Prasanta Kumar Sahoo & Ors. v. Charulata Sahu

PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU & ORS. (Civil Appeal No. 2913-2915 of 2018) MARCH 29, 2023 [A. S. BOPANNA AND J. B. PARDIWALA, JJ.] Hindu Succession Act, 1956– Amendment in law governi ng the parties – Partition suit – s.6, 1956 Act was amend ed by 2005 Amendment, before the conclusion of the final decree proce edings – Effect of – Held: Partition suit is required to be decid ed in stages and the same can be regarded as fully and completely decided only when the final decree is passed – Thus, as the law g overning the parties was amended before the conclusion of the fi nal decree proceedings, the party benefitted by such amendment (l ike the two daughters in the present case) can make a request to the Trial Court to take cognizance of the Amendment and give effect to the sam e – Plaintiff entitled to 1/3 rd share in all the properties of her late father scheduled in the plaint – Preliminary decree drawn by the Trial Court as affirmed by the High Court modified to the sa id extent – Hindu Succession (Amendment) Act, 2005. Hindu Succession Act, 1956 – s.6 as amended by 2005 Amendment – Interpretation of, in Vineeta Sharma case – Position of law pre and post the amendment – Discussed – Hindu Success ion (Amendment) Act, 2005. Code of Civil procedure, 1908 – O.XXIII, r.3; Or.XL I, r.22, o.XLIII, r.1-A (2) – Cross Appeal – Maintainability of – H eld: Right of appeal is the creature of statute – The right to prefer cross-objection partakes of the right to prefer an appeal – A cr oss-appeal is the exercise of substantive right of appeal and only the procedure varies – Cross-appeal objector is entitled u/o.XLI, r.22 r/w O.XLIII, r.1-A (2) to make good the submission that she was entitled i n law to question the legality and validity of the settlemen t agreement recorded u/ O.XXIII, r.3 by way of a cross-appeal – Thus, in the present case, the cross-appeal filed by the Original Def endant No.2, questioning the legality and validity of the settle ment was maintainable in law. Code of Civil Procedure, 1908 – Or.XXIII, r.3 – Sett lement Agreement without written consent of all the parties – V alidity of –

Held: Under Or.XXIII, r.3, when a claim in suit has been adjusted wholly or in part by any lawful agreement or compro mise, the compromise must be in writing and signed by the parties and there must be a 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 , it was unlawful, being without written consent of all the part ies – In a suit for partition of joint property, a decree by c onsent amongst only some of the parties cannot be maintained – Hence, set tlement between the Defendant no.1 and 2 was not in accordance with law. Practice and Procedure – Compromise petition signed by advocate without express consent – Duty of Court – Disc ussed. Dismissing the appeals, the Court HELD: 1. A three-Judge Bench of this Court doubted the correctness of the dictum as laid in Prakash as there was an apparent conflict between the dictum as laid in Prakash and Danamma . The question concerning the interpretation of Section 6 of Act 1956 was referred to a larger Bench. The larger Ben ch ultimately settled the position of law in Vineeta Sharma . Daughters are entitled to 1/3rd share in all the properties as sch eduled in the plaint. The same would be in accordance with the dict um as laid in Vineeta Sharma , while passing the final decree. By virtue of the preliminary decree passed by the Trial Court, whic h was confirmed by the Division Bench of the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. As the law governing the parties has been amended before the conclusion of the final decree procee dings, the party benefitted by such amendment (like the two d aughters in the case on hand) can make a request to the Trial Court to take cognizance of the Amendment and give effect to the same. No error not to speak of any error of law could be said to have & ORS. been committed upon Courts below, while determining the shares of the parties. The only thing that needs to be done n ow is to give effect to the amendment in the provisions of Section 6 of the 1956 Act and redetermine the shares of the parties accordin gly. The Plaintiff is entitled to 1/3rd share in all the prop erties of her Late father. The issue whether all the properties were ancestral as raised on behalf of the Appellants pale into ins ignificance. [Paras 63, 64, 80 and 82][56-A-B; 67-B-D, F] Vineeta Sharma v. Rakesh Sharma and Others (2020) 9 SCC 1 : [2020] 10 SCR 135 – relied on. Prakash and Others v. Phulavati and Others (2016) 2 SCC 36 : [2015] 12 SCR 579; Danamma alias Suman Surpur and Another v. Amar and Others (2018) 3 SCC 343 : [2018] 2 SCR 553 – referred to.

2.1 Whether the High Court was justified in allowing t he cross-appeal filed by the Original Defendant No. 2 on the g round that the settlement arrived at between the Appellants (Defendant No 1 and Defendant No. 2) was not valid and binding under Order XXIII Rule 3 of the CPC. Right of appeal is the creature of statute. There i s no inherent right of appeal. No appeal can be filed, h eard or determined on merits unless the statute confers rig ht on the appellant and power on the Court to do so. The right to pr efer cross-objection partakes of the right to prefer an appeal. The learned counsel appearing for the Defendant No. 2 (Responde nt No. 2 herein) that a cross-appeal under Order XLI Rule 22 of the CPC is as effective as a regular first appeal and the same would sustain, even if, the regular first appeal is dismissed or withdrawn. A cross-appeal is the exercise of substantive right of ap peal and only the procedure varies. The cross-appeal objector is entitled under Order XLI Rule 22 of the CPC read with Order XLIII Rule 1-A (2) of the CPC, to make good the submission that she was entitled in law to question the legality and va lidity of the settlement agreement recorded under Order XXIII Rul e 3 of the CPC by way of a cross-appeal. The cross-appeal filed by the Original Defendant No. 2, questioning the legality and validi ty of the 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, National Insurance Company Limited and Another (2020) 11 SCC 316 : [2020] 3 SCR 498; Banwari Lal v. Chando Devi (Smt) and Another (1993) 1 SCC 581 : [1992] 3 Suppl. SCR 524; Vipan Aggarwal and Another v. Raman Gandotra and Others 2022 SCCOnLine SC 1357 – relied on.

2.2 Under Order XXIII Rule 3 of the CPC as it now stan ds, when a claim in suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed agreement between them. Indisputably, in the case on hand , the plaintiff has not put her signature on the deed of settlement, which was produced before the High Court in first appeal. The Plaintiff has made herself very clear that she never joined i n the settlement between her brother i.e., the Defendant No. 1 and her sister i.e., the Defendant No. 2. On this ground alone, the settlement could be said to be unlawful, being without any written consent of all the parties. In a suit for partition of joi nt property, a decree by consent amongst some only of the parties cannot be maintained. [Paras 93, 94][76-E-G] Gurpreet Singh v. Chatur Bhuj Goel (1988) 1 SCC 270 : [1988] 2 SCR 401 – relied on.

¶3The third question that arises for consideration in context with the legality and validity of the settlement is whether the learned advocate appearing for the cross-objector i.e., Defenda nt No. 2 could have signed the compromise petition wit hout an express consent. It is an imperative duty of the Court to ascertain the genuineness and lawfulness of the compromise de ed. Indisputably, in the case on hand, the First Appellate C ourt had neither recorded the statements of the parties in the Court nor had made any inquiry into the terms of the settleme nt. It is in such circumstances that the High Court in its impugn ed order & ORS. has observed that the Compromise Petition was signe d by the advocate without any express authority or without s pecial vakalatnama executed in favour of the advocate. In fact, the authority was expressly curtailed in the compromise dee d. The High Court committed no error in holding that the set tlement between the Defendant Nos. 1 and 2 was unlawful. [Paras 100, 104][79-C-D; 85-G]

¶4The preliminary decree drawn by the Trial Court as affirmed by the High Court is modified to the extent that the daughters are entitled to 1/3rd share in all the pr operties scheduled in the plaint i.e., ancestral and self-acquired properties of Late Shri Kumar Sahoo. The Trial Court shall mod ify the decree accordingly. The settlement between the Original Defendant Nos.1 and 2 was not in accordance with la w, the Appellants herein will not be entitled to the share of t he Original Defendant No. 2. Appellants shall be entitled to only their 1/3rd share 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] 4 SCR 616 – relied on. Bai Chanchal and Others v. Syed Jalaluddin and Others

(1970) 3 SCC 124 : [1971] 2 SCR 171; Byram Pestonji Gariwala v. Union Bank of India and Others (1992) 1 SCC 31 : [1991] 1 Suppl. SCR 187; D.S. Lakshmaiah and Another v. L. Balasubramanyam and Another

