-
objector i.e., Defendant No. 2 could have signed the compromise petition without an
express consent. It is an imperative duty of the Court to ascertain the genuineness and
lawfulness of the compromise deed. Indisputably, in the case on hand, the First
Appellate Court had neither recorded the statements of the parties in the Court nor had
made any inquiry into the terms of the settlement. It is in such circumstances that the
High Court in its impugned order has observed that the Compromise Petition was
signed by the advocate without any express authority or without special vakalatnama
executed in favour of the advocate. In fact, the authority was expressly curtailed in the
compromise deed.

101.
In the aforesaid context, we may refer to the decision of this Court in the case of

Himalayan Cooperative Group Housing Society v. Balwan Singh and Others

reported in (2015) 7 SCC 373, more particularly, paras 22 to 33, which read thus:

“22. Apart from the above, in our view lawyers are perceived to be their
client's agents. The law of agency may not strictly apply to the client-
lawyer's relationship as lawyers or agents, lawyers have certain authority
and certain duties. Because lawyers are also fiduciaries, their duties will
sometimes be more demanding than those imposed on other agents. The
authority-agency status affords the lawyers to act for the client on the
subject-matter of the retainer. One of the most basic principles of the
lawyer-client relationship is that lawyers owe fiduciary duties to their
clients. As part of those duties, lawyers assume all the traditional duties
that agents owe to their principals and, thus, have to respect the client's
autonomy to make decisions at a minimum, as to the objectives of the
representation. Thus, according to generally accepted notions of
professional responsibility, lawyers should follow the client's instructions
rather than substitute their judgment for that of the client. The law is now
well settled that a lawyer must be specifically authorised to settle and
compromise a claim, that merely on the basis of his employment he has
no implied or ostensible authority to bind his client to a
compromise/settlement. To put it alternatively that a lawyer by virtue of
retention, has the authority to choose the means for achieving the client's
legal goal, while the client has the right to decide on what the goal will
be. If the decision in question falls within those that clearly belong to the
client, the lawyer's conduct in failing to consult the client or in making the
decision for the client, is more likely to constitute ineffective assistance of
counsel.

23. The Bar Council of India Rules, 1975 (for short “the BCI Rules”), in
Part VI Chapter II provide for the “Standards of Professional Conduct
and Etiquette” to be observed by all the advocates under the
Advocates
Act, 1961
(for short “the 1961 Act”). In the Preamble to Chapter II, the
BCI Rules provide as follows:

“An advocate shall, at all times, comport himself in a manner
befitting his status as an officer of the Court, a privileged member of
the community, and a gentleman, bearing in mind that what may be
lawful and moral for a person who is not a member of the Bar, or for
a member of the Bar in his non-professional capacity may still be
improper for an advocate. Without prejudice to the generality of the
foregoing obligation, an advocate shall fearlessly uphold the
interests of his client and in his conduct conform to the rules
hereinafter mentioned both in letter and in spirit. The rules
hereinafter mentioned contain canons of conduct and etiquette
adopted as general guides; yet the specific mention thereof shall not
be construed as a denial of the existence of others equally imperative
though not specifically mentioned.”

24. The Preamble makes it imperative that an advocate has to conduct
himself and his duties in an extremely responsible manner. They must bear
in mind that what may be appropriate and lawful for a person who is not
a member of the Bar, or for a member of the Bar in his non-professional
capacity, may be improper for an advocate in his professional capacity.

25. Section II of the said Chapter II provides for duties of an advocate
towards his client. Rules 15 and 19 of the BCI Rules, have relevance to
the subject-matter and therefore, they are extracted below:
“15. It shall be the duty of an advocate fearlessly to uphold the
interests of his client by all fair and honourable means without
regard to any unpleasant consequences to himself or any other. He
shall defend a person accused of a crime regardless of his personal
opinion as to the guilt of the accused, bearing in mind that his loyalty
is to the law which requires that no man should be convicted without
adequate evidence.

***

19. An advocate shall not act on the instructions of any person other
than his client or his authorised agent.”

26. While Rule 15 mandates that the advocate must uphold the interest of
his clients by fair and honourable means without regard to any unpleasant
consequences to himself or any other. Rule 19 prescribes that an advocate
shall only act on the instructions of his client or his authorised agent.

