Holding

A partition suit must be decided in stages, and when the law governing the parties is amended before the final decree, the amendment must be given effect, entitling the daughters to a one‑third share in all properties and rendering the settlement between the brothers invalid.

Summary

The case involved a partition suit concerning the ancestral and self‑acquired properties of the late Kumar Sahoo, claimed by his daughter Charulata Sahu and contested by the heirs of his son Prafulla Sahoo. The trial court issued a preliminary decree allocating a one‑sixth share to the daughter in ancestral lands and one‑third in self‑acquired lands, which was affirmed by the High Court. While the appeal was pending, the Hindu Succession (Amendment) Act, 2005 altered Section 6 to grant daughters equal coparcenary rights, prompting the daughters to seek a modification of the decree. The Supreme Court held that a partition suit is decided in stages and, because the amendment occurred before the final decree, the daughters are entitled to a one‑third share in all properties, and the settlement between the brothers was invalid under Order XXIII Rule 3 of the CPC. The Court also affirmed the maintainability of the cross‑appeal filed by Defendant 2, emphasizing that a cross‑appeal is a substantive right of appeal. Consequently, the appeals were dismissed and the trial court was directed to modify the decree accordingly.

Issues considered

The effect of the Hindu Succession (Amendment) Act, 2005 on the parties' rights before the final decree in a partition suit.
Whether the preliminary decree can be altered in light of subsequent legislative amendment.
The validity of the settlement agreement between the brothers under Order XXIII Rule 3 of the CPC.
The maintainability of the cross‑appeal filed by the original Defendant 2.
The proper procedure for a lawyer to sign a compromise petition without express client consent.

Legislation cited

Code of Civil Procedure, 1908s. Order XLIII Rule 1-A (2), s. Order XLI Rule 22, s. Order XXIII Rule 3
Hindu Succession Act, 1956s. 6
Hindu Succession (Amendment) Act, 2005s. 6

Subjects

partition suitHindu Succession Act2005 amendmentcoparcener rightscross‑appealsettlement validityOrder XXIII Rule 3 CPCpreliminary decreefinal decreeshare entitlement

Judgment

20 [2023]
SUPREME COURT 5 S.C.R. 20
REPORTS [2023] 5 S.C.R.

A PRASANTA KUMAR SAHOO & ORS.
v.
CHARULATA SAHU & ORS.
(Civil Appeal No. 2913-2915 of 2018)
B MARCH 29, 2023
[A. S. BOPANNA AND J. B. PARDIWALA, JJ.]
Hindu Succession Act, 1956– Amendment in law governing
the parties – Partition suit – s.6, 1956 Act was amended by 2005
Amendment, before the conclusion of the final decree proceedings
C
– Effect of – Held: Partition suit is required to be decided in stages
and the same can be regarded as fully and completely decided only
when the final decree is passed – Thus, as the law governing the
parties was amended before the conclusion of the final decree
proceedings, the party benefitted by such amendment (like the two
D daughters in the present case) can make a request to the Trial Court
to take cognizance of the Amendment and give effect to the same –
Plaintiff entitled to 1/3rd 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 said extent –
Hindu Succession (Amendment) Act, 2005.
E
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 Succession
(Amendment) Act, 2005.
F Code of Civil procedure, 1908 – O.XXIII, r.3; Or.XLI, r.22,
o.XLIII, r.1-A (2) – Cross Appeal – Maintainability of – Held: Right
of appeal is the creature of statute – The right to prefer cross-
objection partakes of the right to prefer an appeal – A cross-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,
G r.1-A (2) to make good the submission that she was entitled in law to
question the legality and validity of the settlement 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 Defendant No.2,

H
20
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 21
& ORS.

questioning the legality and validity of the settlement was A
maintainable in law.
Code of Civil Procedure, 1908 – Or.XXIII, r.3 – Settlement
Agreement without written consent of all the parties – Validity of –
Held: Under Or.XXIII, r.3, when a claim in suit has been adjusted
wholly or in part by any lawful agreement or compromise, the B
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 parties – In a
suit for partition of joint property, a decree by consent amongst C
only some of the parties cannot be maintained – Hence, settlement
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 – Discussed.
D
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 E
6 of Act 1956 was referred to a larger Bench. The larger Bench
ultimately settled the position of law in Vineeta Sharma. Daughters
are entitled to 1/3rd share in all the properties as scheduled in
the plaint. The same would be in accordance with the dictum as
laid in Vineeta Sharma, while passing the final decree. By virtue
of the preliminary decree passed by the Trial Court, which was F
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 G
amended before the conclusion of the final decree proceedings,
the party benefitted by such amendment (like the two daughters
in the case on hand) can make a request to the Trial Court to
take cognizance of the Amendment and give effect to the same.
No error not to speak of any error of law could be said to have
H
22 SUPREME COURT REPORTS [2023] 5 S.C.R.

A 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.
The Plaintiff is entitled to 1/3rd share in all the properties of her
Late father. The issue whether all the properties were ancestral
B
as raised on behalf of the Appellants pale into insignificance.
[Paras 63, 64, 80 and 82][56-A-B; 67-B-D, F]
Vineeta Sharma v. Rakesh Sharma and Others (2020) 9
SCC 1 : [2020] 10 SCR 135 – relied on.
C 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 the
D cross-appeal filed by the Original Defendant No. 2 on the ground
that the settlement arrived at between the Appellants (Defendant
No 1 and Defendant No. 2) was not valid and binding under Order
XXIII Rule 3 of the CPC.
Right of appeal is the creature of statute. There is no
E 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. The right to prefer
cross-objection partakes of the right to prefer an appeal. The
learned counsel appearing for the Defendant No. 2 (Respondent
No. 2 herein) that a cross-appeal under Order XLI Rule 22 of the
F 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. The cross-appeal objector is entitled
under Order XLI Rule 22 of the CPC read with Order XLIII
G Rule 1-A (2) of the CPC, 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. The cross-appeal filed by the

H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 23
& ORS.