(2003) 10 SCC 310 : [2003] 3 Suppl. SCR 13; Jineshwardas (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; Ganduri Koteshwaramma and Another v. Chakiri Yanadi and Another (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 Ind Cas 210 (Cal); Vir Singh and Others v. Kharak Singh and Others AIR 1925 Lah 280; Taraprasanna Sarkar and Another v. Kalikamohan Sarkar and Others AIR 1924 Cal 80; Govindammal v. Marimuthu Maistry and Others AIR 1959 Mad 7 – referred to. Case Law Reference [1971] 2 SCR 171 referred to Para 28 (i) [1991] 1 Suppl. SCR 187 referred to Para 28 (ii) [2003] 3 Suppl. SCR 13 referred to Para 28 (iii) [2003] 4 Suppl. SCR 179 referred to Para 28 (iv) [2006] 3 Suppl. SCR 370 referred to Para 28 (v) [2011] 12 SCR 968 referred to Para 30, 38, 59 & 60 [2015] 12 SCR 579 referred to Para 61, 63 [2018] 2 SCR 553 referred to Para 61, 62 & 63 [2000] 3 Suppl. SCR 153 referred to Para 77 [2020] 10 SCR 135 relied on Para 80 [2020] 3 SCR 498 relied on Para 85 [1992] 3 Suppl. SCR 524 relied on Para 89 [1988] 2 SCR 401 relied on Para 93 [2015] 4 SCR 616 relied on Para 101 CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2913-2915 of 2018. From the Judgment and Order dated 05.05.2011 of the High Court of Orissa at Cuttack in AHO No. 133 of 2000 and MC No. 24 of 2007. R. Basant, Sr. Adv., Ashok Panigrahi, Ms. Geetanjal i Das Krishnan, R. Chanrdachud, Ms. Nikita Jaydevan, Nabab S ingh, D. Venkatakrishna, Advs. for the Appellants. & ORS. V. Chitambaresh, Sr. Adv., Mrs. B. Sunita Rao, Gunmaya Mann, Shibashish Misra, Anurag, Sonal Gupta, C. Govind Venugopal, Advs. for the Respondents. The Judgment of the Court was delivered by

J. B. PARDIWALA, J.

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

¶2Both the captioned appeals are at the instance of the legal representatives and heirs of the original defendant No. 1 (Late Shri Prafulla Sahoo S/o Kumar Sahoo) and are directed against the judgment, order and decree passed by a Division Bench of the High C ourt of Orissa at Cuttack dated 5.05.2011 in AHO No. 133 of 2000 by which the Division Bench of the High Court dismissed the Letters Patent Appeal filed by the appellants herein thereby affirming the judgment and decree of partition passed by the Trial Court in the Title Suit No. 348 of 1980 instituted by the original plaintiff (Respondent No. 1 herein) and on the other hand allowed the cross-objections filed by the Original Defendant No. 2, thereby setting aside and declaring the compromise recorded by the First Appellate Court entered into between the Late Prafulla Sahoo and his sister i.e., the Defendant No. 2 in the suit to be invalid. FACTUAL MATRIX

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

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

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

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

¶7The Respondent No. 1 (herein Original Plaintiff) prayed for the following reliefs in the title suit No. 348 of 1980 referred to above: “(i) Let a preliminary decree be passed for partition in r espect of the plaintiff’s 1/3 rd share in schedule ‘A’ to ‘F’ and the plaintiff be put in specific possession of the same on a separate allotment being curved out in final decree proceedi ng by appointment of Civil Court Survey knowing commissioner and a decree for mesne profit be passed against Defendant No. 1 from 1977 till the date of the suit and from the date of suit t ill the decree is made final and the share of Defendant No. 1 in the suit properties be charged for payment of the same.

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

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

(iv) Let a decree be passed for such other relief t hat the plaintiff is ultimately found entitled in his favour again st the Defendants. DESCRIPTION OF THE PROPERTIES SCHEDULE-A

¶1Dist-Cuttack, S. R. Cuttack, Village-Chauliaga nj, P.S. No. 213. P.S. Madhupatna Khata No. 34, plot No. 1088 Area Ac. 0.465 dec. Khata No. 32, Plot No. 1088. KhataNo. 33 Plot No. 1086 Ac. 142. dec. Khata No. 260 Plot No. 1087 Ac. 0.502 dec. Plot No. 818 Ac 0.266 dec. Khata No. 264 Plot No. 1090 Ac 0.012 dec. --------------------------- Ac 1.508 dec. (A.V. Rs. 1,03,930/-) SCHEDULE- ‘B’ Mouza-Paisa (Hal - Gandarpur) Khata No. 108 Plot No. 110 Ac. 0.48 dec. Khata No. 106 Plot No. 97 Ac. 0.89 dec Khata No. -do-Plot No. 98, Ac. 0.09 dec. Plot No. 99 Ac. 0.14 dec Plot No. 100 Ac. 0.37 dec. Khata No. 107 Plot No. 95 Ac. 0. 17 dec. Khata No. 184 Plot No. 101 Ac. 0.45 dec. Khata No. 114 Plot No. 199 Ac.0.21-½ dec. Khata No. 8 Plot No. 96 Ac. 0.10 dec. ----------------- Ac. 2.90-½ dec. (.A.V. RS. 2850/-) SCHEDULE -’C’ District-Cuttack. S.R. Cuttack, Mouza-Rajahans, Khata No. 855, Plot No. 316. Ac. 0.18 dec Khata No. 228 Plot No. 535 Ac. 0.08 dec. Plot No. 539 Ac. 0.02 dec Plot No. 548 Ac. 0.03 dec. Plot No. 553 Ac. 0.41 dec. ----------------- Ac. 0.72 dec. (A.V. RS. 720/-) SCHEDULE -’D’ Mouza-Safipur, P.S. Sadar, Cuttack, .... A.V .... Rs. SCHEDULE -’E’ Mouza-Dian Rajhans Khata No. 1 Plot No. 73Ac. 0.13 dec. Plot No. 76 Ac. 0.12 dec -------------- Ac. 0.25 dec Khata No. 2. Plot No. 85 Ac. 0.12 dec. Plot No. 87 Ac. 0.14 dec Plot No. 93 Ac. 0.18 dec. Plot No. 70 Ac. 0.19 dec. Plot No. 72 Ac. 0.29 dec. Plot No. 104 Ac. 0. 19 dec. ------------------- Ac. 1.10 dec . . ... valued at Rs. 205/- Khata No. 18 Plot No. 128 Ac. 0.50 Plot No. 135 Ac. 27.59 dec Plot No. 179 Ac. 1.93 dec Plot No. 180 Ac. 2.22 dec Plot No. 181 Ac. 10.18 dec Plot No. 127 Ac. 2.13 dec. Plot No. 130 Ac. 1.23 dec. Plot No. 101/186 Ac. 0.24 dec. Plot No. 132 Ac. 0.35 dec. Plot No. 132 Ac. 0.35 dec. Plot No. l37 Ac. 0.20 dec. Plot No. 136 Ac. 0.26 dec. Plot No. 99/185 Ac. 0.42 dec. No. 47.25 dec. valued at Rs. 450/- Khata No. 19 Plot No. 75 Ac. 0.31 dec Plot No. 64 Ac. 0.22 dec. Plot No. 74 Ac. 0.30 dec. Plot No. 79 Ac. 0.15 dec. Plot No. 34 Ac. 0.15 dec. Plot No. 38 Ac. 0.11 dec. Plot No. 69 Ac. 0.23 dec. Plot No. 68 Ac. 0.37 dec. ------------------ Ac. 1.74 dec. Valuation Rs. 350/- Khata No. 21 Plot No. 145 Ac. 0.68 dec. Plot No. 71 Ac. 0.30dec Plot No. 58 Ac. 0.22 dec. Plot No. 182 Ac. 0.03 dec. Plot No. 57 Ac. 0.21 dec. Plot No. 194 Ac. 0.20 dec. Plot No. 107 Ac. 0.11 dec. Plot No. 139 Ac. 0.25 dec. Plot No. 83 Ac. 0.06 dec. -------------------- Ac. 3.06 dec Valuation Rs. 595/- SCHEDULE -’F’ Mouza-Nagagajpur, P.S. Sadar, S.R. Cuttack, Dist-Cu ttack. Khata No. 61. Plot No. 51 Ac. 0.080 dec. Plot No. 54 Ac. 0.023dec. Plot No. 57 Ac. 0.012 dec. Plot No. 61 Ac. 0.035 dec. Plot No. 62 Ac. 0.22dec. Plot No. 91 Ac. 0.006 dec. Plot No. 93 Ac. 0.007 dec. Plot No. 108 Ac. 0.044 dec. ----------------- Ac 1.89 decimals . . . . . . . . . . Rs/ 1.890/- Agricultural and other lands Ac. 60.79 dec. ...Valued at Rs. 1.20, 610/- VERIFICATION.”

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

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

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

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

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

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

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

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

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

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

(11) To what relief the parties are entitled? The trial court decreed the suit and observed that the plaintiff had one-sixth share in the ancestral property and one-t hird share in the separate property. The said decree is being challenged by Defendant No. 1.”

¶9The suit between the parties was adjudicated and vide the judgment and order dated 30.12.1986 the Civil Judge drew a preliminary decree as under: “ ORDER The suit is decreed preliminarily on contest against defendant No: 1 with costs an D-2 without cost. Plaintiff is entitled t o 2 annas 8 pies (1/6 th ) share and 1/3 rd share in respect of ancestral and self acquired properties and super st ructures thereon (Houses and buildings) respectively of Late Kumar Charan Sahu out of the suit properties. She is also entitled t o the same share in respect of mense profits thereof, from the date of institution of the suit. Defendant No-2 is also entit led to 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 in ancestral and self acquired properties respectively and superstructure thereon of Late Kumar Charan Sahu and mense profits thereof. An Amin Commissioner is to be depu ted for effecting partition on the above basis who is the final decree proceeding will apportion shares on above basis aft er ascertaining the details of ancestral and self acqu ired properties an superstructures thereon and also the qua ntum of mense profits in the light of indications and finding r eached on different issues discussed in the judgment. Afte r ascertainment of such share plaintiff and Defendant No:2 are to be put in possession of such properties that would be allotted to them separately in consequence of the final decree proceeding. Hearing fee at contested useable.”