Further, the BCI Rules in Chapter I of the said Section II provide that the
Senior Advocates in the matter of their practice of the profession of law
mentioned in
Section 30
of the 1961 Act would be subject to certain
restrictions. One of such restrictions contained in clause (cc) reads as
under:

“(cc) A Senior Advocate shall, however, be free to make concessions
or give undertaking in the course of arguments on behalf of his
clients on instructions from the junior advocate.”

27. Further, the “Code of Ethics” prescribed by the Bar Council of India,
in recognition of the evolution in professional and ethical standards within
the legal community, provides for certain rules which contain canons of
conduct and etiquette which ought to serve as general guide to the practice
and profession. Chapter III of the said Code provides for an “Advocate's
duty to the client”. Rule 26 thereunder mandates that an “advocate shall
not make any compromise or concession without the proper and specific
instructions of his/her client”. It is pertinent to notice that an advocate
under the Code expressly includes a group of advocates and a law firm
whose partner or associate acts for the client.

28. Therefore, the BCI Rules make it necessary that despite the specific
legal stream of practice, seniority at the Bar or designation of an advocate
as a Senior Advocate, the ethical duty and the professional standards
insofar as making concessions before the Court remain the same. It is
expected of the lawyers to obtain necessary instructions from the clients
or the authorised agent before making any concession/statement before
the court for and on behalf of the client.
29. While the BCI Rules and the Act, do not draw any exception to the
necessity of an advocate obtaining instructions before making any
concession on behalf of the client before the court, this Court in
Periyar
& Pareekanni Rubber Ltd. v. State of Kerala
[(1991) 4 SCC 195] has
noticed the sui generis status and the position of responsibility enjoyed by
the Advocate General in regard to the statements made by him before the
courts. The said observation is as under: (SCC p. 209, para 19)
“19. … Any concession made by the Government Pleader in the trial court
cannot bind the Government as it is obviously, always, unsafe to rely on
the wrong or erroneous or wanton concession made by the counsel
appearing for the State unless it is in writing on instructions from the
responsible officer. Otherwise it would place undue and needless heavy
burden on the public exchequer.

But the same yardstick cannot be applied
when the Advocate General has made a statement across the Bar since the
Advocate General makes the statement with all responsibility.”
(See:
Joginder Singh Wasu v. State of Punjab
[(1994) 1 SCC 184] .)

30. The Privy Council in
Sourendra Nath Mitra v. Tarubala Dasi
[(1929-

30) 57 IA 133 : (1930) 31 LW 803 : AIR 1930 PC 158] , has made the
following two observations which hold relevance to the present
discussion: (IA pp. 140-41)
“Two observations may be added. First, the implied authority of counsel
is not an appendage of office, a dignity added by the courts to the status
of barrister or advocate at law. It is implied in the interests of the client,
to give the fullest beneficial effect to his employment of the advocate.
Secondly, the implied authority can always be countermanded by the
express directions of the client. No advocate has actual authority to settle
a case against the express instructions of his client. If he considers such
express instructions contrary to the interests of his client, his remedy is to
return his brief.”
(See:
Jamilabai Abdul Kadar v. Shankarlal Gulabchand
[(
1975) 2 SCC
609] and Svenska Handelsbanken v. Indian Charge Chrome Ltd.
[(1994)
2 SCC 155] )

31. Therefore, it is the solemn duty of an advocate not to transgress the
authority conferred on him by the client. It is always better to seek
appropriate instructions from the client or his authorised agent before
making any concession which may, directly or remotely, affect the rightful
legal right of the client. The advocate represents the client before the court
and conducts proceedings on behalf of the client. He is the only link
between the court and the client. Therefore his responsibility is onerous.
He is expected to follow the instructions of his client rather than substitute
his judgment.
32. Generally, admissions of fact made by a counsel are binding upon
their principals as long as they are unequivocal; where, however, doubt
exists as to a purported admission, the court should be wary to accept such
admissions until and unless the counsel or the advocate is authorised by
his principal to make such admissions. Furthermore, a client is not bound
by a statement or admission which he or his lawyer was not authorised to
make. A lawyer generally has no implied or apparent authority to make
an admission or statement which would directly surrender or conclude the
substantial legal rights of the client unless such an admission or statement
is clearly a proper step in accomplishing the purpose for which the lawyer
was employed. We hasten to add neither the client nor the court is bound
by the lawyer's statements or admissions as to matters of law or legal
conclusions. Thus, according to generally accepted notions of
professional responsibility, lawyers should follow the client's instructions
rather than substitute their judgment for that of the client. We may add
that in some cases, lawyers can make decisions without consulting the
client. While in others, the decision is reserved for the client. It is often
said that the lawyer can make decisions as to tactics without consulting
the client, while the client has a right to make decisions that can affect his
rights.