Original Defendant No. 2, questioning the legality and validity of A
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 B
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 stands, C
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 D
has made herself very clear that she never joined in the
settlement between her brother i.e., the Defendant No. 1 and
her sister i.e., the Defendant No. 2. On this ground alone, the
settlement could be said to be unlawful, being without any written
consent of all the parties. In a suit for partition of joint property, E
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.
3. The third question that arises for consideration in context F
with the legality and validity of the settlement is whether the
learned advocate appearing for the cross-objector i.e., Defendant
No. 2 could have signed the compromise petition without an
express consent. It is an imperative duty of the Court to ascertain
the genuineness and lawfulness of the compromise deed. G
Indisputably, in the case on hand, the First Appellate Court had
neither recorded the statements of the parties in the Court nor
had made any inquiry into the terms of the settlement. It is in
such circumstances that the High Court in its impugned order

H
24 SUPREME COURT REPORTS [2023] 5 S.C.R.

A has observed that the Compromise Petition was signed by the
advocate without any express authority or without special
vakalatnama executed in favour of the advocate. In fact, the
authority was expressly curtailed in the compromise deed. The
High Court committed no error in holding that the settlement
between the Defendant Nos. 1 and 2 was unlawful. [Paras 100,
B
104][79-C-D; 85-G]
4. The preliminary decree drawn by the Trial Court as
affirmed by the High Court is modified to the extent that the
daughters are entitled to 1/3rd share in all the properties
scheduled in the plaint i.e., ancestral and self-acquired properties
C of Late Shri Kumar Sahoo. The Trial Court shall modify
the decree accordingly. The settlement between the Original
Defendant Nos.1 and 2 was not in accordance with law, the
Appellants herein will not be entitled to the share of the Original
Defendant No. 2. Appellants shall be entitled to only their 1/3rd
D 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
E (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;
F 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
G 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

H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 25
& ORS.

Company Private Limited and Others (2000) 7 SCC 357 A
: [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 B
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)
C
[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)
D
[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 E
[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 F
[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 G
of Orissa at Cuttack in AHO No. 133 of 2000 and MC No. 24 of 2007.
R. Basant, Sr. Adv., Ashok Panigrahi, Ms. Geetanjali Das
Krishnan, R. Chanrdachud, Ms. Nikita Jaydevan, Nabab Singh, D.
Venkatakrishna, Advs. for the Appellants.
H
26 SUPREME COURT REPORTS [2023] 5 S.C.R.

A 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.
B
1. Since the issues involved in both the captioned appeals are
interrelated; the parties are also same and the challenge is also to the
self-same judgment and decree passed by the High Court of Orissa,
those were taken up for hearing analogously and are being disposed of
by this common judgment and order.
C
2. Both the captioned appeals are at the instance of the legal
representatives and heirs of the original defendant No. 1 (Late Shri
Prafulla Sahoo S/o Kumar Sahoo) and are directed against the judgment,
order and decree passed by a Division Bench of the High Court of
Orissa at Cuttack dated 5.05.2011 in AHO No. 133 of 2000 by which
D 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
E No. 2, thereby setting aside and declaring the compromise recorded by
the First Appellate Court entered into between the Late Prafulla Sahoo
and his sister i.e., the Defendant No. 2 in the suit to be invalid.
FACTUAL MATRIX
3. This litigation relates to the partition of ancestral properties of
F one Kumar Sahoo, between the appellants who are the legal
representatives and heirs of the Defendant No. 1 (Late Mr. Prafulla
Sahoo S/o of Kumar Sahoo), the Respondent No. 1 herein i.e., the Plaintiff
(Mrs. Charulata Sahoo daughter of Kumar Sahoo) and the Respondent
No. 2 who are the legal representatives and heirs of the Defendant No.
2 (Mrs. Santilata D/o Kumar Sahoo)
G
4. For the sake of convenience, the relationship of the parties will
appear from the following genealogical table, drawn as under: -

H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 27
& ORS. [J. B. PARDIWALA, J.]

A

B

5. It appears from the materials on record that sometime in 1940
upon partition Late Shri Kumar Sahoo i.e., the father of the Plaintiff,
Defendant No. 1 and Defendant No. 2 resply as a co-parcener received C
the subject properties. In 1969, when Shri Kumar Sahoo passed away,
he was survived by the Plaintiff and Defendant Nos. 1 and 2 resply.
6. On 3.12.1980, the Respondent No. 1 (herein Original Plaintiff)
filed a suit for partition being the T.S. No. 348 of 1980, claiming 1/3 rd
share in the properties ‘A’ to ‘F’ as scheduled in the plaint.
D
7. The Respondent No. 1 (herein Original Plaintiff) prayed for
the following reliefs in the title suit No. 348 of 1980 referred to above:
“(i) Let a preliminary decree be passed for partition in respect
of the plaintiff ’s 1/3 rd share in schedule ‘A’ to ‘F’ and the
plaintiff be put in specific possession of the same on a separate E
allotment being curved out in final decree proceeding by
appointment of Civil Court Survey knowing commissioner and
a decree for mesne profit be passed against Defendant No. 1
from 1977 till the date of the suit and from the date of suit till
the decree is made final and the share of Defendant No. 1 in
the suit properties be charged for payment of the same. F

(ii) Let the Defendant No. 1 be permanently restrained from
interfering with the plaintiff ’s separate allotment in the final
decree proceeding at any time in future.
(iii) Let a degree be passed for the costs of the suit against G
the Defendants.
(iv) Let a decree be passed for such other relief that the
plaintiff is ultimately found entitled in his favour against the
Defendants.
H
28 SUPREME COURT REPORTS [2023] 5 S.C.R.

A DESCRIPTION OF THE PROPERTIES
SCHEDULE-A
1. Dist- Cuttack, S. R. Cuttack, Village- Chauliaganj, P.S.
No. 213. P.S. Madhupatna Khata No. 34, plot No. 1088 Area
Ac. 0.465 dec. Khata No. 32, Plot No. 1088.
B
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.
C
---------------------------
Ac 1.508 dec.
(A.V. Rs. 1,03,930/-)
D 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
E 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.
F 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.
-----------------
G
Ac. 2.90-½ dec.
(.A.V. RS. 2850/-)
SCHEDULE -’C’
District- Cuttack. S.R. Cuttack, Mouza- Rajahans,
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 29
& ORS. [J. B. PARDIWALA, J.]