¶10 Thus, the Trial Court directed that:

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

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

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

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

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

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

¶13The learned Single Judge of the High Court, while disposing of the F.A. No. 359 of 1986 observed as under: “4. In this appeal, it is first contended that certain pr operties having been given to the daughters by the father during his life time and certain properties having been gifted to them at the time of their marriage and certain other properties hav ing been purchased by the father in the names of the tw o daughters, namely plaintiff and Defendant No. 2, th ey are not entitled to any separate share after death of the father.

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

¶6The learned counsel for the appellant also contended that some properties were self-acquired properties of De fendant No. 1 himself. A perusal of the written statement i ndicates that no such specific case had been made out in the wr itten statement, nor any such material is available on reco rd. In absence of any evidence worth the name, it is difficult to accept such a contention raised by the appellant.

¶7The learned counsel appearing for the appellant then contended that during pendency of the appeal, a compromise has been effected between the present appellant and Respondent No. 2, wherein Respondent No.2 has given up her share in favour of Defendant No. 1. Since such compromise is otherwise lawful and it does not prejudicia lly affect the right of the plaintiff, it can be given ef fect to and the decree of the trial court is to be modified accordingl y.”

¶8Thus, though all other contentions of the appellant are n ot acceptable, in view of the compromise the decree of the t rial court is modified to the extent that Defendant No. 1 shall also be entitled to the share of Respondent No. 2. In other words, he would be entitled to 5/6th share in the ancestral property and 2/3 rd share in the separate properties as determined by the trial court. The decree of the trial court is modified to t he above extent.

¶9It appears that during the pendency of the appeal, receiver s had been appointed at different times and presently Defendant No. 1-appellant is continuing as the receiver. It further appears that certain amounts have been deposited in this Court which have been kept in fixed deposit. The fixed deposit in this court shall be renewed from time to time for appropriate period t o fetch maximum interest. The amount which is not yet kept in fixed deposit shall also be kept in fixed deposit i n similar manner so that the amount can be disbursed in accorda nce with the direction to be made in the final decree a fter the final decree proceedings are over. If the parties do not c ome to any amicable arrangement, the plaintiff or Defendant No. 1 may initiate the final decree proceeding. The tri al court after making necessary adjustment towards any justi fied expenditure, et cetera, shall pass a direction rega rding disbursement of the amount in accordance with the s hares now indicated in this judgment. The receiver shall hencef orth act under the direction of the trial court and all n ecessary obligation relating to accounting and maintenance o f the properties etc. shall be determined by the trial cour t and if any deposit is required to be made by the receiver, th e same shall be made in the trial court which shall make s imilar arrangements regarding fixed deposits. Applications for removal of the receiver or for imposing any fresh condi tions can be made before the trial court which is free to deal with all such applications.” (Emphasis supplied)

¶14The Defendant No. 1 (Appellants herein) continued with the litigation by filing the Letters Patent Appeal under Chapter VI of the Rules of High Court of Orissa, 1948. The Letters Patent Appea l was filed essentially on the ground that the learned Single Judge of the High Court had failed to correctly adjudicate the issue whether s ome of the properties as mentioned in the schedule to the plaint were self-acquired properties of Late Shri Kumar Sahoo or all the properties were ancestral properties.

¶15The Defendant No. 1 (Appellants) went in appeal before the Division Bench of the High Court essentially on the ground that all the properties were ancestral as the same are derived out of the same nucleus of the existing ancestral properties. The appeal before the Division Bench was registered as the Appeal bearing No. AHO No. 133 of 2000.

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

¶17In the Letters Patent Appeal filed by the Appellants he rein, the Court addressed itself on the following points of determination: “(i) whether the findings and reasons recorded on t he contentious issues by the learned trial judge are e ither erroneous or error in law warranting interference b y this Court in exercise of its power?

(ii) whether the first appellate judge in not deali ng with the grounds urged by the first defendant by framing approp riate point on the findings recorded on the contentious issue s by the learned trial court, this court requires interf erence with the impugned judgment in this appeal though, this C ourt’s jurisdiction in this Letter Patent Appeal is also analogous to the first appellate court?

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

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

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

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

¶19In such circumstances referred to above, the Appellants (Legal heirs of the Original Defendant No. 1) are here before thi s Court with the present appeals. SUBMISSIONS ON BEHALF OF THE APPELLANTS

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

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

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

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

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

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

¶26Mr. Basant in support of his aforesaid submission invited the attention of this Court to the decision of this Court in the case of Vineeta Sharma v. Rakesh Sharma and Others reported in (2020) 9 SCC 1, more particularly, the observations in para 76 at page 58, whi ch reads thus: “76. It was argued that in case Parliament intended that the incident of birth prior to 2005 would be sufficient to confer the status of a coparcener, Parliament would need not have enacted the proviso to Section 6(1). When we read t he provisions conjointly, when right is given to the daug hter of a coparcener in the same manner as a son by birth, it bec ame necessary to save the dispositions or alienations, including any partition or testamentary succession, which had taken place before 20-12-2004 . A daughter can assert the right on and from 9-9-2005, and the proviso saves from invalid ation the above transactions.” (Emphasis supplied)

¶27Mr. Basant submitted that there was no good reason for the High Court to look into the validity and execution of the settlement deed between the Defendant Nos. 1 and 2 resply. If all the propert ies are considered to be ancestral, the Plaintiff is entitled to 1/6 th share of the total ancestral properties, while the Defendant No. 1 would be entitled to 5/6 th share of the total ancestral property. He submitted tha t in the event, it is determined that the J series properties (1 to 8 properties) are in fact self-acquired, then the Plaintiff is entitled to 1/6 th share of the ancestral property and 1/3 rd share of the self-acquired property, while the Defendant No. 1 would be entitled to 5/6 th share of the total ancestral property and 2/3 rd share of the self-acquired property.

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

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

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

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

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

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

¶29In such circumstances referred to above, Mr. Basant pra ys that there being merit in his appeals, the same may be allowed and the impugned judgment and order passed by the High Court be modified accordingly. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1 (ORIGINAL PLAINTIFF)

¶30Ms. B. Sunita Rao, the learned counsel appearing for the Respondent No. 1 (Original Plaintiff) vehemently submitted that no error not to speak of any error of law could be said to have be en committed by the High Court in passing the impugned judgment and decree. She submitted that in view of the decision of this Court in the case of Vineeta Sharma (supra) the Plaintiff is now entitled to 1/3 rd share in all the properties of Late Shri Kumar Sahoo, which were available at the time of filing of the suit. She submitted that in view of the de cision of this Court, in the case of Ganduri Koteshwaramma and Another v. Chakiri Yanadi and Another reported in (2011) 9 SCC 788, the preliminary decree can be awarded/altered or modified in the event of the changed circumstances, even if no appeal has been filed.

¶31The learned counsel further submitted that in view of t he amendment of 2005 to Section 6 of the Act 1956 and the decision of this Court in case of Vineeta Sharma (supra) the daughters are entitled to equal share with that of the son in the coparcenary prop erties. The Plaintiff being one of the daughters of Late Kumar Sahoo is entitled to a larger and equal share in the ancestral property and in such circumstances the decree now needs to be modified on account of the operation of law.

¶32The learned counsel submitted that the Plaintiff and Defendants are now each entitled to 1/3 rd share of both ancestral and self-acquired properties of Late Kumar Sahoo. While explaining the true import of the operation of the amended provision of Section 6(1) of the Act 1956, she submitted that the alienations before 20.12.2004 are permitte d but the property alienated would fall to the share of the co-parcener, who made the alienation, if no legal binding necessity is proved. The learned counsel pointed out that the Trial Court has held that alienation would be a part of the share of the Defendant No. 1. She submitted that any alienati on after the date of filing of the suit would be hit by the doctri ne of lis pendens . The alienation prior to the filing of the suit was considered by the Trial Court and specific finding in that regard has been recorded.

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

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

¶35In the written submissions filed by the learned counsel appearing for the Respondent No. 1, the defaults alleged to have been committed by the Defendant No. 1 as narrated in IA No. 190628 of 2022 has been highlighted as under: “1. Modification of the superstructures on suit prop erty without leave of the Court. (Relevant page 10-13 of IA)

¶2Dues with regard to suit properties: a. Water Bills - Rs. 51,478/- b. Revenue Tax - Rs. 80,733/- c. Electricity Bills - Rs.1,89,228.84 total Rs. 3,21,439.84 (Relevant page 14-15 of IA)

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

¶4Installation of 100 Kw Electric transformer on su it property after getting permission for different plo t. (Relevant Page 21 of IA)

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

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

¶36The learned counsel vehemently submitted that the Defendant No. 2 should be removed as a receiver forthwith and the Plaintiff should be appointed as the receiver of the properties. SUBMISSIONS ON BEHALF OF THE RESPONDENT NOS. 3, 4, 5, 7 AND 8 RESPLY (LEGAL HEIRS OF THE ORIGINAL DEFENDANT NO. 2)

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

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

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

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

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

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

¶38On the first issue, the learned Senior Counsel submitted that there is a concurrent finding on the nature of the suit properties recorded by all the three courts i.e., the Trial Court, the Single Judge of the High Court and the Division Bench of the High Court. He would submit that the Plaintiff as well as the Defendant No. 2 being daught ers and co-parceners are entitled to equal share in the ancestral properties as along with their brother i.e., the Defendant No. 1 (Appellant). He would submit that the law in this regard is now well settled as explained by this Court in the case of Vineeta Sharma (supra). Relying on the decision of this Court, in the case of Ganduri Koteshwaramma (supra) he submitted that even if no appeal has been filed by the Plaintiff and the Defendant, the shares will have to be determined in accordance with the amendment and the law as laid down in Vineeta Sharma (supra). Over and above the share reckoned in the alleged compromise in dispute, the Defendant No. 2 would be entitled to additional 1/6 th share in the ancestral property.