33. We do not intend to prolong this discussion. We may conclude by
noticing a famous statement of Lord Brougham:

“an advocate, in the discharge of his duty knows but one person in
the world and that person is his client”. [Ed.: The statement was
made by Mr Henry Brougham, as His Lordship then was, while
defending Queen Caroline in the House of Lords. See The Whole
Proceedings on The Trial of Her Majesty, Caroline Amelia
Elizabeth, Queen of England, for “Adulterous Intercourse” with
Bartolomeo Bergami, Vol. II, p. 2 containing Her Majesty's Defence,
printed and published by John Fairburn, Broadway, Ludgate Hill
(1820).]”
(Emphasis supplied)

102. We also refer to the decision of this Court in the case of
Byram Pestonji
Gariwala
(supra), more particularly, the observations made in para 37, which read thus:

“37. We may, however, hasten to add that it will be prudent for counsel
not to act on implied authority except when warranted by the exigency of
circumstances demanding immediate adjustment of suit by agreement or
compromise and the signature of the party cannot be obtained without
undue delay. In these days of easier and quicker communication, such
contingency may seldom arise. A wise and careful counsel will no doubt
arm himself in advance with the necessary authority expressed in writing
to meet all such contingencies in order that neither his authority nor
integrity is ever doubted. This essential precaution will safeguard the
personal reputation of counsel as well as uphold the prestige and dignity
of the legal profession.” (Emphasis supplied)

103. Almost six decades back, the Madras High Court speaking through Justice
Ramaswami (as His Lordship then was) in the case of
Govindammal v. Marimuthu
Maistry and Others
reported in AIR 1959 Mad 7 had sounded the note of caution
observing as under:

“5. … The decisions appear to be fairly clear that even in cases where
there is no express authorization to enter into a compromise, under the
inherent authority impliedly given to the Vakil he has power to enter into
the compromise on behalf of his client. But in the present state of the
clientele world and the position in which the Bar now finds itself and in
the face of divided judicial authority and absence of statutory backing
prudence dictates that unless express power is given in the vakalatnama
itself to enter into compromise, in accordance with the general practice
obtaining a special vakalatnama should be filed or the specific consent of
the party to enter into the compromise should be obtained. If an
endorsement is made on the plaint etc., it would be better to get the
signature or the thumb impression of the party affixed thereto, making it
evident that the party is aware of what is being done by the Vakil on his
or her behalf.”

104. Thus, in view of the aforesaid discussion, we hold that the High Court committed
no error in holding that the settlement between the Defendant Nos. 1 and 2 resply was
unlawful.

OUR FINAL CONCLUSIONS

105. We may draw our final conclusions as under:

(i) The preliminary decree drawn by the Trial Court as affirmed by the High
Court is modified to the extent that the daughters are entitled to 1/3rd share
in all the properties scheduled in the plaint i.e., ancestral and self-acquired
properties of Late Shri Kumar Sahoo. The Trial Court shall modify the
decree accordingly.

(ii) As we have held that the settlement between the Original Defendant Nos.

1 and 2 resply was not in accordance with law, the Appellants herein will
not be entitled to the share of the Original Defendant No. 2.

(iii) The Appellants shall be entitled to only their 1/3rd share in the suit
properties.

(iv) Since the Defendant No. 1 was appointed as receiver, the Appellants shall
now furnish accounts before the Trial Court.

106. With the aforesaid clarifications, both the Appeals fail and are hereby dismissed.

107. This litigation by now is almost four decades old. The Original Plaintiff as on
date is almost 85 years of age. In such circumstances, the Trial Court shall draw the
final decree within a period of three months from the date of receipt of the certified
copy of this judgment and order.

108. Parties to bear their own costs.

109. Pending applications, if any, also stand disposed of.

………………………………………..J.
(A.S. BOPANNA)

………………………………………..J.
(J.B. PARDIWALA)
NEW DELHI;

MARCH 29, 2023.