Khata No. 855, Plot No. 316. Ac. 0.18 dec A
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. B
-----------------
Ac. 0.72 dec.
(A.V. RS. 720/-)
C
SCHEDULE -’D’
Mouza- Safipur, P.S. Sadar, Cuttack,
.... A.V .... Rs.
SCHEDULE -’E’
D
Mouza- Dian Rajhans Khata No. 1 Plot No. 73 Ac. 0.13 dec.
Plot No. 76 Ac. 0.12 dec
--------------
Ac. 0.25 dec
E
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. F
Plot No. 72 Ac. 0.29 dec.
Plot No. 104 Ac. 0. 19 dec.
-------------------
Ac. 1.10 dec G
. . ... 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 H
30 SUPREME COURT REPORTS [2023] 5 S.C.R.

A 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.
B 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.
C
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
D
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.
E
Plot No. 38 Ac. 0.11 dec.
Plot No. 69 Ac. 0.23 dec.
Plot No. 68 Ac. 0.37 dec.

F ------------------
Ac. 1.74 dec.
Valuation Rs. 350/-
Khata No. 21 Plot No. 145 Ac. 0.68 dec.
G 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.
H Plot No. 194 Ac. 0.20 dec.
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 31
& ORS. [J. B. PARDIWALA, J.]

Plot No. 107 Ac. 0.11 dec. A
Plot No. 139 Ac. 0.25 dec.
Plot No. 83 Ac. 0.06 dec.
--------------------
Ac. 3.06 dec B
Valuation Rs. 595/-
SCHEDULE -’F’
Mouza- Nagagajpur, P.S. Sadar, S.R. Cuttack, Dist- Cuttack.
C
Khata No. 61.
Plot No. 51 Ac. 0.080 dec.
Plot No. 54 Ac. 0.023dec.
Plot No. 57 Ac. 0.012 dec.
D
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.
E
Plot No. 108 Ac. 0.044 dec.
-----------------
Ac 1.89 decimals
. . . . . . . . . . Rs/ 1.890/- F
Agricultural and other lands Ac. 60.79 dec.
...Valued at Rs. 1.20, 610/-
VERIFICATION.”
8. The Trial Court framed the following issues: G
“(1) Is the suit maintainable in law?
(2) Are the plaintiff and Defendant No. 2 members of the family
of Defendant No. 1 in view of introduction of Urban Land
Ceiling & Regulation Act, 1976, and can the plaintiff maintain
a suit for partition of the suit property? H
32 SUPREME COURT REPORTS [2023] 5 S.C.R.

A (3) Is the suit property liable for partition among the parties?
(4) What are the respective shares of the plaintiff, Defendant
No. 1 and Defendant No. 2 in the suit property?
(5) Which of the properties in suit are ancestral and self-
acquired of Kumar Sahu?
B
(6) What are the shares of plaintiff and Defendant No. 2 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
C suit property at different points of time to be adjusted to their
respective shares?
(8) Whether the settlement deed dated 20.07.1985 executed
by late Nisamani Dei has been acted upon and are plaintiff
and Defendant No. 2 bound by the same?
D (9) Was there sufficient joint family nucleus in the hand of
Defendant No. 1 for alleged construction of the estate of the
joint family?
(10) Whether the property of Khata No. 18 in Schedule E of
the amended plaint is available for partition?
E (11) To what relief the parties are entitled?
The trial court decreed the suit and observed that the plaintiff
had one-sixth share in the ancestral property and one-third
share in the separate property. The said decree is being
challenged by Defendant No. 1.”
F
9. The suit between the parties was adjudicated and vide the
judgment and order dated 30.12.1986 the Civil Judge drew a preliminary
decree as under:
“ ORDER
G The suit is decreed preliminarily on contest against defendant
No: 1 with costs an D-2 without cost. Plaintiff is entitled to 2
annas 8 pies (1/6 th ) share and 1/3 rd share in respect of
ancestral and self acquired properties and super structures
thereon (Houses and buildings) respectively of Late Kumar
Charan Sahu out of the suit properties. She is also entitled to
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 33
& ORS. [J. B. PARDIWALA, J.]

the same share in respect of mense profits thereof, from the A
date of institution of the suit. Defendant No-2 is also entitled
to same share of properties and mense profits. Defendant No:
1 is entitled to 10 annas 8 pies (2/3 rd) and 1/3 rd share in
ancestral and self acquired properties respectively and
superstructure thereon of Late Kumar Charan Sahu and mense
B
profits thereof. An Amin Commissioner is to be deputed for
effecting partition on the above basis who is the final decree
proceeding will apportion shares on above basis after
ascertaining the details of ancestral and self acquired
properties an superstructures thereon and also the quantum
of mense profits in the light of indications and finding reached C
on different issues discussed in the judgment. After
ascertainment of such share plaintiff and Defendant No:2
are to be put in possession of such properties that would be
allotted to them separately in consequence of the final decree
proceeding. Hearing fee at contested useable.”
D
10. Thus, the Trial Court directed that:
(i) the properties listed in the Schedule ‘A’ to ‘F’ referred to
above shall be considered as ancestral properties, while the
properties listed in the Schedule ‘J’ (1 to 8 properties) were
considered as the self-acquired properties of Late Shri E
Kumar Sahoo.
(ii) the Respondent No. 1 (herein Original Plaintiff) was held
entitled to 1/6th share in the ancestral properties and 1/3rd
share in the self-acquired properties of Late Shri Kumar
Sahoo. The Civil Court also directed that the plaintiff was F
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 4/6th share in the ancestral properties and 1/3rd share in G
the self-acquired properties of Late Shri Kumar Sahoo
including the mesne profits.
11. It is pertinent to note that as against the judgment and decree
of the Trial Court referred to above, it is only the Defendant No. 1, who
thought fit to file F.A. No. 359 of 1986 before the High Court of Orissa. H
34 SUPREME COURT REPORTS [2023] 5 S.C.R.