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

¶40The learned Senior Counsel also invited the attention of this Court to the provisions of Order XLIII Rule 1-A (2) of the CP C. He would submit that the cross-objector is entitled under Order XLI Rule 22 of the CPC read with Order XLIII Rule 1-A (2) of the CPC to contend in his or her cross-appeal that the alleged settlem ent deed or agreement should not have been reckoned as a valid compromise and recorded under Order XXIII Rule 3 of the CPC.

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

¶42Having heard the learned counsel appearing for the partie s and having gone through the materials on record, the following questions fall for our consideration:

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

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

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

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

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

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

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

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

(3) and 16 of the Constitution of India, sought inter alia to restrain practice of discrimination against women and made equal treatment of women a part of the fundamental rights guaranteed under the Constitution. In line with the above Constitutional objective, the Parliament enacted the Hindu Succession Act,1956 i.e. the Principal Act. This Act applies to all Hindus including Buddhists, Jains and Sikhs. It lays down a un iform and comprehensive system of inheritance and applies to all Hindus, whether governed by Mitakshara or Dayabhaga School of Hindu Law. However, Section 6 of the Principal Act as originally enacted retained substantially the Rule of passing of property in a coparcenary by survivorship, although it did give rights of testamentary disposition to Hindu males in respect of his properties including his coparcenary share. The erstwhile Section 6 of the Principal Act (pre-amended Section 6) interalia provided that the interest of a coparcener in the coparcenary property if not disposed of by Will under Section 30 of the Principal Act, would devolve in terms of pre-amended Section 6. The main part of pre-amen ded Section 6 provided that the right of male Hindu at the time of his deat h in the coparcenary property will devolve by survivorship. However, the proviso provided that if the deceased coparcener has any fema le relatives specified in Class I of the Schedule to the Act, then the prope rty will devolve in terms of pre-amended Section 6. The Explanation 1 provides that there would be notional partition immediately before his death so as to allocate the share in the coparcenary to the deceased coparcener.

¶49It is interesting to note that the Hindu Code Bill wanted to do away with the Mitakshara coparcenary completely. However, the same was opposed to and the erstwhile Section 6 was enacted in the Principal Act. Consequently, if a partition took place in the coparcenary property, then each male coparcener would get his share and the mother and wife/widow would not become a coparcener but would get a shar e in the coparcenary property. But a daughter would get no share in the coparcenary property. The daughter would only get a sha re as one of the heirs on the death of coparcener, out of the share of the deceased in the coparcenary property on notional partition, in view of proviso to pre-amended Section 8 of the Principal Act. In terms of Section 30 of the Principal Act, a Hindu male can dispose of his entire property including his interest in coparcenary property by testamentary di sposition/ Will and also in the process deprive his female heirs of any share. Making of Amendment Act, 2005

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

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

¶52The Law commission also observed that the Law o f Succession falls under Entry V of the List III (concurrent l ist) in VII Schedule of the Constitution. In view of Article 246 of the Constitution of India the laws made by the above mentioned five States, would stand repealed to the extent they are repugnant to the Princ ipal Act on amendment.

¶53On 20th December, 2004, the Hindu Succession Amendment Bill 2004 was introduced in the Rajyasabha, inter alia, seeking to amend the erstwhile Section 6 and doing away/omitting the erstwhile Section 23 of the Principal Act. “Statement of Objects and Reasons for amending the ‘Principal Act’ read as follows:- STATEMENT OF OBJECTS AND REASONS The Hindu Succession Act, 1956 has amended and codifi ed the law relating to intestate succession Hindus and gave ri ghts which were till then unknown in relation to women’s property. However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary exc ept to provide rules for devolution of the interest of a d eceased male in certain cases. The Act-lays down a uniform and comprehensive system of inheritance and applies, int er alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by th e Murumakkattayam, Aliyasantana and Nambudir laws.” The Act applies to every person who is a Hindu by 28 o f 72 SA.566.2011 religion in any of its forms or develop ments including a Virashaiva, a Lingayat or a follower of the Brahmo, Parathana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.

¶2Section 6 of the Act deals with devolution of inte rest of a male Hindu in coparcenary property and recognizes the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparc enary property without including the females in it means t hat the females cannot inherit in ancestral property as the ir male counterparts to. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. H aving regard to the need of render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

¶3It is proposed to remove the discrimination as co ntained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparce nary property as the sons have. Section 23 of the Act disenti tles a female heir to ask for partition in respect of a dwellin g house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also prop osed to omit the said section so as to remove the disability on femal e heirs contained in that section.”

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

¶5The Bill seeks to achieve the above objects.” (Emphasis supplied)

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

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

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

¶57Before averting to the rival submissions canvassed on either side, it would be apposite to reproduce the erstwhil e Section 6 as appearing in the Principal Act and the amended Section 6 of the Principal Act, as substituted by Section 3 of the Amendment Act for the sake of convenience. The pre-amended Section 6 of the Principal Act reads as under: “Section 6:- Devolution of interest in coparcenary property - when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mit akshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act; Provided that, if the deceased had left him surviving a fema le relative specified in class I of the Schedule or a male re lative specified in that class who claims through such fem ale relative, the interest of the deceased in the Mitak shara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1 - For the purposes of this section, the inte rest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately bef ore his death, irrespective of whether he was entitled to claim partition or not. Explanation 2 - Nothing contained in the proviso to this section shall be construed as enabling a person who has separ ated himself from the coparcenary before the death of the decea sed or any of his heirs to claim on intestacy a share in the intere st referred to therein.”

¶58The substituted Section 6 of the Principal Act as amended by the Amendment Act, 2005 which is in force w.e.f. 9.09.2005 reads as under: “6. Devolution of interest of coparcenary property.—

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shal l,

(a) by birth become a coparcener in her own right in the sam e manner as the son;

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

(c) be subject to the same liabilities in respect o f the said coparcenary property as that of a son, and any refere nce to a Hindu Mitakshara coparcener shall be deemed to inclu de a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affe ct or invalidate any disposition or alienation includi ng any partition or testamentary disposition of property wh ich had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entit led by virtue of sub-section (1) shall be held by her w ith the incidents of coparcenary ownership and shall be rega rded, notwithstanding anything contained in this Act or any ot her law for the time being in force in, as property cap able of being disposed of by her by testamentary disposition.

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

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

(b) the share of the pre-deceased son or a pre-dec eased daughter, as they would have got had they been alive at t he time of partition, shall be allotted to the survivin g child of such pre-deceased son or of such pre-deceased daugh ter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, sha ll be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the cas e may be. Explanation. — For the purposes of this sub-sectio n, the interest of a Hindu Mitakshara coparcener shall be de emed to be the share in the property that would have been allotted to him if a partition of the property had taken pla ce immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson f or the recovery of any debt due from his father, grandfather or gre at-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grands on to discharge any such debt: Provided that in the case of any debt contracted be fore the commencement of the Hindu Succession (Amendment) Ac t, 2005, nothing contained in this sub-section shall affect —

(a) the right of any creditor to proceed against th e son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfa ction of, any such debt, and any such right or alienation sha ll be enforceable under the rule of pious obligation in t he same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.—For the purposes of clause (a), the expres sion “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as th e case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a parti tion, which has been effected before the 20th day of Dece mber, 2004.” Explanation.- For the purposes of this section “par tition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 190 8) or partition effected by a decree of a court.”

¶59Before we proceed to discuss the dictum, as laid by this Court in Vineeta Sharma (supra) we must look into the decision of this Court in the case of Ganduri Koteshwaramma (supra). In Ganduri Koteshwaramma (supra) this Court, in paras 11, 12, 13 & 14 resply, observed as under: “11. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 9-9-2005. The legislature has now conferred substantive right in favour of the dau ghters. According to the new Section 6, the daughter of a coparcen er becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on a nd from 9-9-2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had be en a son.

¶12 The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara law, by vir tue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section

(1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) whe re the disposition or alienation including any partition has tak en place before 20-12-2004; and (ii) where testamentar y disposition of property has been made before 20-12-2004. Sub-section (5) of Section 6 leaves no room for dou bt as it provides that this section shall not apply to the partition w hich has been effected before 20-12-2004. For the purpos es of new Section 6 it is explained that “partition” mean s any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or part ition effected by a decree of a court. In light of a clear provi sion contained in the Explanation appended to sub-section (5 ) of Section 6, for determining the non-applicability of the sec tion, what is relevant is to find out whether the partition has been effected before 20-12-2004 by deed of partition dul y registered under the Registration Act, 1908 or by a decree o f a court. In the backdrop of the above legal positio n with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial cou rt on 19-3-1999 and amended on 27-9-2003 deprives the appellants of the benefits of the 2005 Amendment Act although final decree for partition has not yet been passed.

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

¶14 A preliminary decree determines the rights and int erests of the parties. The suit for partition is not dispo sed of by passing of the preliminary decree. It is by a final decr ee that the immovable property of joint Hindu family is parti tioned by metes and bounds. After the passing of the preli minary decree, the suit continues until the final decree is pa ssed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events a nd supervening circumstances occur necessitating chang e in shares, there is no impediment for the court to ame nd the preliminary decree or pass another preliminary decr ee redetermining the rights and interests of the parti es having regard to the changed situation.”

