PRASANTA KUMAR SAHOO & ORS. versus CHARULATA SAHU & ORS.

[2023] 5 S.C.R.

PRASANTA KUMAR SAHOO & ORS.

CHARULATA SAHU & ORS.

(Civil Appeal No. 2913-2915 of 2018)

BMARCH 29, 2023

[A. S. BOPANNA AND J. B. PARDIWALA, JJ.]

Hindu Succession Act, 1956– Amendment in law governingthe parties – Partition suit – s.6, 1956 Act was amended by 2005Amendment, before the conclusion of the final decree proceedingsC– Effect of – Held: Partition suit is required to be decided in stagesand the same can be regarded as fully and completely decided onlywhen the final decree is passed – Thus, as the law governing theparties was amended before the conclusion of the final decreeproceedings, the party benefitted by such amendment (like the twoDdaughters in the present case) can make request to the Trial Courtto take cognizance of the Amendment and give effect to the same –Plaintiff entitled to 1/3[rd] share in all the properties of her late fatherscheduled in the plaint – Preliminary decree drawn by the TrialCourt as affirmed by the High Court modified to the said extent –Hindu Succession (Amendment) Act, 2005.E

Hindu Succession Act, 1956 – s.6 as amended by 2005Amendment – Interpretation of, in Vineeta Sharma case – Positionof law pre and post the amendment – Discussed – Hindu Succession(Amendment) Act, 2005.

FCode of Civil procedure, 1908 – O.XXIII, r.3; Or.XLI, r.22,o.XLIII, r.1-A (2) – Cross Appeal – Maintainability of – Held: Rightof appeal is the creature of statute – The right to prefer cross-objection partakes of the right to prefer an appeal – cross-appealis the exercise of substantive right of appeal and only the procedurevaries – Cross-appeal objector is entitled u/o.XLI, r.22 r/w O.XLIII,Gr.1-A (2) to make good the submission that she was entitled in law toquestion the legality and validity of the settlement agreementrecorded u/ O.XXIII, r.3 by way of cross-appeal – Thus, in thepresent case, the cross-appeal filed by the Original Defendant No.2,

questioning the legality and validity of the settlement wasmaintainable in law.

Code of Civil Procedure, 1908 – Or.XXIII, r.3 – SettlementAgreement without written consent of all the parties – Validity of –Held: Under Or.XXIII, r.3, when claim in suit has been adjustedwholly or in part by any lawful agreement or compromise, thecompromise must be in writing and signed by the parties and theremust be completed agreement between them – In the present case,the plaintiff did not put her signature on the deed of settlement,which was produced before the High Court in first appeal – Thus, itwas unlawful, being without written consent of all the parties – In asuit for partition of joint property, decree by consent amongstonly some of the parties cannot be maintained – Hence, settlementbetween the Defendant no.1 and 2 was not in accordance with law.

Practice and Procedure – Compromise petition signed byadvocate without express consent – Duty of Court – Discussed.

Dismissing the appeals, the Court

HELD: 1. three-Judge Bench of this Court doubted thecorrectness of the dictum as laid in Prakash as there was anapparent conflict between the dictum as laid in Prakash andDanamma. The question concerning the interpretation of Section6 of Act 1956 was referred to larger Bench. The larger Benchultimately settled the position of law in Vineeta Sharma. Daughtersare entitled to 1/3rd share in all the properties as scheduled inthe plaint. The same would be in accordance with the dictum aslaid in Vineeta Sharma, while passing the final decree. By virtueof the preliminary decree passed by the Trial Court, which wasconfirmed by the Division Bench of the High Court, the issuesdecided therein will be deemed to have become final but as thepartition suit is required to be decided in stages, the same canbe regarded as fully and completely decided only when the finaldecree is passed. As the law governing the parties has beenamended before the conclusion of the final decree proceedings,the party benefitted by such amendment (like the two daughtersin the case on hand) can make request to the Trial Court totake cognizance of the Amendment and give effect to the same.No error not to speak of any error of law could be said to have

Abeen committed upon Courts below, while determining the sharesof the parties. The only thing that needs to be done now is togive effect to the amendment in the provisions of Section 6 of the1956 Act and redetermine the shares of the parties accordingly.The Plaintiff is entitled to 1/3rd share in all the properties of herLate father. The issue whether all the properties were ancestralBas raised on behalf of the Appellants pale into insignificance.[Paras 63, 64, 80 and 82][56-A-B; 67-B-D, F]

Vineeta Sharma v. Rakesh Sharma and Others (2020) 9SCC 1 : [2020] 10 SCR 135 – relied on.

CPrakash and Others v. Phulavati and Others (2016) 2SCC 36 : [2015] 12 SCR 579; Danamma alias SumanSurpur and Another v. Amar and Others (2018) 3 SCC343 : [2018] 2 SCR 553 – referred to.

2.1 Whether the High Court was justified in allowing theDcross-appeal filed by the Original Defendant No. 2 on the groundthat the settlement arrived at between the Appellants (DefendantNo 1 and Defendant No. 2) was not valid and binding under OrderXXIII Rule 3 of the CPC.

Right of appeal is the creature of statute. There is noEinherent right of appeal. No appeal can be filed, heard ordetermined on merits unless the statute confers right on theappellant and power on the Court to do so. The right to prefercross-objection partakes of the right to prefer an appeal. Thelearned counsel appearing for the Defendant No. 2 (RespondentNo. 2 herein) that cross-appeal under Order XLI Rule 22 of theFCPC is as effective as regular first appeal and the same wouldsustain, even if, the regular first appeal is dismissed or withdrawn.A cross-appeal is the exercise of substantive right of appeal andonly the procedure varies. The cross-appeal objector is entitledunder Order XLI Rule 22 of the CPC read with Order XLIIIGRule 1-A (2) of the CPC, to make good the submission that shewas entitled in law to question the legality and validity of thesettlement agreement recorded under Order XXIII Rule 3 ofthe CPC by way of cross-appeal. The cross-appeal filed by the

Original Defendant No. 2, questioning the legality and validity ofthe settlement was maintainable in law. [Paras 83, 85, 86, 88,91][67-G-H; 68-D; 69-E; 70-A-B; 74-F]

Urmila Devi and Others v. Branch Manager, NationalInsurance Company Limited and Another (2020) 11SCC 316 : [2020] 3 SCR 498; Banwari Lal v. ChandoDevi (Smt) and Another (1993) 1 SCC 581 : [1992] 3Suppl. SCR 524; Vipan Aggarwal and Another v. RamanGandotra and Others 2022 SCCOnLine SC 1357 –relied on.

2.2 Under Order XXIII Rule 3 of the CPC as it now stands,when claim in suit has been adjusted wholly or in part by anylawful agreement or compromise, the compromise must be inwriting and signed by the parties and there must be completedagreement between them. Indisputably, in the case on hand, theplaintiff has not put her signature on the deed of settlement, whichwas produced before the High Court in first appeal. The Plaintiffhas made herself very clear that she never joined in thesettlement between her brother i.e., the Defendant No. 1 andher sister i.e., the Defendant No. 2. On this ground alone, thesettlement could be said to be unlawful, being without any writtenconsent of all the parties. In suit for partition of joint property,a decree by consent amongst some only of the parties cannot bemaintained. [Paras 93, 94][76-E-G]

Gurpreet Singh v. Chatur Bhuj Goel (1988) 1 SCC 270: [1988] 2 SCR 401 – relied on.

3. The third question that arises for consideration in contextwith the legality and validity of the settlement is whether thelearned advocate appearing for the cross-objector i.e., DefendantNo. 2 could have signed the compromise petition without anexpress consent. It is an imperative duty of the Court to ascertainthe genuineness and lawfulness of the compromise deed.Indisputably, in the case on hand, the First Appellate Court hadneither recorded the statements of the parties in the Court norhad made any inquiry into the terms of the settlement. It is insuch circumstances that the High Court in its impugned order

24SUPREME COURT REPORTS

Ahas observed that the Compromise Petition was signed by theadvocate without any express authority or without specialvakalatnama executed in favour of the advocate. In fact, theauthority was expressly curtailed in the compromise deed. TheHigh Court committed no error in holding that the settlementbetween the Defendant Nos. 1 and 2 was unlawful. [Paras 100,B104][79-C-D; 85-G]

4. The preliminary decree drawn by the Trial Court asaffirmed by the High Court is modified to the extent that thedaughters are entitled to 1/3rd share in all the propertiesscheduled in the plaint i.e., ancestral and self-acquired propertiesCof Late Shri Kumar Sahoo. The Trial Court shall modifythe decree accordingly. The settlement between the OriginalDefendant Nos.1 and 2 was not in accordance with law, theAppellants herein will not be entitled to the share of the OriginalDefendant No. 2. Appellants shall be entitled to only their 1/3rdDshare in the suit properties. [Para 105][85-H; 86-A-C]

Himalayan Cooperative Group Housing Society v.Balwan Singh and Others (2015) 7 SCC 373 : [2015] 4SCR 616 – relied on.

Bai Chanchal and Others v. Syed Jalaluddin and OthersE(1970) 3 SCC 124 : [1971] 2 SCR 171; Byram PestonjiGariwala v. Union Bank of India and Others (1992) 1SCC 31 : [1991] 1 Suppl. SCR 187; D.S. Lakshmaiahand Another v. L. Balasubramanyam and Another(2003) 10 SCC 310 : [2003] 3 Suppl. SCR 13;FJineshwardas (Dead) by LRs. and Others v. Jagrani(Smt) and Another (2003) 11 SCC 372 : [2003] 4 Suppl.SCR 179; Pushpa Devi Bhagat (Dead) through LR.Sadhna Rai (Smt) v. Rajinder Singh and Others (2006)5 SCC 566 : [2006] 3 Suppl. SCR 370; GanduriKoteshwaramma and Another v. Chakiri Yanadi andGAnother (2011) 9 SCC 788 : [2011] 12 SCR 968;Badrinarayan Shankar Bhandari and Others v.Omprakash Shankar Bhandari AIR 2014 Bom 151(FB); United Bank of India, Calcutta v. Abhijit Tea

Company Private Limited and Others (2000) 7 SCC 357: [2000] 3 Suppl. SCR 153 – referred to.

Nityamoni Dasi v. Gokul Chandra Sen (1911) 9 IndCas 210 (Cal); Vir Singh and Others v. Kharak Singhand Others AIR 1925 Lah 280; Taraprasanna Sarkarand Another v. Kalikamohan Sarkar and Others AIR1924 Cal 80; Govindammal v. Marimuthu Maistry andOthers AIR 1959 Mad 7 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2913-2915 of 2018.

From the Judgment and Order dated 05.05.2011 of the High Courtof Orissa at Cuttack in AHO No. 133 of 2000 and MC No. 24 of 2007.

R. Basant, Sr. Adv., Ashok Panigrahi, Ms. Geetanjali DasKrishnan, R. Chanrdachud, Ms. Nikita Jaydevan, Nabab Singh, D.Venkatakrishna, Advs. for the Appellants.

AV. Chitambaresh, Sr. Adv., Mrs. B. Sunita Rao, Gunmaya Mann,Shibashish Misra, Anurag, Sonal Gupta, C. Govind Venugopal, Advs. forthe Respondents.

The Judgment of the Court was delivered by

J. B. PARDIWALA, J.B

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

2. Both the captioned appeals are at the instance of the legalrepresentatives and heirs of the original defendant No. 1 (Late ShriPrafulla Sahoo S/o Kumar Sahoo) and are directed against the judgment,order and decree passed by Division Bench of the High Court ofOrissa at Cuttack dated 5.05.2011 in AHO No. 133 of 2000 by whichDthe Division Bench of the High Court dismissed the Letters Patent Appealfiled by the appellants herein thereby affirming the judgment and decreeof partition passed by the Trial Court in the Title Suit No. 348 of 1980instituted by the original plaintiff (Respondent No. 1 herein) and on theother hand allowed the cross-objections filed by the Original DefendantENo. 2, thereby setting aside and declaring the compromise recorded bythe First Appellate Court entered into between the Late Prafulla Sahooand 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 ofFone Kumar Sahoo, between the appellants who are the legalrepresentatives and heirs of the Defendant No. 1 (Late Mr. PrafullaSahoo S/o of Kumar Sahoo), the Respondent No. 1 herein i.e., the Plaintiff(Mrs. Charulata Sahoo daughter of Kumar Sahoo) and the RespondentNo. 2 who are the legal representatives and heirs of the Defendant No.2 (Mrs. Santilata D/o Kumar Sahoo)G

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

5. It appears from the materials on record that sometime in 1940upon partition Late Shri Kumar Sahoo i.e., the father of the Plaintiff,Defendant No. 1 and Defendant No. 2 resply as co-parcener receivedthe 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 suit for partition being the T.S. No. 348 of 1980, claiming 1/3[rd]share in the properties ‘A’ to ‘F’ as scheduled in the plaint.