A This appeal was essentially filed on the ground that all the properties of
Late Shri Kumar Sahoo, as scheduled in the plaint should have been
held to be ancestral properties.
12. It appears from the materials on record that while the first
appeal referred to above was pending before the High Court, the
B Defendant No. 2 (Respondent No. 2 herein) entered into a settlement
with the Defendant No.1 thereby relinquishing her share in accordance
with the decree passed by the Trial Court in lieu of consideration of Rs.
50, 000/- and the portions of land in Schedule ‘A’ and ‘B’. In such
circumstances referred to above, a compromise petition dated 29.03.1991
duly signed on affidavit by the Defendant Nos. 1 and 2 resply, was filed
C before the High Court which came to be registered as the Miscellaneous
Case No. 643 of 1990 in F.A. No. 359 of 1986 referred to above.
13. The learned Single Judge of the High Court, while disposing
of the F.A. No. 359 of 1986 observed as under:
D “4. In this appeal, it is first contended that certain properties
having been given to the daughters by the father during his
life time and certain properties having been gifted to them at
the time of their marriage and certain other properties having
been purchased by the father in the names of the two
daughters, namely plaintiff and Defendant No. 2, they are
E not entitled to any separate share after death of the father.
5. There is no challenge as such to the validity of the gift
deeds, if any, in favour of the daughters at the time of their
marriage. There is also no material to indicate that certain
properties had been purchased in the names of the daughters
F as name-lenders and actually the property belonged to the
father. Therefore, even assuming that certain properties had
been gifted and had been purchased in the names of plaintiff
and Defendant No. 2, that cannot be a ground to negate the
right of succession of the plaintiff and Defendant No. 2, which
G accrued after death of the father.
6. The learned counsel for the appellant also contended that
some properties were self-acquired properties of Defendant
No. 1 himself. A perusal of the written statement indicates
that no such specific case had been made out in the written
statement, nor any such material is available on record. In
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 35
& ORS. [J. B. PARDIWALA, J.]

absence of any evidence worth the name, it is difficult to accept A
such a contention raised by the appellant.
7. The learned counsel appearing for the appellant then
contended that during pendency of the appeal, a compromise
has been effected between the present appellant and
Respondent No. 2, wherein Respondent No.2 has given up B
her share in favour of Defendant No. 1. Since such
compromise is otherwise lawful and it does not prejudicially
affect the right of the plaintiff, it can be given effect to and
the decree of the trial court is to be modified accordingly.”
8. Thus, though all other contentions of the appellant are not C
acceptable, in view of the compromise the decree of the trial
court is modified to the extent that Defendant No. 1 shall also
be entitled to the share of Respondent No. 2. In other words,
he would be entitled to 5/6th share in the ancestral property
and 2/3rd share in the separate properties as determined by
the trial court. The decree of the trial court is modified to the D
above extent.
9. It appears that during the pendency of the appeal, receivers
had been appointed at different times and presently Defendant
No. 1-appellant is continuing as the receiver. It further appears
that certain amounts have been deposited in this Court which E
have been kept in fixed deposit. The fixed deposit in this court
shall be renewed from time to time for appropriate period to
fetch maximum interest. The amount which is not yet kept in
fixed deposit shall also be kept in fixed deposit in similar
manner so that the amount can be disbursed in accordance F
with the direction to be made in the final decree after the
final decree proceedings are over. If the parties do not come
to any amicable arrangement, the plaintiff or Defendant No.
1 may initiate the final decree proceeding. The trial court
after making necessary adjustment towards any justified
expenditure, et cetera, shall pass a direction regarding G
disbursement of the amount in accordance with the shares
now indicated in this judgment. The receiver shall henceforth
act under the direction of the trial court and all necessary
obligation relating to accounting and maintenance of the
properties etc. shall be determined by the trial court and if H
36 SUPREME COURT REPORTS [2023] 5 S.C.R.

A any deposit is required to be made by the receiver, the same
shall be made in the trial court which shall make similar
arrangements regarding fixed deposits. Applications for
removal of the receiver or for imposing any fresh conditions
can be made before the trial court which is free to deal with
all such applications.” (Emphasis supplied)
B
14. The Defendant No. 1 (Appellants herein) continued with the
litigation by filing the Letters Patent Appeal under Chapter VI of the
Rules of High Court of Orissa, 1948. The Letters Patent Appeal was
filed essentially on the ground that the learned Single Judge of the High
Court had failed to correctly adjudicate the issue whether some of the
C properties as mentioned in the schedule to the plaint were self-acquired
properties of Late Shri Kumar Sahoo or all the properties were ancestral
properties.
15. The Defendant No. 1 (Appellants) went in appeal before the
Division Bench of the High Court essentially on the ground that all the
D properties were ancestral as the same are derived out of the same nucleus
of the existing ancestral properties. The appeal before the Division Bench
was registered as the Appeal bearing No. AHO No. 133 of 2000.
16. On 28.06.2001, the Defendant No. 2 (Respondent No. 2 herein)
challenged the validity of the settlement deed referred to above vide
E cross appeal in the AHO No. 133 of 2000.
17. In the Letters Patent Appeal filed by the Appellants herein,
the Court addressed itself on the following points of determination:
“(i) whether the findings and reasons recorded on the
F contentious issues by the learned trial judge are either
erroneous or error in law warranting interference by this
Court in exercise of its power?
(ii) whether the first appellate judge in not dealing with the
grounds urged by the first defendant by framing appropriate
point on the findings recorded on the contentious issues by
G
the learned trial court, this court requires interference with
the impugned judgment in this appeal though, this Court’s
jurisdiction in this Letter Patent Appeal is also analogous to
the first appellate court?

H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 37
& ORS. [J. B. PARDIWALA, J.]

(iii) whether the findings recorded in issue no.5, holding that A
some of the schedule properties are self-acquired properties
of late Kumar Sahoo is erroneous or error in law and liable
to be interfered with by this Court in this appeal?
(iv) whether the compromise petition filed by the counsel for
defendants 1 & 2 In the First Appeal without special B
authorization in their favour for signing the compromise
petition by defendant no. 2, and plaintiff is not a party to the
compromise petition, could have been accepted by the learned
Single Judge and modified the judgment of the trial court in
so far as the share assigned to the defendant no.2, the same
is legal and valid? C

(v) what decree the parties are entitled to?”
18. The Division Bench of the High Court vide its impugned
judgment and order dated 5.05.2011 dismissed the appeal i.e., the AHO
No. 133 of 2000 filed by the Defendant No. 1 (Appellant herein) and D
allowed the cross appeal filed by the Defendant No. 2. Thus, the Division
Bench of the High Court set at naught the compromise entered into
between the Defendants.
19. In such circumstances referred to above, the Appellants (Legal
heirs of the Original Defendant No. 1) are here before this Court with E
the present appeals.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
20. Mr. R. Basant, the learned Senior Counsel appearing for the
appellants vehemently submitted that the courts below committed a serious
error in recording a finding that the properties in Schedule ‘J’ (1 to 8 F
properties) were self-acquired properties of Late Shri Kumar Sahoo.
According to Mr. Basant all the properties devolving upon the Plaintiff
and Defendants are ancestral in nature.
21. It was submitted that there is nothing on record to indicate
that Late Shri Kumar Sahoo had any independent source of income G
through which, he during his lifetime had acquired certain properties
which, does not form part of the ancestral properties. According to Mr.
Basant, the J series properties (1 to 8 properties) were bought by Late
Shri Kumar Sahoo with the aid of the income derived from the ancestral
properties and in such circumstances, the J series (1 to 8 properties)
H
38 SUPREME COURT REPORTS [2023] 5 S.C.R.