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

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

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

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

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

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

¶61Before the position of law came to be settled by this Court in Vineeta Sharma (supra) there were to decisions of this Court governing the rights of the parties: (i) Prakash and Others v. Phulavati and Others reported in (2016) 2 SCC 36 and (ii) Danamma alias Suman Surpur and Another v. Amar and Others reported in (2018) 3 SCC

¶343In Prakash (supra) it was held that Section 6 is not retrospective in operation and it would apply when both the coparcener and his daughter were alive on the date of commencement of the Amendment Act i.e.,

9.09.2005. Accordingly, the provisions of Section 6 were held to be prospective. In Danamma (supra) this Court held that the amended provisions of Section 6 conferred full rights upon the daughter coparcener. Any coparcener including a daughter could claim a partitio n in the coparcenary property.

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

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

¶64The larger Bench ultimately settled the position of la w in Vineeta Sharma (supra). The three-Judge Bench of this Court considered the following main questions amongst the others:

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

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

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

¶65In Vineeta Sharma (supra) (paras 60, 68, 69 and 129), the Court held that for the applicability of substituted Section 6 of the Hindu Succession Act, 1956, it is not necessary that the male coparcener must be alive on the date of commencement of the Amendment Act, 20 05 (i.e., 9.9.2005). Hence, it follows that the substituted Section 6 of the Hindu Succession Act, 1956 is not confined to cases where male coparcener dies after the commencement of the Amendment Act, 2005. Substituted Section 6 also applies to cases where male coparcener had already died prior to the commencement of the Amendment Act, 2005.

¶66The Court explained the difference between prospective statute, retrospective statute and retroactive statute. It has b een observed in para 61: “61. The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested ri ghts acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or s tatus that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended Section 6, since the right is give n by birth, that is, an antecedent event, and the pro visions operate concerning claiming rights on and from the date of Amendment Act.” (Emphasis supplied)

¶67Interpreting sub-section (1) of substituted Section 6 of the Act 1956, the Court opined in para 60 as under: “60. The amended provisions of Section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) ma kes daughter by birth a coparcener “in her own right” and “i n the same manner as the son”. Section 6(1)(a) contai ns the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6 (1)(b) confers the same rights in the coparcenary property “as she would have had if she had been a son”. The conferra l of right is by birth, and the rights are given in the same mann er with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Th ough the rights can be claimed, w.e.f. 9-9-2005, the provisions a re of retroactive application ; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law sh all be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has p rovided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the pro perty or partition which has taken place before 20-12-2004, t he date on which the Bill was presented in the Rajya Sabha, shall not be invalidated. ” (Emphasis supplied)

¶68The Court further observed in para 68 as follows: “68. Considering the principle of coparcenary that a pe rson is conferred the rights in the Mitakshara coparcenary by birt h, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son. The expression used in Section 6 is that she b ecomes coparcener in the same manner as a son. By adoption al so, the status of coparcener can be conferred. The conc ept of uncodified Hindu law of unobstructed heritage has been gi ven a concrete shape under the provisions of Sections 6 (1)(a) and 6(1) (b). Coparcener right is by birth. Thus, it is n ot at all necessary that the father of the daughter should be liv ing as on the date of the amendment, as she has not been conferr ed the rights of a coparcener by obstructed heritage. Accor ding to the Mitakshara coparcenary Hindu law, as administ ered which is recognised in Section 6(1), it is not necessa ry that there should be a living, coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the d ate of the amendment, i.e., 9-9-2005 with saving of past transaction s as provided in the proviso to Section 6(1) read with Se ction 6(5).” (Emphasis supplied)

¶69The Court has further observed in para 69 as under: “69. … Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9-9-2005 to enable the daughter of a coparcener to enjoy rig hts conferred on her. As the right is by birth and not b y dint of inheritance, it is irrelevant that a coparcener whose daug hter is conferred with the rights is alive or not. Confe rral is not based on the death of a father or other coparcener. In ca se living coparcener dies after 9-9-2005, inheritance i s not by survivorship but by intestate or testamentary succe ssion as provided in substituted Section 6(3).” (Emphasis supplied)

¶70Explaining sub-section (3) of substituted Section 6, the Court observed in paragraph 66 as under: “66. With respect to a Hindu who dies after the commencement of the Amendment Act, as provided in section 6(3) his intere st shall pass by testamentary or intestate succession and not by survivorship, and there is a deemed partition of th e coparcenary property in order to ascertain the shares whi ch would have been allotted to his heirs had there bee n a partition. The daughter is to be allotted the same share as a son; even surviving child of predeceased daughter o r son are given a share in case the child has also died t hen the surviving child of such predeceased child of a prede ceased son or predeceased daughter would be allotted the same share, had they been alive at the time of deemed partition . Thus, there is a sea-change in substituted Section 6. In case of dea th of coparcener after 9-9-2005, succession is not by survivorship but in accordance with Section 6(3). T he Explanation to Section 6(3) is the same as Explanation I to Section 6 as originally enacted. …” (Emphasis supplied)

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

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

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

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

(D) It is not necessary that a coparcener whose daugh ter is conferred with the rights is alive or not on the da te of commencement of the Amendment Act, 2005. The daughter would step into the coparcenary as that of a son by birth.

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

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

¶72As noted earlier, sub-section (5) of substituted Section 6 of the Hindu Succession Act, 1956 provides that nothing contained in the substituted Section 6 shall apply to a partition, which has been effected before 20th December, 2004 (i.e., date on which the Bill corresponding to the Amendment Act, 2005 was presented in the Raj ya Sabha). Explanation to the substituted Section 6 provides that for the purposes of Section 6 “partition” means (i) any partition made by execut ion of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908), or (ii) any partition effected by a decree of a court. Interpreting sub-section (5) of substituted Section 6 and Explanation to substituted Section 6, the Court in Vineeta Sharma (supra), has observed in para 67 as under: “67. The proviso to Section 6(1) and Section 6(5) saves any partition effected before 20-12-2004. However, Expla nation to Section 6(5) recognises partition effected by exe cution of a deed of partition duly registered under the Registration A ct, 1908 or by a decree of a court. Other forms of partition have not been recognised under the definition of “partit ion” in the Explanation.”

¶73In regard to the sub-section (5) of substituted Section 6 and Explanation to substituted Section 6, the Court held:

(A) It has been held that the daughter has now become entitled to claim partition of coparcenary with effect from 9.09.2005 like a son. The Court observed in para 85 as under: “85. The right to claim partition is a significant basic featur e of the coparcenary, and a coparcener is one who can cla im partition. The daughter has now become entitled to claim partition of coparcenary w.e.f. 9-9-2005, which is a vital change brought about by the statute. A coparcener enjoys the right to seek severance of status. Under Sectio ns 6(1) and 6(2), the rights of a daughter are pari passu with a so n. In the eventuality of a partition, apart from sons and daughters, the wife of the coparcener is also entit led to an equal share. The right of the wife of a coparcener to claim her right in property is in no way taken away .” (Emphasis supplied)

(B) As noted earlier, under the law pertaining to partition as existing prior to the Amendment Act, 2005, if there would be a partition of coparcenary property between father (F) and sons (S1 and S2) then the wife (W) of father (F) as well as widowed mother (M) of father (F) would get one share equal share to that of a son (S1 or S2). This position continues to exist as is evident from t he observation made in the last portion of the above-quoted paragraph 85 of this Court’s decision. Hence, if there is a pa rtition of coparcenary property between father and sons (and now also daughters), then wife of father as well as widowed mother of father would get one share equal share to that of a son (or a daughter).

(C) Under Mitakshara School of Hindu Law, a member of a joint Hindu Family can bring about his separation in status by a definite, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severalty. Thus, the institution of a suit for partition by a member of a joint family is a clear intimation of his intention to separate, and there was consequential severance of the status of jointness. Question before this Court in Vineeta Sharma (supra) was: in case during the pendency of partition suit or during the period between the passing of preliminary decree and final decree in the partition s uit, any legislative amendment or any subsequent event takes place which results in enlargement or diminution of the shares of the parties or alteration of their rights, whether such legislative amendment or subsequent event can be into consideration and given effect t o while passing final decree in the partition suit. The Court held that even though filing of partition suit brings about severance of status of jointness, such legislative amendment or subsequent event will have to be taken into consideration and given effect to in passing the final decree in the partition suit. This is because, the partition suit can be regarded as fully and completely decided only when the final decree is passed. It is by a final decree that parti tion of property of joint Hindu Family takes place by metes and bounds. (See: paragraphs 89 to 102, and paragraphs 106, 114, 133 and 136). The Court observed in para 107 as under: “107. Once the constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actual partition. The shares will have to be determined in changed scenario . The severance of status cannot come in the way to give effect to statutory provision and change by subsequent event. The statutory fiction of parti tion is far short of actual partition, it does not bring about the disruption of the joint family or that of coparcenar y is a settled proposition of law. For the reasons mention ed above, we are also of the opinion that mere severance o f status by way of filing a suit does not bring about the partition and till the date of the final decree, ch ange in law, and changes due to the subsequent event can be taken into consideration. ” (Emphasis supplied)