7. The Respondent No. 1 (herein Original Plaintiff) prayed forthe following reliefs in the title suit No. 348 of 1980 referred to above:

“(i) Let preliminary decree be passed for partition in respectof the plaintiff’s 1/3[rd] share in schedule ‘A’ to ‘F’ and theplaintiff be put in specific possession of the same on separateallotment being curved out in final decree proceeding byappointment of Civil Court Survey knowing commissioner anda decree for mesne profit be passed against Defendant No. 1from 1977 till the date of the suit and from the date of suit tillthe decree is made final and the share of Defendant No. 1 inthe suit properties be charged for payment of the same.

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

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

(iv) Let decree be passed for such other relief that theplaintiff is ultimately found entitled in his favour against theDefendants.

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 AreaAc. 0.465 dec. Khata No. 32, Plot No. 1088.

(A.V. Rs. 1,03,930/-)

SCHEDULE- ‘B’

Mouza- Paisa (Hal - Gandarpur)

Ac. 2.90-½ dec.

(.A.V. RS. 2850/-)

SCHEDULE -’C’

District- Cuttack. S.R. Cuttack, Mouza- Rajahans,

SCHEDULE -’D’

Mouza- Safipur, P.S. Sadar, Cuttack,

Ac. 3.06 decB

Valuation Rs. 595/-

SCHEDULE -’F’

Mouza- Nagagajpur, P.S. Sadar, S.R. Cuttack, Dist- Cuttack.Khata No. 61.

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 familyof Defendant No. 1 in view of introduction of Urban LandCeiling & Regulation Act, 1976, and can the plaintiff maintaina suit for partition of the suit property?

A(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?B

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

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

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

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

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

E(11) To what relief the parties are entitled?

The trial court decreed the suit and observed that the plaintiffhad one-sixth share in the ancestral property and one-thirdshare in the separate property. The said decree is beingchallenged by Defendant No. 1.”F

9. The suit between the parties was adjudicated and vide thejudgment and order dated 30.12.1986 the Civil Judge drew preliminarydecree as under:

“ORDER

GThe suit is decreed preliminarily on contest against defendantNo: 1 with costs an D-2 without cost. Plaintiff is entitled to 2annas 8 pies (1/6[th]) share and 1/3[rd] share in respect ofancestral and self acquired properties and super structuresthereon (Houses and buildings) respectively of Late KumarCharan Sahu out of the suit properties. She is also entitled toH

the same share in respect of mense profits thereof, from thedate of institution of the suit. Defendant No-2 is also entitledto same share of properties and mense profits. Defendant No:1 is entitled to 10 annas 8 pies (2/3[rd]) and 1/3[rd] share inancestral and self acquired properties respectively andsuperstructure thereon of Late Kumar Charan Sahu and menseprofits thereof. An Amin Commissioner is to be deputed foreffecting partition on the above basis who is the final decreeproceeding will apportion shares on above basis afterascertaining the details of ancestral and self acquiredproperties an superstructures thereon and also the quantumof mense profits in the light of indications and finding reachedon different issues discussed in the judgment. Afterascertainment of such share plaintiff and Defendant No:2are to be put in possession of such properties that would beallotted to them separately in consequence of the final decreeproceeding. Hearing fee at contested useable.”

10. Thus, the Trial Court directed that:

(i)the properties listed in the Schedule ‘A’ to ‘F’ referred toabove shall be considered as ancestral properties, while theproperties listed in the Schedule ‘J’ (1 to 8 properties) wereconsidered as the self-acquired properties of Late ShriEKumar Sahoo.

(ii)the Respondent No. 1 (herein Original Plaintiff) was heldentitled to 1/6[th] share in the ancestral properties and 1/3[rd]share in the self-acquired properties of Late Shri KumarSahoo. The Civil Court also directed that the plaintiff wasentitled 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 entitledto 4/6[th] share in the ancestral properties and 1/3[rd] share inGthe self-acquired properties of Late Shri Kumar Sahooincluding the mesne profits.

11. It is pertinent to note that as against the judgment and decreeof the Trial Court referred to above, it is only the Defendant No. 1, whothought fit to file F.A. No. 359 of 1986 before the High Court of Orissa.

AThis appeal was essentially filed on the ground that all the properties ofLate Shri Kumar Sahoo, as scheduled in the plaint should have beenheld to be ancestral properties.

12. It appears from the materials on record that while the firstappeal referred to above was pending before the High Court, theBDefendant No. 2 (Respondent No. 2 herein) entered into settlementwith the Defendant No.1 thereby relinquishing her share in accordancewith 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 suchcircumstances referred to above, compromise petition dated 29.03.1991duly signed on affidavit by the Defendant Nos. 1 and 2 resply, was filedCbefore the High Court which came to be registered as the MiscellaneousCase No. 643 of 1990 in F.A. No. 359 of 1986 referred to above.

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

D“4. In this appeal, it is first contended that certain propertieshaving been given to the daughters by the father during hislife time and certain properties having been gifted to them atthe time of their marriage and certain other properties havingbeen purchased by the father in the names of the twodaughters, namely plaintiff and Defendant No. 2, they areEnot entitled to any separate share after death of the father.

5. There is no challenge as such to the validity of the giftdeeds, if any, in favour of the daughters at the time of theirmarriage. There is also no material to indicate that certainproperties had been purchased in the names of the daughtersFas name-lenders and actually the property belonged to thefather. Therefore, even assuming that certain properties hadbeen gifted and had been purchased in the names of plaintiffand Defendant No. 2, that cannot be ground to negate theright of succession of the plaintiff and Defendant No. 2, whichGaccrued after death of the father.

6. The learned counsel for the appellant also contended thatsome properties were self-acquired properties of DefendantNo. 1 himself. perusal of the written statement indicatesthat no such specific case had been made out in the writtenstatement, nor any such material is available on record. InH

absence of any evidence worth the name, it is difficult to acceptsuch contention raised by the appellant.

7. The learned counsel appearing for the appellant thencontended that during pendency of the appeal, compromisehas been effected between the present appellant andRespondent No. 2, wherein Respondent No.2 has given upher share in favour of Defendant No. 1. Since suchcompromise is otherwise lawful and it does not prejudiciallyaffect the right of the plaintiff, it can be given effect to andthe decree of the trial court is to be modified accordingly.”

8. Thus, though all other contentions of the appellant are notacceptable, in view of the compromise the decree of the trialcourt is modified to the extent that Defendant No. 1 shall alsobe entitled to the share of Respondent No. 2. In other words,he would be entitled to 5/6th share in the ancestral propertyand 2/3rdshare in the separate properties as determined bythe trial court. The decree of the trial court is modified to theabove extent.

9. It appears that during the pendency of the appeal, receivershad been appointed at different times and presently DefendantNo. 1-appellant is continuing as the receiver. It further appearsthat certain amounts have been deposited in this Court whichhave been kept in fixed deposit. The fixed deposit in this courtshall be renewed from time to time for appropriate period tofetch maximum interest. The amount which is not yet kept infixed deposit shall also be kept in fixed deposit in similarmanner so that the amount can be disbursed in accordancewith the direction to be made in the final decree after thefinal decree proceedings are over. If the parties do not cometo any amicable arrangement, the plaintiff or Defendant No.1 may initiate the final decree proceeding. The trial courtafter making necessary adjustment towards any justifiedexpenditure, et cetera, shall pass direction regardingdisbursement of the amount in accordance with the sharesnow indicated in this judgment. The receiver shall henceforthact under the direction of the trial court and all necessaryobligation relating to accounting and maintenance of theproperties etc. shall be determined by the trial court and if

Aany deposit is required to be made by the receiver, the sameshall be made in the trial court which shall make similararrangements regarding fixed deposits. Applications forremoval of the receiver or for imposing any fresh conditionscan be made before the trial court which is free to deal withall such applications.”(Emphasis supplied)B

14. The Defendant No. 1 (Appellants herein) continued with thelitigation by filing the Letters Patent Appeal under Chapter VI of theRules of High Court of Orissa, 1948. The Letters Patent Appeal wasfiled essentially on the ground that the learned Single Judge of the HighCourt had failed to correctly adjudicate the issue whether some of theCproperties as mentioned in the schedule to the plaint were self-acquiredproperties of Late Shri Kumar Sahoo or all the properties were ancestralproperties.

15. The Defendant No. 1 (Appellants) went in appeal before theDivision Bench of the High Court essentially on the ground that all theDproperties were ancestral as the same are derived out of the same nucleusof the existing ancestral properties. The appeal before the Division Benchwas 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 videEcross 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 theFcontentious issues by the learned trial judge are eithererroneous or error in law warranting interference by thisCourt in exercise of its power?

(ii) whether the first appellate judge in not dealing with thegrounds urged by the first defendant by framing appropriatepoint on the findings recorded on the contentious issues byGthe learned trial court, this court requires interference withthe impugned judgment in this appeal though, this Court’sjurisdiction in this Letter Patent Appeal is also analogous tothe first appellate court?

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

(iv) whether the compromise petition filed by the counsel fordefendants 1 & 2 In the First Appeal without specialauthorization in their favour for signing the compromisepetition by defendant no. 2, and plaintiff is not party to thecompromise petition, could have been accepted by the learnedSingle Judge and modified the judgment of the trial court inso far as the share assigned to the defendant no.2, the sameis legal and valid?

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

18. The Division Bench of the High Court vide its impugnedjudgment and order dated 5.05.2011 dismissed the appeal i.e., the AHONo. 133 of 2000 filed by the Defendant No. 1 (Appellant herein) andallowed the cross appeal filed by the Defendant No. 2. Thus, the DivisionBench of the High Court set at naught the compromise entered intobetween the Defendants.

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

SUBMISSIONS ON BEHALF OF THE APPELLANTS

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

21. It was submitted that there is nothing on record to indicatethat Late Shri Kumar Sahoo had any independent source of incomethrough which, he during his lifetime had acquired certain propertieswhich, does not form part of the ancestral properties. According to Mr.Basant, the J series properties (1 to 8 properties) were bought by LateShri Kumar Sahoo with the aid of the income derived from the ancestralproperties and in such circumstances, the J series (1 to 8 properties)

Awould form part of the same nucleus of existing ancestral propertieswhich could now be said to have been devolved on the Plaintiff and theDefendants as ancestral properties.

22. Mr. Basant, thereafter, addressed the Court on the effect ofthe Hindu Succession (Amendment) Act, 2005 (for short, ‘theBAmendment Act, 2005’ or ‘2005 Amendment’) to the Hindu SuccessionAct, 1956 (for short, ‘the Act 1956’). He submitted that the Respondentshould not be allowed to raise the plea of effecting rights under theamendment to Section 6 of the Act 1956 after these many years. Hefurther submitted that assuming for the moment that the 2005 Amendmenthas altered the rights of the parties, more particularly, the sisters as co-Cparceners, however, in view of the settlement deed, the rights of theRespondent No. 2 (herein Original Defendant No. 2) could be said tohave been extinguished and transferred to the Appellants. He submittedthat the transfer by the Defendant No. 2 of her entire share in favour ofthe Defendant No. 1 would be disposition of her share/rights in the suit

Dproperties. The disposition which took place in 1991 cannot be permittedto be unsettled in view of the 2005 Amendment.

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

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

25. He further submitted that in accordance with the proviso tosub-section (1) of Section 6 of the Act 1956 (as amended on 9.09.2005)no disposition or alienation including partition or testamentary dispositionGof property which took place before 20.12.2004 shall be invalidated orset aside on account of the 2005 Amendment.