A would form part of the same nucleus of existing ancestral properties
which could now be said to have been devolved on the Plaintiff and the
Defendants as ancestral properties.
22. Mr. Basant, thereafter, addressed the Court on the effect of
the Hindu Succession (Amendment) Act, 2005 (for short, ‘the
B 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-
C 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
D properties. The disposition which took place in 1991 cannot be permitted
to be unsettled in view of the 2005 Amendment.
23. He submitted that the retrospective effect of the 2005
Amendment would cause havoc to the alienation made between 1965
and 2005 and in such circumstances, the rights of the Respondent No. 1
E (Plaintiff), if any, would accrue to the heirs qua the unalienated/
encumbered ancestral property, as available with the nucleus of the joint
family property with effect from 20.12.2004 only.
24. Mr. Basant submitted that as the alienations which might have
been taken place prior to 20.12.2004 cannot be reopened in order to
F ascertain which properties are available for partition, the matter should
be remitted to the Trial Court.
25. He further submitted that in accordance with the proviso to
sub-section (1) of Section 6 of the Act 1956 (as amended on 9.09.2005)
no disposition or alienation including partition or testamentary disposition
G of property which took place before 20.12.2004 shall be invalidated or
set aside on account of the 2005 Amendment.
26. Mr. Basant in support of his aforesaid submission invited the
attention of this Court to the decision of this Court in the case of Vineeta
Sharma v. Rakesh Sharma and Others reported in (2020) 9 SCC 1,
more particularly, the observations in para 76 at page 58, which reads
H
thus:
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 39
& ORS. [J. B. PARDIWALA, J.]

“76. It was argued that in case Parliament intended that the A
incident of birth prior to 2005 would be sufficient to confer
the status of a coparcener, Parliament would need not have
enacted the proviso to Section 6(1). When we read the
provisions conjointly, when right is given to the daughter of
a coparcener in the same manner as a son by birth, it became
B
necessary to save the dispositions or alienations, including
any partition or testamentary succession, which had taken
place before 20-12-2004. A daughter can assert the right on
and from 9-9-2005, and the proviso saves from invalidation
the above transactions.” (Emphasis supplied)
27. Mr. Basant submitted that there was no good reason for the C
High Court to look into the validity and execution of the settlement deed
between the Defendant Nos. 1 and 2 resply. If all the properties are
considered to be ancestral, the Plaintiff is entitled to 1/6th share of the
total ancestral properties, while the Defendant No. 1 would be entitled
to 5/6th share of the total ancestral property. He submitted that in the D
event, it is determined that the J series properties (1 to 8 properties) are
in fact self-acquired, then the Plaintiff is entitled to 1/6th share of the
ancestral property and 1/3rd share of the self-acquired property, while
the Defendant No. 1 would be entitled to 5/6 th share of the total ancestral
property and 2/3rd share of the self-acquired property.
E
28. In support of his submission that the settlement between
Defendant Nos. 1 and 2 resply was lawful, just and proper, he relied on
the following decisions of this Court:
(i) Bai Chanchal and Others v. Syed Jalaluddin and Others
reported in (1970) 3 SCC 124 at para 8, F
(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,
G
(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.
H
40 SUPREME COURT REPORTS [2023] 5 S.C.R.

A 29. In such circumstances referred to above, Mr. Basant prays
that there being merit in his appeals, the same may be allowed and the
impugned judgment and order passed by the High Court be modified
accordingly.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
B NO. 1 (ORIGINAL PLAINTIFF)
30. Ms. B. Sunita Rao, the learned counsel appearing for the
Respondent No. 1 (Original Plaintiff) vehemently submitted that no error
not to speak of any error of law could be said to have been committed
by the High Court in passing the impugned judgment and decree. She
C submitted that in view of the decision of this Court in the case of Vineeta
Sharma (supra) the Plaintiff is now entitled to 1/3rd share in all the
properties of Late Shri Kumar Sahoo, which were available at the time
of filing of the suit. She submitted that in view of the decision of this
Court, in the case of Ganduri Koteshwaramma and Another v. Chakiri
Yanadi and Another reported in (2011) 9 SCC 788, the preliminary
D decree can be awarded/altered or modified in the event of the changed
circumstances, even if no appeal has been filed.
31. The learned counsel further submitted that in view of the
amendment of 2005 to Section 6 of the Act 1956 and the decision of this
Court in case of Vineeta Sharma (supra) the daughters are entitled to
E equal share with that of the son in the coparcenary properties. The
Plaintiff being one of the daughters of Late Kumar Sahoo is entitled to a
larger and equal share in the ancestral property and in such circumstances
the decree now needs to be modified on account of the operation of law.
32. The learned counsel submitted that the Plaintiff and Defendants
F are now each entitled to 1/3rd share of both ancestral and self-acquired
properties of Late Kumar Sahoo. While explaining the true import of the
operation of the amended provision of Section 6(1) of the Act 1956, she
submitted that the alienations before 20.12.2004 are permitted but the
property alienated would fall to the share of the co-parcener, who made
G the alienation, if no legal binding necessity is proved. The learned counsel
pointed out that the Trial Court has held that alienation would be a part
of the share of the Defendant No. 1. She submitted that any alienation
after the date of filing of the suit would be hit by the doctrine of lis
pendens. The alienation prior to the filing of the suit was considered by
the Trial Court and specific finding in that regard has been recorded.
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 41
& ORS. [J. B. PARDIWALA, J.]