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

¶74As noted above, Explanation to substituted Section 6 provides that for the purposes of Section 6 “partition” means (i) any partition made by execution of a deed of partition duly registered unde r the Registration Act, 1908 (16 of 1908), or (ii) any partition effecte d by a decree of a court. The Court in further considered the imp act of the aforesaid Explanation on the oral partition or oral family settlement/family arrangement made prior to 20th December, 2004. The Court opined in para 124 as under: “124. The intendment of amended Section 6 is to ensure that daughters are not deprived of their rights of obtaining share on becoming coparcener and claiming a partition of the coparcenary property by setting up the frivolous def ence of oral partition and/or recorded in the unregistered memorandum of partition. The court has to keep in mind the possibility that a plea of oral partition may be se t up, fraudulently or in collusion, or based on unregiste red memorandum of partition which may also be created at any point of time. Such a partition is not recognised under Secti on 6(5). ” (Emphasis supplied)

¶75The Court further held para 135 as under: “135. A special definition of partition has been carved out in the Explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unj ustly to deprive the daughter of her right as coparcener and pre vent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in Secti on 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of Section 6, the inten dment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of Section 6 (5) are required to be interpreted to cast a heavy burden o f proof upon proponent of oral partition before it is accep ted such as separate occupation of portions, appropriation o f the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted m ost reluctantly while exercising all safeguards. The in tendment of Section 6 of the Act is only to accept the genuine partiti ons that might have taken place under the prevailing law , and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, sett ing up of false or frivolous defence to set at naught the ben efit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daug hter of her rights as a coparcener. When such a defence is take n, the court has to be very extremely careful in accep ting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of pu blic documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the ple a of an oral partition or memorandum of partition, unregistered o ne can be manufactured at any point in time, without a ny contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where par tition is proved conclusively and we caution the courts th at the finding is not to be based on the preponderance of probabilities in view of provisions of gender justic e and the rigour of very heavy burden of proof which meet intendme nt of Explanation to Section 6(5). It has to be remembered that the courts cannot defeat the object of the beneficial provision s made by the Amendment Act. The exception is carved out b y us as earlier execution of a registered document for partition was not necessary, and the court was rarely approached fo r the sake of family prestige. It was approached as a last resort when parties were not able to settle their family d ispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.” (Emphasis supplied). (Reference: Article titled ‘Changing Dimensions of Hindu Coparcenary and Section 6, Hindu Succession Act, 1956 by Justice Satya Poot Mehrotra, Former Judge Allahabad High Court .)

¶76The reference was ultimately answered in paras 137.1 to 137.5 resply as under: “137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of copa rcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities.

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

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

137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpos e of ascertaining share of deceased coparcener when he w as survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be give n full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in copa rcenary equal to that of a son in pending proceedings for final decree or in an appeal.

137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of par tition effected by a deed of partition duly registered und er the provisions of the Registration Act, 1908 or effected by a decr ee of a court. However, in exceptional cases where plea of o ral partition is supported by public documents and parti tion is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be ac cepted. A plea of partition based on oral evidence alone cann ot be accepted and to be rejected outrightly.”

¶77The decision of Vineeta Sharma (supra) also highlights that a change in law during the pendency of an appeal must be considered and appropriately applied. This Court relied upon United Bank of India, Calcutta v. Abhijit Tea Company Private Limited and Others reported in (2000) 7 SCC 357, wherein, it was held that: “20. Now, it is well settled that it is the duty of a court, whether it is trying original proceedings or hearing an appeal, t o take notice of the change in law affecting pending actions and to give effect to the same. (See G.P. Singh: Interpret ation of Statutes, 7th Edn., p. 406.) If, while a suit is pending, a law like the 1993 Act that the civil court shall not decide the suit , is passed, the civil court is bound to take judicial n otice of the statute and hold that the suit — even after its remand — cannot be disposed of by it.”

¶78This Court in Vineeta Sharma (supra) clarified the entire position as follows: “107. Once the constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actua l partition. The shares will have to be determined in c hanged scenario. The severance of status cannot come in the way to give effect to statutory provision and change by sub sequent event. The statutory fiction of partition is far short of ac tual partition, it does not bring about the disruption of t he joint family or that of coparcenary is a settled proposition of law. For the reasons mentioned above, we are also of the opinion that mere severance of status by way of filing a suit doe s not bring about the partition and till the date of the final decree , change in law, and changes due to the subsequent event can be taken into consideration. Xxx xxx xxx

¶114 In the instant case, the question is different. Wha t has been recognised as partition by the legislation under Se ction 6, accordingly, rights are to be worked out. This C ourt consistently held in various decisions mentioned abov e that when the rights are subsequently conferred, the preli minary decree can be amended, and the benefit of law has t o be conferred. Hence, we have no hesitation to reject t he effect of statutory fiction of the proviso to Section 6 as discussed in Prakash v. Phulavati [(2016) 2 SCC 36 : (2016) 1 SCC

(Civ) 549] and Danamma [Danamma v. Amar, (2018) 3 SCC 343 : (2018) 2 SCC (Civ) 385]. If a daughter is alive on the date of enforcement of the Amendment Act, she becom es a coparcener with effect from the date of the Amendmen t Act, irrespective of the date of birth earlier in point of ti me.” APPLICATION OF THE AFORESAID PRINCIPLES OF LAW TO THE FACTS OF THE PRESENT CASE

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

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

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

¶82In our opinion, no error not to speak of any error of law could be said to have been committed upon Courts below, while determining the shares of the parties. The only thing that needs to be done now is to give effect to the amendment in the provisions of Section 6 of the 1956 Act and redetermine the shares of the parties accordingly. To put it straight, the Plaintiff is entitled to 1/3 rd share in all the properties of her Late father. The issue whether all the properties were ancestral as raised on behalf of the Appellants pale into insignificance. ISSUE NO. 2

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

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

¶85We are not much impressed by the aforesaid submissions of Mr. Basant. It is a settled position of law that right of appe al is the creature of statute. There is no inherent right of appeal. No appeal can be filed, heard or determined on merits unless the statute confers right on the appellant and power on the Court to do so. At this stage, we may look into the provisions of Order XLI Rule 22 of the CPC: “22. Upon hearing respondent may object to decree as if he had preferred a separate appeal.— (1) Any respondent, though he may not have appealed from any part of the decree , may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any c ross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appe llate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appe al, or within such further time as the Appellate Court may see f it to allow. [Explanation.—A respondent aggrieved by a finding o f the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in r espect of the decree in so far as it is based on that find ing, notwithstanding that by reason of the decision of th e Court on any other finding which is sufficient for the de cision of the suit, the decree, is, wholly or in part, in fav our of that respondent.]

(2) Form of objection and provisions applicable thereto .— Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to th e form and contents of the memorandum of appeal, shall app ly thereto. [3***]

(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original ap peal is withdrawn or is dismissed for default, the objection so fi led may nevertheless be heard and determined after such not ice to the other parties as the Court thinks fit.

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

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

¶87Our attention was also drawn to the provisions of Order XLIII of Rule 1-A (2) of the CPC. The same reads as under: “1A. Right to challenge non-appealable orders in app eal against decrees.— Xxx xxx xxx

(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.”

¶88We are of the view that the cross-appeal objector is e ntitled under Order XLI Rule 22 of the CPC read with Order XLIII Rule 1-A

(2) of the CPC as referred to above, to make good the submission that she was entitled in law to question the legality and validity of the settlement agreement recorded under Order XXIII Rule 3 of the CPC by way of a cross-appeal.

¶89In the aforesaid context, we may refer to the decision of this Court in the case of Banwari Lal v. Chando Devi (Smt) and Another reported in (1993) 1 SCC 581, more particularly, paras 9 to 13 r esply therein: “9. Section 96(3) of the Code says that no appeal sh all lie from a decree passed by the Court with the consent of the parties. Rule 1-A(2) has been introduced saying that aga inst a decree passed in a suit after recording a comprom ise, it shall be open to the appellant to contest the decree on the ground that the compromise should not have been record ed. When Section 96(3) bars an appeal against decree pa ssed with the consent of parties, it implies that such decree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties. One such re medy available was by filing the appeal under Order 43, Rule 1(m ). If the order recording the compromise was set aside , there was no necessity or occasion to file an appeal agai nst the decree. Similarly a suit used to be filed for setting asi de such decree on the ground that the decree is based on an inval id and illegal compromise not binding on the plaintiff of the second suit. But after the amendments which have be en introduced, neither an appeal against the order rec ording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3-A of Order 23. As such a right ha s been given under Rule 1-A(2) of Order 43 to a party , who challenges the recording of the compromise, to questio n the validity thereof while preferring an appeal against the decree. Section 96(3) of the Code shall not be a bar to such an appeal because Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute.