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

“76. It was argued that in case Parliament intended that theincident of birth prior to 2005 would be sufficient to conferthe status of coparcener, Parliament would need not haveenacted the proviso to Section 6(1). When we read theprovisions conjointly, when right is given to the daughter ofa coparcener in the same manner as son by birth, it becamenecessary to save the dispositions or alienations, includingany partition or testamentary succession, which had takenplace before 20-12-2004. daughter can assert the right onand from 9-9-2005, and the proviso saves from invalidationthe above transactions.” (Emphasis supplied)27. Mr. Basant submitted that there was no good reason for theHigh Court to look into the validity and execution of the settlement deedbetween the Defendant Nos. 1 and 2 resply. If all the properties areconsidered to be ancestral, the Plaintiff is entitled to 1/6[th] share of thetotal ancestral properties, while the Defendant No. 1 would be entitledto 5/6[th] share of the total ancestral property. He submitted that in theevent, it is determined that the J series properties (1 to 8 properties) arein fact self-acquired, then the Plaintiff is entitled to 1/6[th] share of theancestral property and 1/3[rd] share of the self-acquired property, whilethe Defendant No. 1 would be entitled to 5/6[th] share of the total ancestralproperty and 2/3[rd] share of the self-acquired property.

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

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

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

(iii) D.S. Lakshmaiah and Another v. L. Balasubramanyamand 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 paras18, 19, 23-25.

A29. In such circumstances referred to above, Mr. Basant praysthat there being merit in his appeals, the same may be allowed and theimpugned judgment and order passed by the High Court be modifiedaccordingly.

SUBMISSIONS ON BEHALF OF THE RESPONDENTBNO. 1 (ORIGINAL PLAINTIFF)

30. Ms. B. Sunita Rao, the learned counsel appearing for theRespondent No. 1 (Original Plaintiff) vehemently submitted that no errornot to speak of any error of law could be said to have been committedby the High Court in passing the impugned judgment and decree. SheCsubmitted that in view of the decision of this Court in the case of VineetaSharma (supra) the Plaintiff is now entitled to 1/3[rd] share in all theproperties of Late Shri Kumar Sahoo, which were available at the timeof filing of the suit. She submitted that in view of the decision of thisCourt, in the case of Ganduri Koteshwaramma and Another v. ChakiriYanadi and Another reported in (2011) 9 SCC 788, the preliminaryDdecree can be awarded/altered or modified in the event of the changedcircumstances, even if no appeal has been filed.

31. The learned counsel further submitted that in view of theamendment of 2005 to Section 6 of the Act 1956 and the decision of thisCourt in case of Vineeta Sharma (supra) the daughters are entitled toEequal share with that of the son in the coparcenary properties. ThePlaintiff being one of the daughters of Late Kumar Sahoo is entitled to alarger and equal share in the ancestral property and in such circumstancesthe decree now needs to be modified on account of the operation of law.

32. The learned counsel submitted that the Plaintiff and DefendantsFare now each entitled to 1/3[rd] share of both ancestral and self-acquiredproperties of Late Kumar Sahoo. While explaining the true import of theoperation of the amended provision of Section 6(1) of the Act 1956, shesubmitted that the alienations before 20.12.2004 are permitted but theproperty alienated would fall to the share of the co-parcener, who madeGthe alienation, if no legal binding necessity is proved. The learned counselpointed out that the Trial Court has held that alienation would be partof the share of the Defendant No. 1. She submitted that any alienationafter the date of filing of the suit would be hit by the doctrine of lispendens. The alienation prior to the filing of the suit was considered bythe Trial Court and specific finding in that regard has been recorded.H33. It was pointed out that out of 4.408 acres of land in Schedule‘A’ and ‘B’ properties, the unencumbered property available for immediatedivision is 3.762 acres (around 94 guntas). It was also pointed out thatfull extent of the suit properties in Schedule ‘C’, ‘D’, ‘E’ and ‘F’ resplyare available for division, as at the time of the preliminary decree.

34. As regards the settlement between the Defendant Nos. 1 and2, the learned counsel submitted that the Plaintiff was never part ofthe compromise. No notice was issued to her nor she had put her signatureon any part of the compromise deed or had agreed to the terms of thecompromise. According to the learned counsel, the Plaintiff never joinedin the settlement. On the issue of disbursement of the receivership amountdeposited in the Court, the counsel submitted that the Plaintiff is 84 yearsold and has filed multiple IAs being IA No. 44977 of 2013, IA No. 127171of 2019 and IA No. 190628 of 2022 resply in the present proceedings fordisbursement of her 1/3[rd] share in the amount already deposited by thereceiver. It was submitted that the Plaintiff does not have any independentsource of income and has to incur lot of expenditure towards medicaltreatment etc.

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

“1. Modification of the superstructures on suit propertywithout leave of the Court. (Relevant page 10-13 of IA)

2.Dues with regard to suit properties:

a. Water Bills -Rs. 51,478/-F

b. Revenue Tax -Rs. 80,733/-

c. Electricity Bills - Rs.1,89,228.84

totalRs. 3,21,439.84

(Relevant page 14-15 of IA)

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

42SUPREME COURT REPORTS

A4.Installation of 100 Kw Electric transformer on suitproperty after getting permission for different plot.(Relevant Page 21 of IA)

5.Obtained permission for Electric substation of 500 KVAfor suit property by forging signature of plaintiff andBDefendant 2 (in 2016 whereas Defendant no. 2 died in2008) (Relevant Page 22 of IA)

6.A case for authorized construction on suit properties hasbeen instituted by Cuttack Development Authority beingU.C. No. 249/2016. (Relevant Page 23 of IA)”C36. The learned counsel vehemently submitted that the DefendantNo. 2 should be removed as receiver forthwith and the Plaintiff shouldbe appointed as the receiver of the properties.

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

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

(i)Whether the properties as scheduled in the plaint areancestral or self-acquired properties of the predecessor-Ein-interest of the plaintiff and defendants 1 and 2 and whatshare the parties are entitled to?

(ii)Whether cross-appeal is maintainable for the purpose ofchallenging the alleged compromise?

F(iii)Whether the alleged settlement deed dated 28.03.1991 isvalid and binding under order XXIII Rule 3 Code of CivilProcedure, 1908 (for short, ‘the CPC’)?

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

(v)Whether the counsel can sign the Compromise Petitionwithout an express consent?

38. On the first issue, the learned Senior Counsel submitted thatthere is concurrent finding on the nature of the suit properties recordedby all the three courts i.e., the Trial Court, the Single Judge of the HighHCourt 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 alongwith their brother i.e., the Defendant No. 1 (Appellant). He would submitthat the law in this regard is now well settled as explained by this Courtin the case of Vineeta Sharma (supra). Relying on the decision of thisCourt, in the case of Ganduri Koteshwaramma (supra) he submittedthat even if no appeal has been filed by the Plaintiff and the Defendant,the shares will have to be determined in accordance with the amendmentand the law as laid down in Vineeta Sharma (supra). Over and abovethe share reckoned in the alleged compromise in dispute, the DefendantNo. 2 would be entitled to additional 1/6[th] share in the ancestral property.

39. On the second issue referred to above, the learned SeniorCounsel submitted that cross-appeal is maintainable for the purpose ofchallenging the compromise. He submitted that cross-appeal underOrder XLI Rule 22 of the CPC is as good as regular first appeal andthe same would be maintainable, even if, the regular first appeal isdismissed or withdrawn. cross-appeal is an exercise of substantiveright of appeal and only the procedure would vary.

40. The learned Senior Counsel also invited the attention of thisCourt to the provisions of Order XLIII Rule 1-A (2) of the CPC. Hewould submit that the cross-objector is entitled under Order XLI Rule22 of the CPC read with Order XLIII Rule 1-A (2) of the CPC tocontend in his or her cross-appeal that the alleged settlement deed oragreement should not have been reckoned as valid compromise andrecorded under Order XXIII Rule 3 of the CPC.

41. In such circumstances referred to above, the learned SeniorCounsel prays that there being no merit in the appeals the same may bedismissed and the shares of the parties be determined in accordancewith the 2005 Amendment.

ANALYSIS

42. Having heard the learned counsel appearing for the partiesand having gone through the materials on record, the following questionsfall for our consideration:

(i) In what manner, the rights of the parties would be governedkeeping in mind the dictum as laid by this Court in its decision in the caseof Vineeta Sharma (supra)

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

B43. Before adverting to the rival submission canvassed on eitherside, we should give fair idea as regards the history and developmentof Hindu Law as well as look at the Law Commission Report, Report ofthe Standing Committee of Parliament and the Statement of Objectsand Reasons of the Bill introduced in Parliament with the purpose offinding out the true intent of the Parliament in amending Section 6 of theCAct 1956 by the 2005 Amendment.

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

Old Hindu Law

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

46. Under the Dayabhaga School of Hindu Law, the daughtersalso got equal share along with their brothers. Under the DayabhagaH

School property is transmitted by Succession and not by Survivorship. Inthis School, female could be coparcener. So far as the DayabhagaSchool was concerned, there was no concept of coparcenary propertyand every member of Hindu family would hold property in his/her ownright and was entitled to dispose of the property as he/she deems fiteither by gift or Will. There was no concept of passing of property bysurvivorship nor did Hindu male in Dayabhaga School acquire rights toproperty merely by virtue of his birth. Consequently, women had rightequal to the rights to that of men belonging to the family in the DayabhagaSchool of Hindu Law.

47. The earliest legislation with regard to right of female inheritancewas made in 1929 called the Hindu Law of Inheritance Act, 1929. ThisAct conferred inheritance right to three female heirs- son’s-daughter,daughter’s-daughter and sister. Thus, bringing about restrictions on theexclusive Rule of Survivorship. The next legislation was the HinduWomen’s Right to Property Act 1937. This Act enabled the widow tosucceed along with the son of the deceased in equal share to the propertyof her deceased husband. However, the widow was entitled only tolimited estate in the property i.e. life estate and could not dispose of theproperty during her life time.48. In 1950, while framing the Constitution, Articles 14, 15(2) &(3) and 16 of the Constitution of India, sought inter alia to restrain practiceof discrimination against women and made equal treatment of women apart of the fundamental rights guaranteed under the Constitution. In linewith the above Constitutional objective, the Parliament enacted the HinduSuccession Act,1956 i.e. the Principal Act. This Act applies to all Hindusincluding Buddhists, Jains and Sikhs. It lays down uniform andcomprehensive system of inheritance and applies to all Hindus, whethergoverned by Mitakshara or Dayabhaga School of Hindu Law. However,Section 6 of the Principal Act as originally enacted retained substantiallythe Rule of passing of property in coparcenary by survivorship, althoughit did give rights of testamentary disposition to Hindu males in respect ofhis properties including his coparcenary share. The erstwhile Section 6of the Principal Act (pre-amended Section 6) inter alia provided thatthe interest of coparcener in the coparcenary property if not disposedof by Will under Section 30 of the Principal Act, would devolve in termsof pre-amended Section 6. The main part of pre-amended Section6 provided that the right of male Hindu at the time of his death in the

Acoparcenary property will devolve by survivorship. However, the provisoprovided that if the deceased coparcener has any female relativesspecified in Class I of the Schedule to the Act, then the property willdevolve in terms of pre-amended Section 6. The Explanation 1 providesthat there would be notional partition immediately before his death so asto allocate the share in the coparcenary to the deceased coparcener.B

49. It is interesting to note that the Hindu Code Bill wanted to doaway with the Mitakshara coparcenary completely. However, the samewas opposed to and the erstwhile Section 6 was enacted in the PrincipalAct. Consequently, if partition took place in the coparcenary property,then each male coparcener would get his share and the mother andCwife/widow would not become coparcener but would get share inthe coparcenary property. But daughter would get no share in thecoparcenary property. The daughter would only get share as one ofthe heirs on the death of coparcener, out of the share of the deceased inthe coparcenary property on notional partition, in view of proviso to pre-Damended Section 8 of the Principal Act. In terms of Section 30 of thePrincipal Act, Hindu male can dispose of his entire property includinghis interest in coparcenary property by testamentary disposition/ Willand 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 thegender reforms were called for to ensure equality. The Commissionnoted the fact that in various States such as Kerala, Andhra Pradesh,Tamil Nadu, Maharashtra and Karnataka, attempts had already beenFmade to bring about the gender equality. But all these States, exceptKerala, while conferring coparcenary rights on daughters also deniedsuch rights to daughters married prior to State Acts coming into force.