33. It was pointed out that out of 4.408 acres of land in Schedule A
‘A’ and ‘B’ properties, the unencumbered property available for immediate
division is 3.762 acres (around 94 guntas). It was also pointed out that
full extent of the suit properties in Schedule ‘C’, ‘D’, ‘E’ and ‘F’ resply
are available for division, as at the time of the preliminary decree.
34. As regards the settlement between the Defendant Nos. 1 and B
2, the learned counsel submitted that the Plaintiff was never a part of
the compromise. No notice was issued to her nor she had put her signature
on any part of the compromise deed or had agreed to the terms of the
compromise. According to the learned counsel, the Plaintiff never joined
in the settlement. On the issue of disbursement of the receivership amount
deposited in the Court, the counsel submitted that the Plaintiff is 84 years C
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 1/3rd 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 D
treatment etc.
35. In the written submissions filed by the learned counsel appearing
for the Respondent No. 1, the defaults alleged to have been committed
by the Defendant No. 1 as narrated in IA No. 190628 of 2022 has been
highlighted as under: E
“1. Modification of the superstructures on suit property
without leave of the Court. (Relevant page 10-13 of IA)
2. Dues with regard to suit properties:
a. Water Bills - Rs. 51,478/- F
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) G
3. Illegal filling of two Jalasaya in Suit properties in
contempt of the order of the Hon’ble High Court (Reports
of tahsildar, Cuttack Municipal Corporation and FIR
filed by police on complaint of tahsildar are annexed,
Relevant pages 17-20 of IA) H
42 SUPREME COURT REPORTS [2023] 5 S.C.R.

A 4. Installation of 100 Kw Electric transformer on suit
property after getting permission for different plot.
(Relevant Page 21 of IA)
5. Obtained permission for Electric substation of 500 KVA
for suit property by forging signature of plaintiff and
B Defendant 2 (in 2016 whereas Defendant no. 2 died in
2008) (Relevant Page 22 of IA)
6. A case for authorized construction on suit properties has
been instituted by Cuttack Development Authority being
U.C. No. 249/2016. (Relevant Page 23 of IA)”
C 36. The learned counsel vehemently submitted that the Defendant
No. 2 should be removed as a receiver forthwith and the Plaintiff should
be appointed as the receiver of the properties.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
NOS. 3, 4, 5, 7 AND 8 RESPLY (LEGAL HEIRS OF THE
D ORIGINAL DEFENDANT NO. 2)
37. Mr. V. Chitambaresh, the learned Senior Counsel addressed
himself on four issues:
(i) Whether the properties as scheduled in the plaint are
ancestral or self-acquired properties of the predecessor-
E
in-interest of the plaintiff and defendants 1 and 2 and what
share the parties are entitled to?
(ii) Whether a cross-appeal is maintainable for the purpose of
challenging the alleged compromise?
F (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?
G (v) Whether the counsel can sign the Compromise Petition
without an express consent?
38. On the first issue, the learned Senior Counsel submitted that
there is a concurrent finding on the nature of the suit properties recorded
by all the three courts i.e., the Trial Court, the Single Judge of the High
H Court and the Division Bench of the High Court. He would submit that
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 43
& ORS. [J. B. PARDIWALA, J.]

the Plaintiff as well as the Defendant No. 2 being daughters and co- A
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
B
that even if no appeal has been filed by the Plaintiff and the Defendant,
the shares will have to be determined in accordance with the amendment
and the law as laid down in Vineeta Sharma (supra). Over and above
the share reckoned in the alleged compromise in dispute, the Defendant
No. 2 would be entitled to additional 1/6th share in the ancestral property.
39. On the second issue referred to above, the learned Senior C
Counsel submitted that a cross-appeal is maintainable for the purpose of
challenging the compromise. He submitted that a cross-appeal under
Order XLI Rule 22 of the CPC is as good as a regular first appeal and
the same would be maintainable, even if, the regular first appeal is
dismissed or withdrawn. A cross-appeal is an exercise of substantive D
right of appeal and only the procedure would vary.
40. The learned Senior Counsel also invited the attention of this
Court to the provisions of Order XLIII Rule 1-A (2) of the CPC. He
would submit that the cross-objector is entitled under Order XLI Rule
22 of the CPC read with Order XLIII Rule 1-A (2) of the CPC to E
contend in his or her cross-appeal that the alleged settlement deed or
agreement should not have been reckoned as a valid compromise and
recorded under Order XXIII Rule 3 of the CPC.
41. In such circumstances referred to above, the learned Senior
Counsel prays that there being no merit in the appeals the same may be F
dismissed and the shares of the parties be determined in accordance
with the 2005 Amendment.
ANALYSIS
42. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the following questions G
fall for our consideration:
(i) In what manner, the rights of the parties would be governed
keeping in mind the dictum as laid by this Court in its decision in the case
of Vineeta Sharma (supra)
H
44 SUPREME COURT REPORTS [2023] 5 S.C.R.

A (ii) Whether the High Court was justified in declaring the settlement
between the appellants herein (Defendant No. 1) and Respondent No. 2
(Defendant No. 1) as invalid? In other words, whether the High Court
was right in allowing the cross-appeal filed by the Original Defendant
No. 2 (Respondent No. 2 herein).
B 43. Before adverting to the rival submission canvassed on either
side, we should give a fair idea as regards the history and development
of Hindu Law as well as look at the Law Commission Report, Report of
the Standing Committee of Parliament and the Statement of Objects
and Reasons of the Bill introduced in Parliament with the purpose of
finding out the true intent of the Parliament in amending Section 6 of the
C Act 1956 by the 2005 Amendment.
44. We have traced the history and development of Hindu Law
from a Full Bench decision of the Bombay High Court, in the case of
Badrinarayan Shankar Bhandari and Others v. Omprakash
Shankar Bhandari reported in AIR 2014 Bom 151 (FB).
D
Old Hindu Law
45. Before the enactment of the Principal Act, Hindus were
covered by shastric and customary law which varied from region to
region. Principally, there were two schools of Hindu Law in India i.e.
E Dayabhaga which was prevalent in eastern part of India i.e. Bengal and
the adjoining areas and Mitakshara which was prevalent in the rest of
India. Under the Mitakshara School of Hindu Law, woman in a joint
Hindu family had merely a right of maintenance/ sustenance but had no
right of inheritance to property. The basis of Hindu joint family was a
common male ancestor and the properties of the family were held as a
F coparcenary property with male member of the family having a right to
the property by virtue of birth and their interest in the coparcenary
property would keep varying depending upon the death or a birth of a
male in the joint Hindu Family. The property of a male coparcener on his
death used to pass by survivorship in the Mitakshara School of Hindu
G Law. No female is a member of the coparcenary though, she is a member
of the joint Hindu family. The coparcenary would normally consist up to
four degrees i.e. the common ancestor (coparcener), his son, grandson
and great grandson.
46. Under the Dayabhaga School of Hindu Law, the daughters
also got equal share along with their brothers. Under the Dayabhaga
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 45
& ORS. [J. B. PARDIWALA, J.]