¶10The learned counsel appearing for the respondent took a stand that the High Court was justified in taking t he view that the suit had been simply withdrawn by the plai ntiff-appellant under Rule 1 of Order 23 and it had not b een compromised in terms of Rule 3 of the said Order 23; as such there was no occasion for the appellant to file an applicat ion for recall of the said order and for restoration of the suit in question for being heard on merit. From the copy of the petition which was filed on February 27, 1991 it appears tha t the terms and conditions of settlement and agreement had been mentioned saying that both parties had entered into a compromise because of which the plaintiff-appellant had thereafter no connection with the disputed land and defendant-respondent shall be deemed to be in posse ssion and the owner of the said disputed land. The prayer made in the said petition also says that the compromise may be ordered to be accepted. On basis of that petition, as already mentione d above, the court passed an order saying that the compromise had been accepted. In the order it has been mentioned that the suit of the plaintiff be “dismissed as per compromise deed Ex. C”. In view of the aforesaid facts and circumstances, it is difficult to hold that by order dated February 27, 19 91 the Court allowed the suit to be withdrawn in terms of Rule 1 of Order 23. The order on face of it purported to dismiss the sui t of the plaintiff on basis of the terms and conditions mentione d in the petition of compromise. As such, the validit y of that order has to be judged treating it to be an order dee med to have been passed in purported exercise of the power conf erred on the Court by Rule 3 of Order 23 of the Code. The learned Subordinate Judge should not have accepted the said petition of compromise even if he had no knowledge of the fr aud alleged to have been practised on the appellant by his counsel , because admittedly the petition of compromise had not be en signed either by the respondent or his counsel. This fact should have been discovered by the Court. In the case of Gurp reet Singh v. Chatur Bhuj Goel [(1988) 1 SCC 270 : AIR 1988 SC 400] it has been said: (SCC p. 276, para 10) “Under Rule 3 as it now stands, when a claim in sui t has been adjusted wholly or in part by any lawful agreemen t or compromise, the compromise must be in writing and si gned by the parties and there must be a completed agreem ent between them. To constitute an adjustment, the agreement or compromise must itself be capable of being embodied in a decree. When the parties enter into a compromise during the hearing of a suit or appeal, there is no reason why the requirement that the compromise should be reduced in writing in the form of an instrument signed by the parties shoul d be dispensed with. The court must therefore insist upon the parties to reduce the terms into writing .” The requirement of the petition of compromise being si gned by the parties concerned has been considered also in the case of Byram Pestonji Gariwala v. Union Bank of India [(1992 ) 1 SCC 31 : AIR 1991 SC 2234] . It appears the attention of learned Judges was not drawn to the aforesaid case of this Court in Gurpreet Singh v. Chatur Bhuj Goel [(1988) 1 SCC 270 : AIR 1988 SC 400].

¶11The present case depicts as to how on February 27, 1991 the court recorded the alleged agreement and compromise in a casual manner. It need not be impressed that Rule 3 of Order 23 does not require just a seal of approval from the Court to an alleged agreement or compromise said to have bee n entered into between the parties. The statute requires the Court to be first satisfied that the agreement or compromise which has been entered into between the parties is lawful , before accepting the same. Court is expected to apply its judicial mind while examining the terms of the settlement bef ore the suit is disposed of in terms of the agreement arrived at betw een the parties. It need not be pointed out that once such a petition of compromise is accepted, it becomes the order of the Cour t and acquires the sanctity of a judicial order.

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

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

¶90We may also refer to and rely upon the decision of this Court in the case Vipan Aggarwal and Another v. Raman Gandotra and Othe rs reported in 2022 SCCOnLine SC 1357 more particularly paras 4 and 5 resply therein: “4. This Court in a judgment reported in ‘Banwari L al v. Chando Devi (Smt.) (Through LRS.)’ (1993) 1 SCC 581 held the question as to whether an aggrieved person against the compromise decree has a right to file an applicatio n before the Court which granted the decree or an appeal in terms of Order 43 Rule 1A of the Civil Procedure Code, 1908 (for short, ‘the CPC’). It was held as under:— “13. When the amending Act introduced a proviso along with an explanation to Rule 3 of Order 23 saying that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, “the Court shall decide the question”, the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect o f validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise “which is void or voidabl e under the Indian Contract Act…” shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to exami ne whether the compromise was void or voidable under th e Indian Contract Act . Even Rule 1(m) of Order 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1-A of Order 43 of t he Code.”

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

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

¶92We shall now look into the circumstances, as highlighted by the learned Senior Counsel appearing for the Defendant No. 2, rendering the settlement agreement dated 28.03.1991 invalid and not binding under Order XXIII Rule 3 of the CPC: “First, the alleged compromise agreement has admittedly not been signed by the plaintiff who concededly has a sh are in the property as a coparcener. A written consent of all pa rties is necessary. Secondly, a coparcenary undivided property in specie (Plot No. 140) has been allotted to Defendant 2 by Defendant No. 1 over which the plaintiff also has an interest. Thirdly, there is variance between the agreement an d the compromise petition producing the agreement. The Variance noted is as follows-

(a) The compromise petition takes in consideration yet anot her property already purchased by Defendant No. 2 by her o wn income (Schedule B property) which was not a part o f compromise agreement.

(b) The sketch map appended to the petition shows pl ot no. 1086 and 1085 which for part of plot No. 141 instead of plot no. 140 mentioned in clause 3 of compromise agreement, and does not indicate any consensus ad idem, therefore, the execution of the compromise agreement becomes unenforceable.

(c) The species of suit property, which was given/provid ed to Defendant no.2 in clause 3 (page 141) of agreement was changed to will be allotted to her in final decree proceedin g.

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

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

(f) The easement rights to property of Defendant No. 2 were recognised in agreement and later in petition was alter ed to that Defendant No. 2 along with others have to file and take steps to easement rights for which the Defendant 1 shall no t object.

(h) The agreement provided that the defendant no. 2 shall sign the compromise petition which was later altered to signing and swearing the affidavit in compromise petition. Fourthly, the judgment dated 01.08.2000 of the first appellate court accepting the compromise does not make allotment of the property allotted in specie to the Defendant No . 2. The first appellate court has proceeded on the wrong premise that the Defendant No. 2 has surrendered her rights to t he Defendant No. 1. The first appellate court was further wrong in specifically noting that the compromise agreement does not cause any prejudice to the rights of the plaintiff and there fore can be given effect. Fifthly, the compromise agreement was entered into by beckoning a smaller share to the Defendant No. 2, while she has a larger share in view of Vineeta Sharma (supra) . The consideration for the alleged compromise/settlement was therefore inadequate and whole agreement has to fall to the ground due to changed and supervening circumstances effectuated by change in law. Lastly, even otherwise, the allotment of a co-owner ship property in a specie to one coparcener cannot be modified i n a preliminary decree. Moreover, under Hindu Law, the gift/ renunciation/relinquishment or alienation by one coparc ener of his undivided coparcenary interest to another coparc ener without consent of other coparceners is void.”

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

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

¶95In Nityamoni Dasi v. Gokul Chandra Sen reported in (1911) 9 Ind Cas 210 (Cal), the Calcutta High Court observed: “… The decree of the Subordinate Judge must be set aside and the whole case retried, because as this is a suit for partition of joint property, a decree by consent amongst some o nly of the parties cannot possibly be maintained…..”

¶96In Vir Singh and Others v. Kharak Singh and Others reported in AIR 1925 Lah 280, all the proprietors had not assented to the compromise, Moti Sagar, J. observed:— “…the alleged compromise not having been assented t o by all the proprietors was clearly contrary to law and the Cour t was, therefore, fully justified in refusing to enfor ce it. …”

¶97In Taraprasanna Sarkar and Another v. Kalikamohan Sarkarand Others reported in AIR 1924 Cal 80 Mookerjee and Rankin, JJ., held:— “…There can be no compromise binding upon, all the parti es to a partition suit until and unless all the parties have joi ned in the compromise:…”

¶98In the aforesaid context, we shall also now look into the findings recorded by the Division Bench of the High Court while all owing the cross-appeal filed by the Defendant No. 2. We quote the relevant observations as under: “The appeal was filed by defendant no. 1 before this Court. In this Appeal challenging the correctness of the decis ion of the learned Single Judge in F.A. No. 359/96 on the b asis of the compromise petition dated 28.3.1991, which is fli ed and accepted by him is not signed by defendant no.2 and the same is signed by her advocate and not signed by the plaintiff and her counsel. Therefore, it is urged that the same is not l egal compromise as provided under Order 23, Rule 3, CPC a nd on behalf of defendant no.2 her advocate could not have signed the compromise petition as she has not executed speci al ‘vakalatnama’ giving the authorization in favour of her lawyer to compromise the matter between defendant no.1 and 2 In the First Appeal. Therefore, First Appellate Judge should not have received the compromise petition and accepted the sam e. The acceptance of the compromise petition by the le arned Single Judge should have entered between the partie s including the plaintiff. In support of the said legal cont ention, reliance is placed by the learned counsel on behalf of defendant no.2 on the decisions of the apex Court in Ramasrey & Puspa Devi (supra). The compromise petition is in variance to the schedule properties of the suit and, therefo re, it is voidable. The compromise was neither recorded by the first appellate court at the time-of filing compromise pet ition in writing, nor the parties were present in the court nor signed the petition in court. Therefore, the alleged compromise cannot be termed as compromise between the parties in relat ion to the subject matter covered therein as the same is ill egal for the reason that it is opposed to Order 23, Rule 3, CPC. Hence the learned Single Judge could not have accepted the same. In support of this contention, learned Single Judge had right ly placed reliance upon the decisions of the Hon’ble Su preme Court In the case of Gurpreet Singh v. Chatur Bhuj Goel, AIR 1988 SC 400; and of this Court in the case of Sa nyasi Jena and others v. Mina Jena and others, AIR 1984 Ori ssa