51. The Law Commission recommended that the daughter shouldbe made coparcener by birth and that she should be entitled to get aGshare on partition and/or on the death of the male coparcener. TheCommission also recommended that daughter who is married after thecommencement of the Amendment Act, should be entitled to share inthe ancestral property as she has already become coparcener prior toher marriage. One more recommendation of the Law Commission wasto do away with the erstwhile Section 23 of the Principal Act whichHprovided that woman would have right to stay in the family house as

member of the joint Hindu Family but unlike male, she would have noright to demand partition of the family house. The Commissionrecommended that she should have rights equal to the male in respect ofa family house.

52. The Law commission also observed that the Law ofSuccession falls under Entry V of the List III (concurrent list) in VIISchedule of the Constitution. In view of Article 246 of the Constitutionof India the laws made by the above mentioned five States, would standrepealed to the extent they are repugnant to the Principal Act onamendment.

53. On 20th December, 2004, the Hindu Succession AmendmentBill 2004 was introduced in the Rajyasabha, inter alia, seeking to amendthe erstwhile Section 6 and doing away/omitting the erstwhile Section23 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 codifiedthe law relating to intestate succession Hindus and gave rightswhich were till then unknown in relation to women’s property.However, it does not interfere with the special rights of thosewho are members of Hindu Mitakshara coparcenary exceptto provide rules for devolution of the interest of deceasedmale in certain cases. The Act-lays down uniform andcomprehensive system of inheritance and applies, inter alia,to persons governed by the Mitakshara and Dayabhagaschools and also to those governed previously by theMurumakkattayam, Aliyasantana and Nambudir laws.”

The Act applies to every person who is Hindu by 28 of 72SA.566.2011 religion in any of its forms or developmentsincluding Virashaiva, Lingayat or follower of theBrahmo, Parathana or Arya Samaj; or to any person who isBuddhist, Jain or Sikh by religion; or to any other personwho is not Muslim, Christian, Parsi or Jew by religion. Inthe case of testamentary disposition, this Act does not applyand the interest of the deceased is governed by the IndianSuccession Act, 1925.

A2. Section 6 of the Act deals with devolution of interest of amale Hindu in coparcenary property and recognizes the ruleof devolution by survivorship among the members of thecoparcenary. The retention of the Mitakshara coparcenaryproperty without including the females in it means that thefemales cannot inherit in ancestral property as their maleBcounterparts to. The law by excluding the daughter fromparticipating in the coparcenary ownership not onlycontributes to her discrimination on the ground of genderbut also has led to oppression and negation of her fundamentalright of equality guaranteed by the Constitution. HavingCregard to the need of render social justice to women, the Statesof Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtrahave made necessary changes in the law giving equal rightto daughters in Hindu Mitakshara coparcenary property. TheKerala Legislature has enacted the Kerala Joint Hindu FamilySystem (Abolition) Act, 1975.

3. It is proposed to remove the discrimination as containedin section 6 of the Hindu Succession Act, 1956 by giving equalrights to daughters in the Hindu Mitakshara coparcenaryproperty as the sons have. Section 23 of the Act disentitles afemale heir to ask for partition in respect of dwelling houseEwholly occupied by joint family until the male heirs chooseto divide their respective shares therein. It is also proposed toomit the said section so as to remove the disability on femaleheirs contained in that section.”

4. The above proposals are based on the recommendations ofthe Law Commission of India as contained in its 174th Reporton ‘Property Rights of Women: Proposed Reform under theHindu Law.

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

(Emphasis supplied)

54. The Bill inter alia provided in proviso to proposed Section6(1) that the Amendment Act would not apply to daughter marriedbefore the commencement of the Amendment Act and also thatthe Amendment Act will have no application to partition in case thepartition had been affected before the commencement of the AmendmentH

Act. The aforesaid Bill was thereafter referred to the Standing committeeof Parliament. The Standing Committee after recording the historicalgrowth of Hindu Law and Gender inequality with regard to the propertyright practiced against female Hindu suggested that proviso 1 toproposed Section 6(1) of the Bill which sought to exclude the daughtermarried before the commencement of the Amendment Act from thebenefit of the Act should be done away with.

55. The Standing Committee also suggested that the partition ofthe Hindu family property should be properly defined in the AmendmentAct. It was suggested that partition for all purposes should be either byregistered documents or by decree of Court. However, where oral partitionis pleaded, the same should be backed by evidence in support. Furtheromission of Section 23 as suggested by the Law Commission, will enablethe Hindu Women to seek partition of family house occupied by thefamily members just as male member could seek partition.

56. Thereafter, on 9.09.2005, the Amendment Act, 2005 came tobe passed as Act 39 of 2005. Section 3 of the Amendment Act, 2005substituted erstwhile Section 6 of the Principal Act. The AmendmentAct, 2005 did away with exclusion of married daughter from getting thebenefit of the amendment and also added proviso to Section 6(1) ofthe Principal Act saving partitions done prior to 20.12.2004 (the date ofintroduction 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 ofthe Act partition only means partition by registered document or decreeof Court.

57. Before averting to the rival submissions canvassed on eitherside, it would be apposite to reproduce the erstwhile Section 6 asappearing in the Principal Act and the amended Section 6 of the PrincipalAct, as substituted by Section 3 of the Amendment Act for the sake ofconvenience. The pre-amended Section 6 of the Principal Act reads asunder:

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

AProvided that, if the deceased had left him surviving femalerelative specified in class I of the Schedule or male relativespecified in that class who claims through such femalerelative, the interest of the deceased in the Mitaksharacoparcenary property shall devolve by testamentary orintestate succession, as the case may be, under this Act andBnot by survivorship.

Explanation 1 - For the purposes of this section, the interestof Hindu Mitakshara coparcener shall be deemed to be theshare in the property that would have been allotted to him ifa partition of the property had taken place immediately beforeChis death, irrespective of whether he was entitled to claimpartition or not.

Explanation 2 - Nothing contained in the proviso to this sectionshall be construed as enabling person who has separatedhimself from the coparcenary before the death of the deceasedDor any of his heirs to claim on intestacy share in the interestreferred to therein.”

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

“6. Devolution of interest of coparcenary property.—

(1) On and from the commencement of the Hindu Succession(Amendment) Act, 2005, in Joint Hindu family governed bythe Mitakshara law, the daughter of coparcener shall,

(a) by birth become coparcener in her own right in the samemanner as the son;

(b) have the same rights in the coparcenary property as shewould have had if she had been son;

(c) be subject to the same liabilities in respect of the saidcoparcenary property as that of son, and any reference toa Hindu Mitakshara coparcener shall be deemed to includea reference to daughter of coparcener:

Provided that nothing contained in this sub-section shall affector invalidate any disposition or alienation including any

partition or testamentary disposition of property which hadtaken place before the 20th day of December, 2004.

(2) Any property to which female Hindu becomes entitledby virtue of sub-section (1) shall be held by her with theincidents of coparcenary ownership and shall be regarded,notwithstanding anything contained in this Act or any otherlaw for the time being in force in, as property capable ofbeing disposed of by her by testamentary disposition.

(3) Where Hindu dies after the commencement of the HinduSuccession (Amendment) Act, 2005, his interest in the propertyof Joint Hindu family governed by the Mitakshara law, shalldevolve by testamentary or intestate succession, as the casemay be, under this Act and not by survivorship, and thecoparcenary property shall be deemed to have been dividedas if partition had taken place and,—

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

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

(c) the share of the pre-deceased child of pre-deceased sonor of pre-deceased daughter, as such child would have gothad he or she been alive at the time of the partition, shall beallotted to the child of such pre-deceased child of the pre-deceased son or pre-deceased daughter, as the case maybe.

Explanation. — For the purposes of this sub- section, theinterest of Hindu Mitakshara coparcener shall be deemedto be the share in the property that would have been allottedto him if partition of the property had taken placeimmediately before his death, irrespective of whether he wasentitled to claim partition or not.

(4) After the commencement of the Hindu Succession(Amendment) Act, 2005, no court shall recognise any right to

ABC

DEF

proceed against son, grandson or great- grandson for therecovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation underthe Hindu law, of such son, grandson or great-grandson todischarge any such debt:

Provided that in the case of any debt contracted before thecommencement 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 beenforceable under the rule of pious obligation in the samemanner and to the same extent as it would have beenenforceable 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 torefer to the son, grandson or great-grandson, as the casemay be, who was born or adopted prior to the commencementof the Hindu Succession (Amendment) Act, 2005.

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

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

59. Before we proceed to discuss the dictum, as laid by this Courtin Vineeta Sharma (supra) we must look into the decision of this CourtGin the case of Ganduri Koteshwaramma (supra). In GanduriKoteshwaramma (supra) this Court, in paras 11, 12, 13 & 14 resply,observed as under:

“11. The new Section 6 provides for parity of rights in thecoparcenary property among male and female members of aHjoint 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 coparcenerbecomes coparcener by birth in her own rights and liabilitiesin the same manner as the son. The declaration in Section 6that the daughter of the coparcener shall have same rightsand liabilities in the coparcenary property as she would havebeen son is unambiguous and unequivocal. Thus, on andfrom 9-9-2005, the daughter is entitled to share in theancestral property and is coparcener as if she had been ason.

12. The right accrued to daughter in the property of jointHindu family governed by the Mitakshara law, by virtue ofthe 2005 Amendment Act, is absolute, except in thecircumstances provided in the proviso appended to sub-section(1) of Section 6. The excepted categories to which new Section6 of the 1956 Act is not applicable are two, namely, (i) wherethe disposition or alienation including any partition has takenplace before 20-12-2004; and (ii) where testamentarydisposition of property has been made before 20-12-2004.Sub-section (5) of Section 6 leaves no room for doubt as itprovides that this section shall not apply to the partition whichhas been effected before 20-12-2004. For the purposes ofnew Section 6 it is explained that “partition” means anypartition made by execution of deed of partition dulyregistered under the Registration Act, 1908 or partitioneffected by decree of court. In light of clear provisioncontained in the Explanation appended to sub-section (5) ofSection 6, for determining the non-applicability of the section,what is relevant is to find out whether the partition has beeneffected before 20-12-2004 by deed of partition dulyregistered under the Registration Act, 1908 or by decree ofa court. In the backdrop of the above legal position withreference to Section 6 brought in the 1956 Act by the 2005Amendment Act, the question that we have to answer is as towhether the preliminary decree passed by the trial court on19-3-1999 and amended on 27-9-2003 deprives the appellantsof the benefits of the 2005 Amendment Act although finaldecree for partition has not yet been passed.

A13. The legal position is settled that partition of joint Hindufamily can be effected by various modes, inter alia, two ofthese modes are (one) by registered instrument of partitionand (two) by decree of the court. In the present case,admittedly, the partition has not been effected before 20-12-2004 either by registered instrument of partition or by aBdecree of the court. The only stage that has reached in thesuit for partition filed by Respondent 1 is the determinationof shares vide preliminary decree dated 19-3-1999 which cameto be amended on 27-9-2003 and the receipt of the report ofthe Commissioner.

14. preliminary decree determines the rights and interestsof the parties. The suit for partition is not disposed of bypassing of the preliminary decree. It is by final decree thatthe immovable property of joint Hindu family is partitionedby metes and bounds. After the passing of the preliminaryDdecree, the suit continues until the final decree is passed. Ifin the interregnum i.e. after passing of the preliminary decreeand before the final decree is passed, the events andsupervening circumstances occur necessitating change inshares, there is no impediment for the court to amend thepreliminary decree or pass another preliminary decreeEredetermining the rights and interests of the parties havingregard to the changed situation.”

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

F(i) The equal share given to the daughter of coparcener governedby Hindu Mitakshara Law along with brothers is by way of asubstantive 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 thecoparcenary property is disposed of or alienated including by anypartition or testamentary disposition of property before 20-12-2004and;

(iv) If there is disposition of coparcenary property by any partition,Hsuch partition must be by execution of Deed of Partition duly

registered under the Registration Act, 1908 or effected by decreeof the Court.

(v) preliminary decree of partition only determines the rightsand interests of the parties. It is only by final decree that theimmovable property of joint Hindu family is partitioned by metesand bounds. After the passing of the preliminary decree, the suitcontinues until the final decree is passed. If in the interregnum i.e.after passing of the preliminary decree and before the final decreeis passed, if there is any change in law necessitating determinationof shares accordingly then, there would be no impediment for theCourt to amend the preliminary decree or pass another preliminarydecree redetermining the rights and interests of the parties havingregard to the changed situation.