School property is transmitted by Succession and not by Survivorship. In A
this School, a female could be a coparcener. So far as the Dayabhaga
School was concerned, there was no concept of a coparcenary property
and every member of a Hindu family would hold property in his/her own
right and was entitled to dispose of the property as he/she deems fit
either by gift or Will. There was no concept of passing of property by
B
survivorship nor did a Hindu male in Dayabhaga School acquire rights to
property merely by virtue of his birth. Consequently, women had a right
equal to the rights to that of men belonging to the family in the Dayabhaga
School of Hindu Law.
47. The earliest legislation with regard to right of female inheritance
was made in 1929 called the Hindu Law of Inheritance Act, 1929. This C
Act conferred inheritance right to three female heirs- son’s-daughter,
daughter’s-daughter and sister. Thus, bringing about restrictions on the
exclusive Rule of Survivorship. The next legislation was the Hindu
Women’s Right to Property Act 1937. This Act enabled the widow to
succeed along with the son of the deceased in equal share to the property D
of her deceased husband. However, the widow was entitled only to
limited estate in the property i.e. life estate and could not dispose of the
property during her life time.
48. In 1950, while framing the Constitution, Articles 14, 15(2) &
(3) and 16 of the Constitution of India, sought inter alia to restrain practice E
of discrimination against women and made equal treatment of women a
part of the fundamental rights guaranteed under the Constitution. In line
with the above Constitutional objective, the Parliament enacted the Hindu
Succession Act,1956 i.e. the Principal Act. This Act applies to all Hindus
including Buddhists, Jains and Sikhs. It lays down a uniform and
comprehensive system of inheritance and applies to all Hindus, whether F
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 G
of the Principal Act (pre-amended Section 6) inter alia provided that
the interest of a coparcener in the coparcenary property if not disposed
of by Will under Section 30 of the Principal Act, would devolve in terms
of pre-amended Section 6. The main part of pre-amended Section
6 provided that the right of male Hindu at the time of his death in the
H
46 SUPREME COURT REPORTS [2023] 5 S.C.R.

A coparcenary property will devolve by survivorship. However, the proviso
provided that if the deceased coparcener has any female relatives
specified in Class I of the Schedule to the Act, then the property will
devolve in terms of pre-amended Section 6. The Explanation 1 provides
that there would be notional partition immediately before his death so as
to allocate the share in the coparcenary to the deceased coparcener.
B
49. It is interesting to note that the Hindu Code Bill wanted to do
away with the Mitakshara coparcenary completely. However, the same
was opposed to and the erstwhile Section 6 was enacted in the Principal
Act. Consequently, if a partition took place in the coparcenary property,
then each male coparcener would get his share and the mother and
C wife/widow would not become a coparcener but would get a share in
the coparcenary property. But a daughter would get no share in the
coparcenary property. The daughter would only get a share as one of
the heirs on the death of coparcener, out of the share of the deceased in
the coparcenary property on notional partition, in view of proviso to pre-
D amended Section 8 of the Principal Act. In terms of Section 30 of the
Principal Act, a Hindu male can dispose of his entire property including
his interest in coparcenary property by testamentary disposition/ Will
and also in the process deprive his female heirs of any share.
Making of Amendment Act, 2005
E 50. Keeping the aforesaid position of Hindu Law, in its 174th Report
(May 2000), the Law Commission of India was of the view that the
gender reforms were called for to ensure equality. The Commission
noted the fact that in various States such as Kerala, Andhra Pradesh,
Tamil Nadu, Maharashtra and Karnataka, attempts had already been
F made to bring about the gender equality. But all these States, except
Kerala, while conferring coparcenary rights on daughters also denied
such rights to daughters married prior to State Acts coming into force.
51. The Law Commission recommended that the daughter should
be made coparcener by birth and that she should be entitled to get a
G share on partition and/or on the death of the male coparcener. The
Commission also recommended that a daughter who is married after the
commencement of the Amendment Act, should be entitled to a share in
the ancestral property as she has already become a coparcener prior to
her marriage. One more recommendation of the Law Commission was
to do away with the erstwhile Section 23 of the Principal Act which
H provided that a woman would have a right to stay in the family house as
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 47
& ORS. [J. B. PARDIWALA, J.]

a member of the joint Hindu Family but unlike a male, she would have no A
right to demand a partition of the family house. The Commission
recommended that she should have rights equal to the male in respect of
a family house.
52. The Law commission also observed that the Law of
Succession falls under Entry V of the List III (concurrent list) in VII B
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 Principal Act on
amendment.
53. On 20th December, 2004, the Hindu Succession Amendment C
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:- D
STATEMENT OF OBJECTS AND REASONS
The Hindu Succession Act, 1956 has amended and codified
the law relating to intestate succession Hindus and gave rights
which were till then unknown in relation to women’s property.
However, it does not interfere with the special rights of those E
who are members of Hindu Mitakshara coparcenary except
to provide rules for devolution of the interest of a deceased
male in certain cases. The Act-lays down a uniform and
comprehensive system of inheritance and applies, inter alia,
to persons governed by the Mitakshara and Dayabhaga F
schools and also to those governed previously by the
Murumakkattayam, Aliyasantana and Nambudir laws.”
The Act applies to every person who is a Hindu by 28 of 72
SA.566.2011 religion in any of its forms or developments
including a Virashaiva, a Lingayat or a follower of the
G
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. H
48 SUPREME COURT REPORTS [2023] 5 S.C.R.