¶213Further the reliance placed by the learned couns el for the defendant no.1 upon the judgment of Puspa Devi (supra ) is distinguished by defendant no.2 counsel stating that compromise petition is being typed in English. Furt her the same is not signed by defendantno.2. Defendant no.1 with a view to deprive allotment of share assigned in favo ur of defendant no.2 by the trial court in respect of the suit schedul e properties in the absence of signing the compromise pet ition by defendant no.2 and there is no special ‘vakalatn ama’ executed in favour of her lawyer, the said compromise petiti on is unlawful and the same could not have been accept ed by the first appellate court In the Impugned judgment and modified the trial court judgment. Therefore, the c ross-objection/appeal filed by defendant no.2 has to be allowed by setting aside the compromise recorded by the first appel late court In the Impugned judgment by modifying trial c ourt judgment in relation to the share of the defendant no.2 allotted in respect of the suit schedule properties. Having set aside the said compromise, as recorded in the impugned judg ment of the First Appellate Court, the trial court judgm ent is restored with regard to the share assigned by him in favour in of defendant no.2 In respect of suit schedule prope rties. Accordingly the cross-objection of the second defen dant is allowed by answering the aforesaid point no.(iii) i n her favour .” (Emphasis supplied)

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

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

¶101In the aforesaid context, we may refer to the decision of this Court in the case of Himalayan Cooperative Group Housing Society v. Balwan Singh and Others reported in (2015) 7 SCC 373, more particularly, paras 22 to 33, which read thus: “22. Apart from the above, in our view lawyers are perceived to be their client’s agents. The law of agency may not st rictly apply to the client-lawyer’s relationship as lawyers or age nts, lawyers have certain authority and certain duties. Because lawyers are also fiduciaries, their duties will somet imes be more demanding than those imposed on other agents. The authority-agency status affords the lawyers to act for t he client on the subject-matter of the retainer. One of the mos t basic principles of the lawyer-client relationship is that lawye rs owe fiduciary duties to their clients. As part of those duties, lawyers assume all the traditional duties that agents owe t o their principals and, thus, have to respect the client’s autonomy to make decisions at a minimum, as to the objectives o f the representation. Thus, according to generally accepted notion s of professional responsibility, lawyers should foll ow the client’s instructions rather than substitute their judg ment for that of the client. The law is now well settled that a lawyer must be specifically authorised to settle and compr omise a claim, that merely on the basis of his employment he ha s no implied or ostensible authority to bind his client to a compromise/settlement. To put it alternatively that a lawyer by virtue of retention, has the authority to choose the m eans for achieving the client’s legal goal, while the client has the right to decide on what the goal will be. If the dec ision in question falls within those that clearly belong to t he client, the lawyer’s conduct in failing to consult the clie nt or in making the decision for the client, is more likely to con stitute ineffective assistance of counsel.

¶23The Bar Council of India Rules, 1975 (for short “the BCI Rules”), in Part VI Chapter II provide for the “Standards of Professional Conduct and Etiquette” to be observed by all the advocates under the Advocates Act, 1961 (for short “ the 1961 Act”). In the Preamble to Chapter II, the BCI Rules provide as follows: “An advocate shall, at all times, comport himself i n a manner befitting his status as an officer of the Co urt, a privileged member of the community, and a gentleman , bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the foregoing obligation, an advocate s hall fearlessly uphold the interests of his client and i n his conduct conform to the rules hereinafter mentioned bo th in letter and in spirit. The rules hereinafter ment ioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shal l not be construed as a denial of the existence of others equall y imperative though not specifically mentioned.”

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

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

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

¶26 While Rule 15 mandates that the advocate must upho ld the interest of his clients by fair and honourable means without regard to any unpleasant consequences to himself or any other. Rule 19 prescribes that an advocate shall only act on the instructions of his client or his authorised agent. Further , the BCI Rules in Chapter I of the said Section II provide t hat the Senior Advocates in the matter of their practice of the profession of law mentioned in Section 30 of the 19 61 Act would be subject to certain restrictions. One of su ch restrictions contained in clause (cc) reads as under: “(cc) A Senior Advocate shall, however, be free to make concessions or give undertaking in the course of arguments on behalf of his clients on instructions from the j unior advocate.”

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

¶28Therefore, the BCI Rules make it necessary that desp ite the specific legal stream of practice, seniority at t he Bar or designation of an advocate as a Senior Advocate, the ethical duty and the professional standards insofar as maki ng concessions before the Court remain the same. It is expected of the lawyers to obtain necessary instructions from the cl ients or the authorised agent before making any concessio n/ statement before the court for and on behalf of the cli ent.

¶29While the BCI Rules and the Act, do not draw any exception to the necessity of an advocate obtaining instructio ns before making any concession on behalf of the client before the c ourt, this Court in Periyar & Pareekanni Rubber Ltd. v. S tate of Kerala [(1991) 4 SCC 195] has noticed the sui generis status and the position of responsibility enjoyed by the A dvocate General in regard to the statements made by him before th e courts. The said observation is as under: (SCC p. 209, para 19) “19. … Any concession made by the Government Pleader in the trial court cannot bind the Government as it is obviously, always, unsafe to rely on the wrong or erroneous or wanton concession made by the counsel appearing for the State unless it is in writing on instructions f rom the responsible officer. Otherwise it would place undue and needless heavy burden on the public exchequer. But the same yardstick cannot be applied when the Advocate General has made a statement across the Bar since t he Advocate General makes the statement with all responsibility.” (See: Joginder Singh Wasu v. State of Punjab [(1994 ) 1 SCC 184] .)

¶30The Privy Council in Sourendra Nath Mitra v. Tarub ala Dasi [(1929-30) 57 IA 133 : (1930) 31 LW 803 : AIR 1 930 PC 158] , has made the following two observations w hich hold relevance to the present discussion: (IA pp. 140-41) “Two observations may be added. First, the implied authority of counsel is not an appendage of office, a dignity adde d by the courts to the status of barrister or advocate at law. It is implied in the interests of the client, to give the fullest beneficial effect to his employment of the advocate. Secondly , the implied authority can always be countermanded b y the express directions of the client. No advocate has a ctual authority to settle a case against the express instru ctions of his client. If he considers such express instructions c ontrary to the interests of his client, his remedy is to return hi s brief.” (See: Jamilabai Abdul Kadar v. Shankarlal Gulabchan d [(1975) 2 SCC 609] and Svenska Handelsbanken v. Ind ian Charge Chrome Ltd. [(1994) 2 SCC 155] )

¶31Therefore, it is the solemn duty of an advocate no t to transgress the authority conferred on him by the client. It is always better to seek appropriate instructions from the client or his authorised agent before making any concession which may, directly or remotely, affect the rightful legal rig ht of the client. The advocate represents the client before the court and conducts proceedings on behalf of the client. He is t he only link between the court and the client. Therefore hi s responsibility is onerous. He is expected to follow the instructions of his client rather than substitute his jud gment.

¶32Generally, admissions of fact made by a counsel ar e binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admi ssion, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a cli ent is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or state ment which would directly surrender or conclude the subs tantial legal rights of the client unless such an admission or state ment is clearly a proper step in accomplishing the purpo se for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyer’s state ments or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professi onal responsibility, lawyers should follow the client’s in structions rather than substitute their judgment for that of the client. We may add that in some cases, lawyers can make decisi ons without consulting the client. While in others, the decis ion is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can a ffect his rights.

¶33We do not intend to prolong this discussion. We ma y conclude by noticing a famous statement of Lord Brougham: “an advocate, in the discharge of his duty knows but one person in the world and that person is his client”. [ Ed.: The statement was made by Mr Henry Brougham, as His Lordship then was, while defending Queen Caroline in the House of Lords. See The Whole Proceedings on The Trial of Her Majesty, Caroline Amelia Elizabeth, Queen of England, for “Adulterous Intercourse” with Bartolom eo Bergami, Vol. II, p. 2 containing Her Majesty’s Defe nce, printed and published by John Fairburn, Broadway, Ludgate Hill (1820).]” (Emphasis supplied)

¶102We also refer to the decision of this Court in the case of Byram Pestonji Gariwala (supra), more particularly, the observations made in para 37, which read thus: “37. We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demandin g immediate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communic ation, such contingency may seldom arise. A wise and caref ul counsel will no doubt arm himself in advance with t he necessary authority expressed in writing to meet al l such contingencies in order that neither his authority nor integrity is ever doubted. This essential precaution will safe guard the personal reputation of counsel as well as uphold the prest ige and dignity of the legal profession .” (Emphasis supplied)

¶103Almost six decades back, the Madras High Court speaking through Justice Ramaswami (as His Lordship then was) in the c ase of Govindammal v. Marimuthu Maistry and Others reported in AIR 1959 Mad 7 had sounded the note of caution observing as under: “5. … The decisions appear to be fairly clear that ev en in cases where there is no express authorization to enter i nto a compromise, under the inherent authority impliedly g iven to the Vakil he has power to enter into the compromise on behalf of his client. But in the present state of the clie ntele world and the position in which the Bar now finds itself and in the face of divided judicial authority and absence of s tatutory backing prudence dictates that unless express power is gi ven in the vakalatnama itself to enter into compromise, in accordance with the general practice obtaining a sp ecial vakalatnama should be filed or the specific consent of the party to enter into the compromise should be obtained. If an endorsement is made on the plaint etc., it would be better to get the signature or the thumb impression of the party affixe d thereto, making it evident that the party is aware of w hat is being done by the Vakil on his or her behalf.”

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

¶105We may draw our final conclusions as under:

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

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

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

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

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

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

¶108Parties to bear their own costs.

¶109Pending applications, if any, also stand disposed of. Divya Pandey Appeals dismissed. (Assisted by : Shevali Monga, LCRA)