61. Before the position of law came to be settled by this Court inVineeta Sharma (supra) there were to decisions of this Court governingthe rights of the parties: (i) Prakash and Others v. Phulavati andOthers reported in (2016) 2 SCC 36 and (ii) Danamma alias SumanSurpur and Another v. Amar and Others reported in (2018) 3 SCC343. In Prakash (supra) it was held that Section 6 is not retrospective inoperation and it would apply when both the coparcener and his daughterwere alive on the date of commencement of the Amendment Act i.e.,9.09.2005. Accordingly, the provisions of Section 6 were held to beprospective. In Danamma (supra) this Court held that the amendedprovisions of Section 6 conferred full rights upon the daughter coparcener.Any coparcener including daughter could claim partition in thecoparcenary property.62. In Danamma (supra), one Gurulingappa who was the fatherand coparcener of the claimant daughter, died in the year 2001, leavingbehind two daughters, two sons and widow. Thus, the father of thedaughter and coparceners was not alive when the substituted provisionof Section 6 came into force. Accordingly, the daughters, sons and thewidow were given 1/5[th] share in the properties. In this background, thisCourt took the view that when daughter, claiming and demanding ashare in the coparcenary property is alive on 9.09.2005, she would beentitled to the benefit of the amended provision irrespective of the effectwhether coparcener had died before the commencement of theAmendment Act.

63. three-Judge Bench of this Court doubted the correctness ofthe dictum as laid in Prakash (supra) as there was an apparent conflictbetween the dictum as laid in Prakash (supra) and Danamma (supra)referred to above. The question concerning the interpretation of Section6 of the Act 1956 was referred to larger Bench.

B64. The larger Bench ultimately settled the position of law inVineeta Sharma (supra). The three-Judge Bench of this Courtconsidered the following main questions amongst the others:

(i) Whether the substituted Section 6 of the HinduSuccession Act, 1956 would apply to cases where maleCcoparcener had already died prior to the commencementof the Amendment Act, 2005?

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

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

65. In Vineeta Sharma (supra) (paras 60, 68, 69 and 129), theCourt held that for the applicability of substituted Section 6 of the HinduSuccession Act, 1956, it is not necessary that the male coparcener mustEbe 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 theHindu Succession Act, 1956 is not confined to cases where malecoparcener dies after the commencement of the Amendment Act, 2005.Substituted Section 6 also applies to cases where male coparcener hadFalready 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 inpara 61:

“61. The prospective statuteoperates from the date of itsGenactment conferring new rights. The retrospective statuteoperates backward and takes away or impairs vested rightsacquired under existing laws. retroactive statuteis the onethat does not operate retrospectively. It operates in futuro.However, its operation is based upon the character or statusthat arose earlier. Characteristic or event which happened in

the past or requisites which had been drawn from antecedentevents. Under the amended Section 6, since the right is givenby birth, that is, an antecedent event, and the provisionsoperate concerning claiming rights on and from the date ofAmendment Act.” (Emphasis supplied)

67. Interpreting sub-section (1) of substituted Section 6 of the Act1956, the Court opined in para 60 as under:

“60. The amended provisions of Section 6(1) provide that onand from the commencement of the Amendment Act, thedaughter is conferred the right. Section 6(1)(a) makesdaughter by birth coparcener “in her own right” and “inthe same manner as the son”. Section 6(1)(a) contains theconcept of the unobstructed heritage of Mitaksharacoparcenary, which is by virtue of birth. Section 6(1)(b)confers the same rights in the coparcenary property “as shewould have had if she had been son”. The conferral ofright is by birth, and the rights are given in the same mannerwith incidents of coparcenary as that of son and she istreated as coparcener in the same manner with the samerights as if she had been son at the time of birth. Thoughthe rights can be claimed, w.e.f. 9-9-2005, the provisions areof retroactive application; they confer benefits based on theantecedent event, and the Mitakshara coparcenary law shallbe deemed to include reference to daughter as acoparcener. At the same time, the legislature has providedsavings by adding proviso that any disposition or alienation,if there be any testamentary disposition of the property orpartition which has taken place before 20-12-2004, the dateon which the Bill was presented in the Rajya Sabha, shall notbe invalidated.”

(Emphasis supplied)

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

“68. Considering the principle of coparcenary that personis conferred the rights in the Mitakshara coparcenary by birth,similarly, the daughter has been recognised and treated as acoparcener, with equal rights and liabilities as of that of ason. The expression used in Section 6 is that she becomes

Acoparcener in the same manner as son. By adoption also,the status of coparcener can be conferred. The concept ofuncodified Hindu law of unobstructed heritage has been givena concrete shape under the provisions of Sections 6(1)(a)and 6(1) (b). Coparcener right is by birth. Thus, it is not at allnecessary that the father of the daughter should be living asBon the date of the amendment, as she has not been conferredthe rights of coparcener by obstructed heritage. Accordingto the Mitakshara coparcenary Hindu law, as administeredwhich is recognised in Section 6(1), it is not necessary thatthere should be living, coparcener or father as on the dateCof the amendment to whom the daughter would succeed. Thedaughter would step into the coparcenary as that of son bytaking birth before or after the Act. However, daughter bornbefore can claim these rights only with effect from the date ofthe amendment, i.e., 9-9-2005 with saving of past transactionsas provided in the proviso to Section 6(1) read with SectionD6(5).” (Emphasis supplied)

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

“69. … Section 6(1) recognises joint Hindu family governedby Mitakshara law. The coparcenary must exist on 9-9-2005Eto enable the daughter of coparcener to enjoy rightsconferred on her. As the right is by birth and not by dint ofinheritance, it is irrelevant that coparcener whose daughteris conferred with the rights is alive or not. Conferral is notbased on the death of father or other coparcener. In caseliving coparcener dies after 9-9-2005, inheritance is not byFsurvivorship but by intestate or testamentary succession asprovided in substituted Section 6(3).” (Emphasis supplied)

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

“66. With respect to Hindu who dies after the commencementof the Amendment Act, as provided in section 6(3) his interestshall pass by testamentary or intestate succession and not bysurvivorship, and there is deemed partition of thecoparcenary property in order to ascertain the shares whichwould have been allotted to his heirs had there been

partition. The daughter is to be allotted the same share as ason; even surviving child of predeceased daughter or sonare given share in case the child has also died then thesurviving child of such predeceased child of predeceasedson or predeceased daughter would be allotted the same share,had they been alive at the time of deemed partition. Thus,there is sea-change in substituted Section 6. In case of deathof coparcener after 9-9-2005, succession is not bysurvivorship but in accordance with Section 6(3). TheExplanation to Section 6(3) is the same as Explanation I toSection 6 as originally enacted. …”(Emphasis supplied)

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

(A) Sub-section (1) of the substituted Section 6 of the HinduSuccession Act, 1956 recognises joint Hindu family governedby Mitakshara law.

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

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

(D) It is not necessary that coparcener whose daughter isconferred with the rights is alive or not on the date ofcommencement of the Amendment Act, 2005. The daughter wouldstep into the coparcenary as that of son by birth.

(E) Though the daughter would step into the coparcenary as thatof son by birth whether the daughter is born before thecommencement of the Amendment Act, 2005 or after thecommencement of the Amendment Act, 2005, but the daughterborn before the commencement of the Amendment Act, 2005can claim coparcenary rights only with effect from the date ofthe amendment, i.e., 9.9.2005 with saving of past transactions asprovided in the proviso to Section 6(1) read with Section 6(5).

(F) In case coparcener living on the date of commencement ofthe Amendment Act, 2005 (i.e., 9.9.2005) dies after 9.9.2005,inheritance is not by survivorship but by intestate or testamentarysuccession as provided in substituted Section 6(3).

ABC

A72. As noted earlier, sub-section (5) of substituted Section 6 ofthe Hindu Succession Act, 1956 provides that nothing contained in thesubstituted Section 6 shall apply to partition, which has been effectedbefore 20th December, 2004 (i.e., date on which the Bill correspondingto the Amendment Act, 2005 was presented in the Rajya Sabha).Explanation to the substituted Section 6 provides that for the purposes ofBSection 6 “partition” means (i) any partition made by execution of adeed of partition duly registered under the Registration Act, 1908 (16 of1908), or (ii) any partition effected by decree of court. Interpretingsub-section (5) of substituted Section 6 and Explanation to substitutedSection 6, the Court in Vineeta Sharma (supra), has observed in paraC67 as under:

“67. The proviso to Section 6(1) and Section 6(5) saves anypartition effected before 20-12-2004. However, Explanationto Section 6(5) recognises partition effected by execution ofa deed of partition duly registered under the Registration Act,D1908 or by decree of court. Other forms of partition havenot been recognised under the definition of “partition” inthe Explanation.”

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

The Court observed in para 85 as under:

F“85. The right to claim partition is significant basic featureof the coparcenary, and coparcener is one who can claimpartition. The daughter has now become entitled to claimpartition of coparcenary w.e.f. 9-9-2005, which is vitalchange brought about by the statute. coparcener enjoysthe right to seek severance of status. Under Sections 6(1)Gand 6(2), the rights of daughter are pari passu with son.In the eventuality of partition, apart from sons anddaughters, the wife of the coparcener is also entitled to anequal share. The right of the wife of 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 existingprior to the Amendment Act, 2005, if there would be partition ofcoparcenary 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 son (S1or S2). This position continues to exist as is evident from theobservation made in the last portion of the above-quoted paragraph85 of this Court’s decision. Hence, if there is partition ofcoparcenary property between father and sons (and now alsodaughters), then wife of father as well as widowed mother offather would get one share equal share to that of son (or adaughter).

(C) Under Mitakshara School of Hindu Law, member of jointHindu Family can bring about his separation in status by definite,unequivocal and unilateral declaration of his intention to separatehimself from the family and enjoy his share in severalty. Thus, theinstitution of suit for partition by member of joint family is aclear intimation of his intention to separate, and there wasconsequential severance of the status of jointness. Question beforethis Court in Vineeta Sharma (supra) was: in case during thependency of partition suit or during the period between the passingof preliminary decree and final decree in the partition suit, anylegislative amendment or any subsequent event takes place whichresults in enlargement or diminution of the shares of the parties oralteration of their rights, whether such legislative amendment orsubsequent event can be into consideration and given effect towhile passing final decree in the partition suit. The Court held thateven though filing of partition suit brings about severance of statusof jointness, such legislative amendment or subsequent event willhave to be taken into consideration and given effect to in passingthe final decree in the partition suit. This is because, the partitionsuit can be regarded as fully and completely decided only whenthe final decree is passed. It is by final decree that partition ofproperty of joint Hindu Family takes place by metes and bounds.(See: paragraphs 89 to 102, and paragraphs 106, 114, 133 and136).

The Court observed in para 107 as under:

“107. Once the constitution of coparcenary changes bybirth or death, shares have to be worked out at the time ofactual partition. The shares will have to be determined inchanged scenario. The severance of status cannot comein the way to give effect to statutory provision and changeby subsequent event. The statutory fiction of partition isfar short of actual partition, it does not bring about thedisruption of the joint family or that of coparcenary is asettled proposition of law. For the reasons mentionedabove, we are also of the opinion that mere severance ofstatus by way of filing suit does not bring about thepartition and till the date of the final decree, change inlaw, and changes due to the subsequent event can be takeninto consideration.” (Emphasis supplied)

(D) Prior to the Amendment Act, 2005, partition in joint HinduFamily could be made by oral partition or oral family settlement/family arrangement. If subsequently terms of such oral partitionor oral family settlement/family arrangement could be recordedin Memorandum. Such Memorandum was not required to beregistered. [See: paragraphs 115, 116, 119, 120, 121, 125 and 130].

74. As noted above, Explanation to substituted Section 6 providesEthat for the purposes of Section 6 “partition” means (i) any partitionmade by execution of deed of partition duly registered under theRegistration Act, 1908 (16 of 1908), or (ii) any partition effected by adecree of court. The Court in further considered the impact of theaforesaid Explanation on the oral partition or oral family settlement/familyarrangement made prior to 20th December, 2004. The Court opined inFpara 124 as under:

“124. The intendment of amended Section 6 is to ensure thatdaughters are not deprived of their rights of obtaining shareon becoming coparcener and claiming partition of thecoparcenary property by setting up the frivolous defence ofGoral partition and/or recorded in the unregisteredmemorandum of partition. The court has to keep in mind thepossibility that plea of oral partition may be set up,fraudulently or in collusion, or based on unregisteredmemorandum of partition which may also be created at any

point of time. Such partition is not recognised under Section6(5).” (Emphasis supplied)

75. The Court further held para 135 as under:

“135. special definition of partition has been carved out inthe Explanation. The intendment of the provisions is not tojeopardise the interest of the daughter and to take care ofsham or frivolous transaction set up in defence unjustly todeprive the daughter of her right as coparcener and preventnullifying the benefit flowing from the provisions assubstituted. The statutory provisions made in Section 6(5)change the entire complexion as to partition. However, underthe law that prevailed earlier, an oral partition was recognised.In view of change of provisions of Section 6, the intendmentof legislature is clear and such plea of oral partition is notto be readily accepted. The provisions of Section 6(5) arerequired to be interpreted to cast heavy burden of proofupon proponent of oral partition before it is accepted suchas separate occupation of portions, appropriation of theincome, and consequent entry in the revenue records andinvariably to be supported by other contemporaneous publicdocuments admissible in evidence, may be accepted mostreluctantly while exercising all safeguards. The intendmentof Section 6 of the Act is only to accept the genuine partitionsthat might have taken place under the prevailing law, and arenot set up as false defence and only oral ipse dixit is to berejected outrightly. The object of preventing, setting up offalse or frivolous defence to set at naught the benefitemanating from amended provisions, has to be given full effect.Otherwise, it would become very easy to deprive the daughterof her rights as coparcener. When such defence is taken,the court has to be very extremely careful in accepting thesame, and only if very cogent, impeccable, andcontemporaneous documentary evidence in shape of publicdocuments in support are available, such plea may beentertained, not otherwise. We reiterate that the plea of anoral partition or memorandum of partition, unregistered onecan be manufactured at any point in time, without anycontemporaneous public document needs rejection at all

Acosts. We say so for exceptionally good cases where partitionis proved conclusively and we caution the courts that thefinding is not to be based on the preponderance ofprobabilities in view of provisions of gender justice and therigour of very heavy burden of proof which meet intendmentof Explanation to Section 6(5). It has to be remembered thatBthe courts cannot defeat the object of the beneficial provisionsmade by the Amendment Act. The exception is carved out byus as earlier execution of registered document for partitionwas not necessary, and the court was rarely approached forthe sake of family prestige. It was approached as last resortCwhen parties were not able to settle their family disputeamicably. 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, HinduSuccession Act, 1956 by Justice Satya Poot Mehrotra, FormerDJudge Allahabad High Court.)

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

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

137.2. The rights can be claimed by the daughter born earlierwith effect from 9-9-2005 with savings as provided in Section6(1) as to the disposition or alienation, partition ortestamentary disposition which had taken place before the20th day of December, 2004.

137.3. Since the right in coparcenary is by birth, it is notnecessary that father coparcener should be living as on 9-9-2005.

137.4. The statutory fiction of partition created by the provisoto Section 6 of the Hindu Succession Act, 1956 as originallyenacted did not bring about the actual partition or disruptionof coparcenary. The fiction was only for the purpose ofascertaining share of deceased coparcener when he wasH

survived by female heir, of Class I as specified in theSchedule to the 1956 Act or male relative of such female. Theprovisions of the substituted Section 6 are required to be givenfull effect. Notwithstanding that preliminary decree has beenpassed, the daughters are to be given share in coparcenaryequal to that of son in pending proceedings for final decreeor in an appeal.

137.5. In view of the rigour of provisions of the Explanationto Section 6(5) of the 1956 Act, plea of oral partition cannotbe accepted as the statutory recognised mode of partitioneffected by deed of partition duly registered under theprovisions of the Registration Act, 1908 or effected by decreeof court. However, in exceptional cases where plea of oralpartition is supported by public documents and partition isfinally evinced in the same manner as if it had been affected(sic effected) by decree of court, it may be accepted. Aplea of partition based on oral evidence alone cannot beaccepted and to be rejected outrightly.”

77. The decision of Vineeta Sharma (supra) also highlights that achange in law during the pendency of an appeal must be considered andappropriately applied. This Court relied upon United Bank of India,Calcutta v. Abhijit Tea Company Private Limited and Others reportedin (2000) 7 SCC 357, wherein, it was held that:

“20. Now, it is well settled that it is the duty of court, whetherit is trying original proceedings or hearing an appeal, to takenotice of the change in law affecting pending actions and togive effect to the same. (See G.P. Singh: Interpretation ofStatutes, 7th Edn., p. 406.) If, while suit is pending, lawlike the 1993 Act that the civil court shall not decide the suit,is passed, the civil court is bound to take judicial notice ofthe 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 entireposition as follows:

“107. Once the constitution of coparcenary changes by birthor death, shares have to be worked out at the time of actualpartition. The shares will have to be determined in changed

scenario. The severance of status cannot come in the way togive effect to statutory provision and change by subsequentevent. The statutory fiction of partition is far short of actualpartition, it does not bring about the disruption of the jointfamily or that of coparcenary is settled proposition of law.For the reasons mentioned above, we are also of the opinionthat mere severance of status by way of filing suit does notbring about the partition and till the date of the final decree,change in law, and changes due to the subsequent event canbe taken into consideration.

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114. In the instant case, the question is different. What hasbeen recognised as partition by the legislation under Section6, accordingly, rights are to be worked out. This Courtconsistently held in various decisions mentioned above thatwhen the rights are subsequently conferred, the preliminaryDdecree can be amended, and the benefit of law has to beconferred. Hence, we have no hesitation to reject the effectof statutory fiction of the proviso to Section 6 as discussedin Prakash v. Phulavati [(2016) 2 SCC 36 : (2016) 1 SCC(Civ) 549] and Danamma [Danamma v. Amar, (2018) 3 SCCE343 : (2018) 2 SCC (Civ) 385]. If daughter is alive on thedate of enforcement of the Amendment Act, she becomes acoparcener 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 OFLAW TO THE FACTS OF THE PRESENT CASE

79. Let us assume for the moment that the Trial Court wouldhave decreed the suit in favour of the plaintiff i.e., the daughter givingher 1/3[rd] share uniformly in all the properties including the ancestralproperties. It could have been argued that the Trial Court could not havedone so, having regard to the position of law, prevailing at the relevantpoint of time. However, after the decision of this Court in the case ofVineeta Sharma (supra) such allotment of share would be in accordancewith law. Let us also assume one another alternative. Take for instance,the Trial Court would have decreed the suit giving (i) 1/3[rd] share to thedaughter in self-acquired property and (ii) giving 1/3[rd] share in the half

were of father’s portion of ancestral properties. This was the lawprevailing at the relevant point of time and this is exactly what the TrialCourt has done in the present case, while passing the preliminary decreeas affirmed by the High Court. However, the law has now changed asdiscussed above.

80. It is in the aforesaid background that daughters are entitled to1/3[rd] share in all the properties as scheduled in the plaint. The samewould be in accordance with the dictum as laid in Vineeta Sharma(supra), while passing the final decree. At the cost of repetition, westate that by virtue of the preliminary decree passed by the Trial Court,which was confirmed by the Division Bench of the High Court, theissues decided therein will be deemed to have become final but as thepartition suit is required to be decided in stages, the same can be regardedas fully and completely decided only when the final decree is passed. Asthe law governing the parties has been amended before the conclusionof the final decree proceedings, the party benefitted by such amendment(like the two daughters in the case on hand) can make request to theTrial Court to take cognizance of the Amendment and give effect to thesame.81. We do not find any merit in the submissions canvassed by Mr.Basant, learned Senior Counsel appearing for the Appellants that in apartition suit, the preliminary decree cannot be varied in the final decreeproceedings, despite the amendment of the law governing the parties.

82. In our opinion, no error not to speak of any error of law couldbe said to have been committed upon Courts below, while determiningthe shares of the parties. The only thing that needs to be done now is togive effect to the amendment in the provisions of Section 6 of the 1956Act and redetermine the shares of the parties accordingly. To put itstraight, the Plaintiff is entitled to 1/3[rd] share in all the properties of herLate father. The issue whether all the properties were ancestral as raisedon behalf of the Appellants pale into insignificance.

ISSUE NO. 2

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

A84. Mr. Basant, learned Senior Counsel vehemently submittedthat the settlement between the Defendant No. 1 and his sister i.e., theDefendant 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 9.04.1991i.e., at the time of the final hearing of the first appeal. The first appealcame to be disposed of on 1.08.2000, modifying the decree to the extentBof incorporating the terms of the compromise agreement between thetwo Defendants. It is only after lapse of ten years that during thependency of the appeal filed by the Appellants herein before the DivisionBench of the High Court that the Defendant No. 2 thought fit to filecross-appeal, challenging the alleged compromise. Mr. Basant submittedCthat such cross-appeal is not maintainable and even if it held to bemaintainable, the same should not have been entertained and allowedafter the lapse of almost ten years from the date of recording of thesettlement.

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

E“22. Upon hearing respondent may object to decree as if hehad preferred separate appeal.—(1) Any respondent, thoughhe may not have appealed from any part of the decree, maynot only support the decree [but may also state that the findingagainst him in the Court below in respect of any issue oughtto have been in his favour; and may also take any cross-Fobjection] to the decree which he could have taken by wayof appeal provided he has filed such objection in the AppellateCourt within one month from the date of service on him or hispleader of notice of the day fixed for hearing the appeal, orwithin such further time as the Appellate Court may see fit toGallow.

[Explanation.—A respondent aggrieved by finding of theCourt in the judgment on which the decree appealed againstis based may, under this rule, file cross-objection in respectof the decree in so far as it is based on that finding,Hnotwithstanding that by reason of the decision of the Court

on any other finding which is sufficient for the decision ofthe suit, the decree, is, wholly or in part, in favour of thatrespondent.]

(2) Form of objection and provisions applicable thereto.—Such cross-objection shall be in the form of memorandum,and the provisions of rule 1, so far as they relate to the formand contents of the memorandum of appeal, shall applythereto.

(4) Where, in any case in which any respondent has underthis rule filed memorandum of objection, the original appealis withdrawn or is dismissed for default, the objection so filedmay nevertheless be heard and determined after such noticeto the other parties as the Court thinks fit.

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

86. The right to prefer cross-objection partakes of the right toprefer an appeal. The learned counsel appearing for the Defendant No.2 (Respondent No. 2 herein) that cross-appeal under Order XLI Rule22 of the CPC is as effective as regular first appeal and the samewould sustain, even if, the regular first appeal is dismissed or withdrawn.A cross-appeal is the exercise of substantive right of appeal and only theprocedure varies. (See: Urmila Devi and Others v. Branch Manager,National Insurance Company Limited and Another, (2020)11 SCC316, para 16.)

87. Our attention was also drawn to the provisions of Order XLIIIof Rule 1-A (2) of the CPC. The same reads as under:

“1A. Right to challenge non-appealable orders in appealagainst decrees.—

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(2) In an appeal against decree passed in suit afterrecording compromise or refusing to record compromise,it shall be open to the appellant to contest the decree on theground that the compromise should, or should not, have beenrecorded.”

A88. We are of the view that the cross-appeal objector is entitledunder 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 thatshe was entitled in law to question the legality and validity of the settlementagreement recorded under Order XXIII Rule 3 of the CPC by way of across-appeal.B

89. In the aforesaid context, we may refer to the decision of thisCourt in the case of Banwari Lal v. Chando Devi (Smt) and Anotherreported in (1993) 1 SCC 581, more particularly, paras 9 to 13 resplytherein:

C“9. Section 96(3) of the Code says that no appeal shall liefrom decree passed by the Court with the consent of theparties. Rule 1-A(2) has been introduced saying that againsta decree passed in suit after recording compromise, itshall be open to the appellant to contest the decree on theground that the compromise should not have been recorded.DWhen Section 96(3) bars an appeal against decree passedwith the consent of parties, it implies that such decree is validand binding on the parties unless set aside by the procedureprescribed or available to the parties. One such remedyavailable was by filing the appeal under Order 43, Rule 1(m).EIf the order recording the compromise was set aside, therewas no necessity or occasion to file an appeal against thedecree. Similarly suit used to be filed for setting aside suchdecree on the ground that the decree is based on an invalidand illegal compromise not binding on the plaintiff of thesecond suit. But after the amendments which have beenFintroduced, neither an appeal against the order recordingthe compromise nor remedy by way of filing suit is available-in cases covered by Rule 3A of Order 23. As such right has-been given under Rule 1A(2) of Order 43 to party, whochallenges the recording of the compromise, to question theGvalidity thereof while preferring an appeal against the decree.Section 96(3) of the Code shall not be bar to such an appealbecause Section 96(3) is applicable to cases where the factumof compromise or agreement is not in dispute.

10. The learned counsel appearing for the respondent took astand 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 beencompromised in terms of Rule 3 of the said Order 23; as suchthere was no occasion for the appellant to file an applicationfor recall of the said order and for restoration of the suit inquestion for being heard on merit. From the copy of the petitionwhich was filed on February 27, 1991 it appears that theterms and conditions of settlement and agreement had beenmentioned saying that both parties had entered into acompromise because of which the plaintiff-appellant hadthereafter no connection with the disputed land anddefendant-respondent shall be deemed to be in possessionand the owner of the said disputed land. The prayer made inthe said petition also says that the compromise may be orderedto be accepted. On basis of that petition, as already mentionedabove, the court passed an order saying that the compromisehad been accepted. In the order it has been mentioned thatthe suit of the plaintiff be “dismissed as per compromise deedEx. C”. In view of the aforesaid facts and circumstances, it isdifficult to hold that by order dated February 27, 1991 theCourt allowed the suit to be withdrawn in terms of Rule 1 ofOrder 23. The order on face of it purported to dismiss the suitof the plaintiff on basis of the terms and conditions mentionedin the petition of compromise. As such, the validity of thatorder has to be judged treating it to be an order deemed tohave been passed in purported exercise of the power conferredon the Court by Rule 3 of Order 23 of the Code. The learnedSubordinate Judge should not have accepted the said petitionof compromise even if he had no knowledge of the fraudalleged to have been practised on the appellant by his counsel,because admittedly the petition of compromise had not beensigned either by the respondent or his counsel. This fact shouldhave been discovered by the Court. In the case of GurpreetSingh v. Chatur Bhuj Goel [(1988) 1 SCC 270 : AIR 1988 SC400] it has been said: (SCC p. 276, para 10)

“Under Rule 3 as it now stands, when claim in suit hasbeen adjusted wholly or in part by any lawful agreement orcompromise, the compromise must be in writing and signedby the parties and there must be completed agreement

between them. To constitute an adjustment, the agreement orcompromise must itself be capable of being embodied in adecree. When the parties enter into compromise during thehearing of suit or appeal, there is no reason why therequirement that the compromise should be reduced in writingin the form of an instrument signed by the parties should bedispensed with. The court must therefore insist upon the parties”to reduce the terms into writing.

The requirement of the petition of compromise being signedby the parties concerned has been considered also in the caseof Byram Pestonji Gariwala v. Union Bank of India [(1992)1 SCC 31 : AIR 1991 SC 2234] . It appears the attention oflearned Judges was not drawn to the aforesaid case of thisCourt in Gurpreet Singh v. Chatur Bhuj Goel [(1988) 1 SCC270 : AIR 1988 SC 400].

11. The present case depicts as to how on February 27, 1991Dthe court recorded the alleged agreement and compromise ina casual manner. It need not be impressed that Rule 3 of Order23 does not require just seal of approval from the Court toan alleged agreement or compromise said to have beenentered into between the parties. The statute requires the CourtEto be first satisfied that the agreement or compromise whichhas been entered into between the parties is lawful, beforeaccepting the same. Court is expected to apply its judicialmind while examining the terms of the settlement before thesuit is disposed of in terms of the agreement arrived at betweenthe parties. It need not be pointed out that once such petitionFof compromise is accepted, it becomes the order of the Courtand acquires the sanctity of judicial order.

12. On behalf of the respondent stand was taken that thelearned Subordinate Judge by his order dated September 20,1991 could not have recalled the order dated February 27,G1991 and restored the suit to its original number. It cannot bedisputed that the respondent can support the order of theHigh Court setting aside order dated September 20, 1991 onany other reason than the reason given by the High Court.

13. When the amending Act introduced proviso along withan explanation to Rule 3 of Order 23 saying that where it is

alleged by one party and denied by the other that anadjustment or satisfaction has been arrived at, “the Courtshall decide the question”, the Court before which petitionof compromise is filed and which has recorded suchcompromise, has to decide the question whether an adjustmentor satisfaction had been arrived at on basis of any lawfulagreement. To make the enquiry in respect of validity of theagreement or the compromise more comprehensive, theexplanation to the proviso says that an agreement orcompromise “which is void or voidable under the IndianContract Act …” shall not be deemed to be lawful within themeaning of the said Rule. In view of the proviso read with theexplanation, Court which had entertained the petition ofcompromise has to examine whether the compromise was voidor voidable under the Indian Contract Act. Even Rule 1(m) ofOrder 43 has been deleted under which an appeal wasmaintainable against an order recording compromise. Assuch party challenging compromise can file petitionunder proviso to Rule 3 of Order 23, or an appeal underSection 96(1) of the Code, in which he can now question thevalidity of the compromise in view of Rule 1-A of Order 43 ofthe Code.” (Emphasis supplied)

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

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

“13. When the amending Act introduced proviso alongwith an explanation to Rule 3 of Order 23 saying that whereit is alleged by one party and denied by the other that anadjustment or satisfaction has been arrived at, “the Courtshall decide the question”, the Court before which

ABC

petition of compromise is filed and which has recorded suchcompromise, has to decide the question whether anadjustment or satisfaction had been arrived at on basis ofany lawful agreement. To make the enquiry in respect ofvalidity of the agreement or the compromise morecomprehensive, the explanation to the proviso says thatan agreement or compromise “which is void or voidableunder the Indian Contract Act…” shall not be deemed tobe lawful within the meaning of the said Rule. In view ofthe proviso read with the explanation, Court which hadentertained the petition of compromise has to examinewhether the compromise was void or voidable under theIndian Contract Act.Even Rule 1(m) of Order 43 has beendeleted under which an appeal was maintainable againstan order recording compromise. As such partychallenging compromise can file petition under provisoto 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 1A of Order 43 of theCode.”

5. The appellants had thus the right to avail either the remedyof appeal in terms of Order 43 Rule 1A CPC or by way of anEapplication before the court granting decree. Therefore, theapplication filed by the appellants before the Court whichgranted the decree cannot be said to be without jurisdiction.”

(Emphasis supplied)

F91. Thus, in view of the aforesaid discussion, we hold that thecross-appeal filed by the Original Defendant No. 2, questioning the legalityand validity of the settlement was maintainable in law.

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

“First, the alleged compromise agreement has admittedly notbeen signed by the plaintiff who concededly has share inthe property as coparcener. written consent of all partiesis necessary.

Secondly, coparcenary undivided property in specie (PlotNo. 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 thecompromise petition producing the agreement.

The Variance noted is as follows-

(a) The compromise petition takes in consideration yet anotherproperty already purchased by Defendant No. 2 by her ownincome (Schedule property) which was not part ofcompromise agreement.

(b) The sketch map appended to the petition shows plot no.1086 and 1085 which for part of plot No. 141 instead of plotno. 140 mentioned in clause 3 of compromise agreement, anddoes not indicate any consensus ad idem, therefore, theexecution of the compromise agreement becomesunenforceable.

(c) The species of suit property, which was given/provided toDefendant no.2 in clause 3 (page 141) of agreement waschanged to will be allotted to her in final decree proceeding.

(d) The payment of Rs. 12000 which was to be deposited tocourt 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 inagreement whereas definite clause was inserted in thecompromise petition.

(f) The easement rights to property of Defendant No. 2 wererecognised in agreement and later in petition was altered tothat Defendant No. 2 along with others have to file and takesteps to easement rights for which the Defendant 1 shall notobject.

(h) The agreement provided that the defendant no. 2 shallsign the compromise petition which was later altered to signingand swearing the affidavit in compromise petition.

Fourthly, the judgment dated 01.08.2000 of the first appellatecourt accepting the compromise does not make allotment of

Athe property allotted in specie to the Defendant No. 2. Thefirst appellate court has proceeded on the wrong premise thatthe Defendant No. 2 has surrendered her rights to theDefendant No. 1. The first appellate court was further wrongin specifically noting that the compromise agreement does notcause any prejudice to the rights of the plaintiff and thereforeBcan be given effect.

Fifthly, the compromise agreement was entered into bybeckoning smaller share to the Defendant No. 2, while shehas larger share in view of Vineeta Sharma (supra). Theconsideration for the alleged compromise/settlement wasCtherefore inadequate and whole agreement has to fall to theground due to changed and supervening circumstanceseffectuated by change in law.

Lastly, even otherwise, the allotment of co-ownershipproperty in specie to one coparcener cannot be modified inDa preliminary decree. Moreover, under Hindu Law, the gift/renunciation/relinquishment or alienation by one coparcenerof his undivided coparcenary interest to another coparcenerwithout consent of other coparceners is void.”

93. It is now well settled that under Order XXIII Rule 3 of theECPC as it now stands, when claim in suit has been adjusted wholly orin part by any lawful agreement or compromise, the compromise mustbe in writing and signed by the parties and there must be completedagreement between them. To constitute an adjustment, the agreementor compromise must itself be capable of being embodied in decree.F(See: Gurpreet Singh v. Chatur Bhuj Goel, (1988) 1 SCC 270.)

94. Indisputably, in the case on hand, the plaintiff has not put hersignature on the deed of settlement, which was produced before theHigh Court in first appeal. The Plaintiff has made herself very clear thatshe never joined in the settlement between her brother i.e., the DefendantGNo. 1 and her sister i.e., the Defendant No. 2. On this ground alone, thesettlement could be said to be unlawful, being without any written consentof all the parties. In suit for partition of joint property, decree byconsent 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:H

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

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

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

97. In Taraprasanna Sarkar and Another v. KalikamohanSarkar and Others reported in AIR 1924 Cal 80 Mookerjee and Rankin,JJ., held:—

“…There can be no compromise binding upon, all the partiesto partition suit until and unless all the parties have joinedin the compromise:…”

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

“The appeal was filed by defendant no. 1 before this Court.In this Appeal challenging the correctness of the decision ofthe learned Single Judge in F.A. No. 359/96 on the basis ofthe compromise petition dated 28.3.1991, which is flied andaccepted by him is not signed by defendant no.2 and the sameis signed by her advocate and not signed by the plaintiff andher counsel. Therefore, it is urged that the same is not legalcompromise as provided under Order 23, Rule 3, CPC andon behalf of defendant no.2 her advocate could not havesigned the compromise petition as she has not executed special‘vakalatnama’ giving the authorization in favour of her lawyerto compromise the matter between defendant no.1 and 2 Inthe First Appeal. Therefore, First Appellate Judge should nothave received the compromise petition and accepted the same.The acceptance of the compromise petition by the learnedSingle Judge should have entered between the partiesincluding the plaintiff. In support of the said legal contention,

reliance is placed by the learned counsel on behalf ofdefendant no.2 on the decisions of the apex Court in Ramasrey& Puspa Devi (supra). The compromise petition is in varianceto the schedule properties of the suit and, therefore, it isvoidable. The compromise was neither recorded by the first-appellate court at the timeof filing compromise petition inwriting, nor the parties were present in the court nor signedthe petition in court. Therefore, the alleged compromise cannotbe termed as compromise between the parties in relation tothe subject matter covered therein as the same is illegal forthe reason that it is opposed to Order 23, Rule 3, CPC. Hencethe learned Single Judge could not have accepted the same.In support of this contention, learned Single Judge had rightlyplaced reliance upon the decisions of the Hon’ble SupremeCourt In the case of Gurpreet Singh v. Chatur Bhuj Goel,AIR 1988 SC 400; and of this Court in the case of SanyasiJena and others v. Mina Jena and others, AIR 1984 Orissa213. Further the reliance placed by the learned counsel forthe defendant no.1 upon the judgment of Puspa Devi (supra)is distinguished by defendant no.2 counsel stating thatcompromise petition is being typed in English. Further thesame is not signed by defendantno.2. Defendant no.1 with aview to deprive allotment of share assigned in favour ofdefendant no.2 by the trial court in respect of the suit scheduleproperties in the absence of signing the compromise petitionby defendant no.2 and there is no special ‘vakalatnama’executed in favour of her lawyer, the said compromise petitionis unlawful and the same could not have been accepted bythe first appellate court In the Impugned judgment and-modified the trial court judgment. Therefore, the crossobjection/appeal filed by defendant no.2 has to be allowedby setting aside the compromise recorded by the first appellatecourt In the Impugned judgment by modifying trial courtjudgment in relation to the share of the defendant no.2 allottedin respect of the suit schedule properties. Having set asidethe said compromise, as recorded in the impugned judgmentof the First Appellate Court, the trial court judgment isrestored with regard to the share assigned by him in favour inof defendant no.2 In respect of suit schedule properties.

-Accordingly the crossobjection of the second defendant isallowed by answering the aforesaid point no.(iii) in her”favour.

(Emphasis supplied)

99. We are in complete agreement with the aforesaid findingsrecorded by the High Court in its impugned judgment and order whileallowing the cross-appeal.

100. The third question that arises for our consideration in contextwith the legality and validity of the settlement is whether the learnedadvocate appearing for the cross-objector i.e., Defendant No. 2 couldhave signed the compromise petition without an express consent. It is animperative duty of the Court to ascertain the genuineness and lawfulnessof the compromise deed. Indisputably, in the case on hand, the FirstAppellate Court had neither recorded the statements of the parties inthe Court nor had made any inquiry into the terms of the settlement. It isin such circumstances that the High Court in its impugned order hasobserved that the Compromise Petition was signed by the advocatewithout any express authority or without special vakalatnama executedin favour of the advocate. In fact, the authority was expressly curtailedin the compromise deed.

101. In the aforesaid context, we may refer to the decision of thisCourt in the case of Himalayan Cooperative Group Housing Societyv. Balwan Singh and Others reported in (2015) 7 SCC 373, moreparticularly, paras 22 to 33, which read thus:

“22. Apart from the above, in our view lawyers are perceivedto be their client’s agents. The law of agency may not strictly’-apply to the clientlawyers relationship as lawyers or agents,lawyers have certain authority and certain duties. Becauselawyers are also fiduciaries, their duties will sometimes bemore demanding than those imposed on other agents. The-authorityagency status affords the lawyers to act for the client-on the subjectmatter of the retainer. One of the most basic-principles of the lawyerclient relationship is that lawyers owefiduciary duties to their clients. As part of those duties, lawyersassume all the traditional duties that agents owe to theirprincipals and, thus, have to respect the client’s autonomy tomake decisions at minimum, as to the objectives of the

representation. Thus, according to generally accepted notionsof professional responsibility, lawyers should follow theclient’s instructions rather than substitute their judgment forthat of the client. The law is now well settled that lawyermust be specifically authorised to settle and compromise aclaim, that merely on the basis of his employment he has noimplied or ostensible authority to bind his client to acompromise/settlement. To put it alternatively that lawyerby virtue of retention, has the authority to choose the meansfor achieving the client’s legal goal, while the client has theright to decide on what the goal will be. If the decision inquestion falls within those that clearly belong to the client,the lawyer’s conduct in failing to consult the client or inmaking the decision for the client, is more likely to constituteineffective assistance of counsel.

23. The Bar Council of India Rules, 1975 (for short “the BCIRules”), in Part VI Chapter II provide for the “Standards ofProfessional Conduct and Etiquette” to be observed by allthe advocates under the Advocates Act, 1961 (for short “the1961 Act”). In the Preamble to Chapter II, the BCI Rulesprovide as follows:

“An advocate shall, at all times, comport himself in amanner befitting his status as an officer of the Court, aprivileged member of the community, and gentleman,bearing in mind that what may be lawful and moral for aperson who is not member of the Bar, or for member ofthe Bar in his non-professional capacity may still beimproper for an advocate. Without prejudice to thegenerality of the foregoing obligation, an advocate shallfearlessly uphold the interests of his client and in hisconduct conform to the rules hereinafter mentioned bothin letter and in spirit. The rules hereinafter mentionedcontain canons of conduct and etiquette adopted asgeneral guides; yet the specific mention thereof shall notbe construed as denial of the existence of others equallyimperative though not specifically mentioned.”

24. The Preamble makes it imperative that an advocate hasto conduct himself and his duties in an extremely responsible

manner. They must bear in mind that what may be appropriateand lawful for person who is not member of the Bar, orfor 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 anadvocate towards his client. Rules 15 and 19 of the BCI Rules,have relevance to the subject-matter and therefore, they areextracted below:

“15. It shall be the duty of an advocate fearlessly to upholdthe interests of his client by all fair and honourable meanswithout regard to any unpleasant consequences to himselfor any other. He shall defend person accused of crimeregardless of his personal opinion as to the guilt of theaccused, bearing in mind that his loyalty is to the law whichrequires that no man should be convicted without adequateevidence.

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

26. While Rule 15 mandates that the advocate must upholdthe interest of his clients by fair and honourable means withoutregard to any unpleasant consequences to himself or any other.Rule 19 prescribes that an advocate shall only act on theinstructions of his client or his authorised agent. Further, theBCI Rules in Chapter I of the said Section II provide that theSenior Advocates in the matter of their practice of theprofession of law mentioned in Section 30 of the 1961 Actwould be subject to certain restrictions. One of suchrestrictions contained in clause (cc) reads as under:

“(cc) Senior Advocate shall, however, be free to makeconcessions or give undertaking in the course of argumentson behalf of his clients on instructions from the junioradvocate.”

27. Further, the “Code of Ethics” prescribed by the BarCouncil of India, in recognition of the evolution inprofessional and ethical standards within the legal community,

provides for certain rules which contain canons of conductand etiquette which ought to serve as general guide to thepractice and profession. Chapter III of the said Code providesfor an “Advocate’s duty to the client”. Rule 26 thereundermandates that an “advocate shall not make any compromiseor concession without the proper and specific instructions ofhis/her client”. It is pertinent to notice that an advocate underthe Code expressly includes group of advocates and lawfirm whose partner or associate acts for the client.28. Therefore, the BCI Rules make it necessary that despitethe specific legal stream of practice, seniority at the Bar ordesignation of an advocate as Senior Advocate, the ethicalduty and the professional standards insofar as makingconcessions before the Court remain the same. It is expectedof the lawyers to obtain necessary instructions from the clientsor 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 exceptionto the necessity of an advocate obtaining instructions beforemaking any concession on behalf of the client before the court,this Court in Periyar & Pareekanni Rubber Ltd. v. State ofKerala [(1991) 4 SCC 195] has noticed the sui generis statusand the position of responsibility enjoyed by the AdvocateGeneral in regard to the statements made by him before thecourts. The said observation is as under: (SCC p. 209, para19)

“19. … Any concession made by the Government Pleaderin the trial court cannot bind the Government as it isobviously, always, unsafe to rely on the wrong or erroneousor wanton concession made by the counsel appearing forthe State unless it is in writing on instructions from theresponsible officer. Otherwise it would place undue andneedless heavy burden on the public exchequer. But thesame yardstick cannot be applied when the AdvocateGeneral has made statement across the Bar since theAdvocate General makes the statement with allresponsibility.”

(See: Joginder Singh Wasu v. State of Punjab [(1994) 1SCC 184] .)

30. The Privy Council in Sourendra Nath Mitra v. TarubalaDasi [(1929-30) 57 IA 133 : (1930) 31 LW 803 : AIR 1930PC 158] , has made the following two observations whichhold relevance to the present discussion: (IA pp. 140-41)

“Two observations may be added. First, the implied authorityof counsel is not an appendage of office, dignity added bythe courts to the status of barrister or advocate at law. It isimplied in the interests of the client, to give the fullestbeneficial effect to his employment of the advocate. Secondly,the implied authority can always be countermanded by theexpress directions of the client. No advocate has actualauthority to settle case against the express instructions ofhis client. If he considers such express instructions contraryto 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. IndianCharge Chrome Ltd. [(1994) 2 SCC 155] )

31. Therefore, it is the solemn duty of an advocate not totransgress the authority conferred on him by the client. It isalways better to seek appropriate instructions from the clientor his authorised agent before making any concession whichmay, directly or remotely, affect the rightful legal right of theclient. The advocate represents the client before the court andconducts proceedings on behalf of the client. He is the onlylink between the court and the client. Therefore hisresponsibility is onerous. He is expected to follow theinstructions of his client rather than substitute his judgment.

32. Generally, admissions of fact made by counsel arebinding upon their principals as long as they are unequivocal;where, however, doubt exists as to purported admission,the court should be wary to accept such admissions until andunless the counsel or the advocate is authorised by hisprincipal to make such admissions. Furthermore, client isnot bound by statement or admission which he or his lawyerwas not authorised to make. lawyer generally has no implied

Aor apparent authority to make an admission or statementwhich would directly surrender or conclude the substantiallegal rights of the client unless such an admission or statementis clearly proper step in accomplishing the purpose forwhich the lawyer was employed. We hasten to add neither theclient nor the court is bound by the lawyer’s statements orBadmissions as to matters of law or legal conclusions. Thus,according to generally accepted notions of professionalresponsibility, lawyers should follow the client’s instructionsrather than substitute their judgment for that of the client. Wemay add that in some cases, lawyers can make decisionsCwithout consulting the client. While in others, the decision isreserved for the client. It is often said that the lawyer canmake decisions as to tactics without consulting the client, whilethe client has right to make decisions that can affect hisrights.

D33. We do not intend to prolong this discussion. We mayconclude by noticing famous statement of Lord Brougham:

“an advocate, in the discharge of his duty knows but oneperson in the world and that person is his client”. [Ed.:The statement was made by Mr Henry Brougham, as HisELordship then was, while defending Queen Caroline in theHouse of Lords. See The Whole Proceedings on The Trialof Her Majesty, Caroline Amelia Elizabeth, Queen ofEngland, for “Adulterous Intercourse” with BartolomeoBergami, Vol. II, p. 2 containing Her Majesty’s Defence,printed and published by John Fairburn, Broadway,FLudgate Hill (1820).]”

(Emphasis supplied)

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

“37.We may, however, hasten to add that it will be prudentfor counsel not to act on implied authority except whenwarranted by the exigency of circumstances demandingimmediate adjustment of suit by agreement or compromise andthe signature of the party cannot be obtained without undueH

delay. In these days of easier and quicker communication,such contingency may seldom arise. wise and carefulcounsel will no doubt arm himself in advance with thenecessary authority expressed in writing to meet all suchcontingencies in order that neither his authority nor integrityis ever doubted. This essential precaution will safeguard thepersonal 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 speakingthrough Justice Ramaswami (as His Lordship then was) in the case ofGovindammal v. Marimuthu Maistry and Others reported in AIR1959 Mad 7 had sounded the note of caution observing as under:

“5. … The decisions appear to be fairly clear that even incases where there is no express authorization to enter into acompromise, under the inherent authority impliedly given tothe Vakil he has power to enter into the compromise on behalfof his client. But in the present state of the clientele worldand the position in which the Bar now finds itself and in theface of divided judicial authority and absence of statutorybacking prudence dictates that unless express power is givenin the vakalatnama itself to enter into compromise, inaccordance with the general practice obtaining specialvakalatnama should be filed or the specific consent of theparty to enter into the compromise should be obtained. If anendorsement is made on the plaint etc., it would be better toget the signature or the thumb impression of the party affixedthereto, making it evident that the party is aware of what isbeing done by the Vakil on his or her behalf.”

104. Thus, in view of the aforesaid discussion, we hold that theHigh Court committed no error in holding that the settlement betweenthe 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 affirmedby the High Court is modified to the extent that the daughters

are entitled to 1/3[rd] share in all the properties scheduled inthe plaint i.e., ancestral and self-acquired properties of LateShri Kumar Sahoo. The Trial Court shall modify the decreeaccordingly.

(ii)As we have held that the settlement between the OriginalBDefendant Nos. 1 and 2 resply was not in accordance withlaw, the Appellants herein will not be entitled to the shareof the Original Defendant No. 2.

(iii)The Appellants shall be entitled to only their 1/3[rd] share inthe suit properties.

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

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

D107. This litigation by now is almost four decades old. The OriginalPlaintiff as on date is almost 85 years of age. In such circumstances, theTrial Court shall draw the final decree within period of three monthsfrom the date of receipt of the certified copy of this judgment and order.

108. Parties to bear their own costs.

E109. Pending applications, if any, also stand disposed of.

Divya Pandey(Assisted by : Shevali Monga, LCRA)

Appeals dismissed.