A 2. Section 6 of the Act deals with devolution of interest of a
male Hindu in coparcenary property and recognizes the rule
of devolution by survivorship among the members of the
coparcenary. The retention of the Mitakshara coparcenary
property without including the females in it means that the
females cannot inherit in ancestral property as their male
B
counterparts to. The law by excluding the daughter from
participating in the coparcenary ownership not only
contributes to her discrimination on the ground of gender
but also has led to oppression and negation of her fundamental
right of equality guaranteed by the Constitution. Having
C 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.
D
3. It is proposed to remove the discrimination as contained
in section 6 of the Hindu Succession Act, 1956 by giving equal
rights to daughters in the Hindu Mitakshara coparcenary
property as the sons have. Section 23 of the Act disentitles a
female heir to ask for partition in respect of a dwelling house
E wholly occupied by a joint family until the male heirs choose
to divide their respective shares therein. It is also proposed to
omit the said section so as to remove the disability on female
heirs contained in that section.”
4. The above proposals are based on the recommendations of
F the Law Commission of India as contained in its 174th Report
on ‘Property Rights of Women: Proposed Reform under the
Hindu Law.
5. The Bill seeks to achieve the above objects.”

G (Emphasis supplied)
54. The Bill inter alia provided in proviso to proposed Section
6(1) that the Amendment Act would not apply to a daughter married
before the commencement of the Amendment Act and also that
the Amendment Act will have no application to a partition in case the
partition had been affected before the commencement of the Amendment
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 49
& ORS. [J. B. PARDIWALA, J.]

Act. The aforesaid Bill was thereafter referred to the Standing committee A
of Parliament. The Standing Committee after recording the historical
growth of Hindu Law and Gender inequality with regard to the property
right practiced against a female Hindu suggested that proviso 1 to
proposed Section 6(1) of the Bill which sought to exclude the daughter
married before the commencement of the Amendment Act from the
B
benefit of the Act should be done away with.
55. The Standing Committee also suggested that the partition of
the Hindu family property should be properly defined in the Amendment
Act. It was suggested that partition for all purposes should be either by
registered documents or by decree of Court. However, where oral partition
is pleaded, the same should be backed by evidence in support. Further C
omission of Section 23 as suggested by the Law Commission, will enable
the Hindu Women to seek partition of a family house occupied by the
family members just as male member could seek partition.
56. Thereafter, on 9.09.2005, the Amendment Act, 2005 came to
be passed as Act 39 of 2005. Section 3 of the Amendment Act, 2005 D
substituted erstwhile Section 6 of the Principal Act. The Amendment
Act, 2005 did away with exclusion of married daughter from getting the
benefit of the amendment and also added a proviso to Section 6(1) of
the Principal Act saving partitions done prior to 20.12.2004 (the date of
introduction of the Bill in Rajya Sabha). The Explanation to Section 6(5) E
of the Principal Act provided that for the purposes of the Section 6 of
the Act partition only means partition by registered document or decree
of Court.
57. Before averting to the rival submissions canvassed on either
side, it would be apposite to reproduce the erstwhile Section 6 as F
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 - G
when a male Hindu dies after the commencement of this Act,
having at the time of his death an interest in a Mitakshara
coparcenary property, his interest in the property shall devolve
by survivorship upon the surviving members of the
coparcenary and not in accordance with this Act;
H
50 SUPREME COURT REPORTS [2023] 5 S.C.R.

A Provided that, if the deceased had left him surviving a female
relative specified in class I of the Schedule or a male relative
specified in that class who claims through such female
relative, the interest of the deceased in the Mitakshara
coparcenary property shall devolve by testamentary or
intestate succession, as the case may be, under this Act and
B
not by survivorship.
Explanation 1 - For the purposes of this section, the interest
of a Hindu Mitakshara coparcener shall be deemed to be the
share in the property that would have been allotted to him if
a partition of the property had taken place immediately before
C his death, irrespective of whether he was entitled to claim
partition or not.
Explanation 2 - Nothing contained in the proviso to this section
shall be construed as enabling a person who has separated
himself from the coparcenary before the death of the deceased
D or any of his heirs to claim on intestacy a share in the interest
referred to therein.”
58. The substituted Section 6 of the Principal Act as amended by
the Amendment Act, 2005 which is in force w.e.f. 9.09.2005 reads as
under:
E
“6. Devolution of interest of coparcenary property.—
(1) On and from the commencement of the Hindu Succession
(Amendment) Act, 2005, in a Joint Hindu family governed by
the Mitakshara law, the daughter of a coparcener shall,
F (a) by birth become a coparcener in her own right in the same
manner as the son;
(b) have the same rights in the coparcenary property as she
would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said
G coparcenary property as that of a son, and any reference to
a Hindu Mitakshara coparcener shall be deemed to include
a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect
or invalidate any disposition or alienation including any
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 51
& ORS. [J. B. PARDIWALA, J.]

partition or testamentary disposition of property which had A
taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled
by virtue of sub-section (1) shall be held by her with the
incidents of coparcenary ownership and shall be regarded,
notwithstanding anything contained in this Act or any other B
law for the time being in force in, as property capable of
being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu
Succession (Amendment) Act, 2005, his interest in the property
of a Joint Hindu family governed by the Mitakshara law, shall C
devolve by testamentary or intestate succession, as the case
may be, under this Act and not by survivorship, and the
coparcenary property shall be deemed to have been divided
as if a partition had taken place and,—
(a) the daughter is allotted the same share as is allotted to a D
son;
(b) the share of the pre-deceased son or a pre- deceased
daughter, as they would have got had they been alive at the
time of partition, shall be allotted to the surviving child of
such pre-deceased son or of such pre-deceased daughter; E
and
(c) the share of the pre-deceased child of a pre-deceased son
or of a pre-deceased daughter, as such child would have got
had he or she been alive at the time of the partition, shall be
allotted to the child of such pre-deceased child of the pre- F
deceased son or a pre-deceased daughter, as the case may
be.
Explanation. — For the purposes of this sub- section, the
interest of a Hindu Mitakshara coparcener shall be deemed
to be the share in the property that would have been allotted
G
to him if a partition of the property had taken place
immediately before his death, irrespective of whether he was
entitled to claim partition or not.
(4) After the commencement of the Hindu Succession
(Amendment) Act, 2005, no court shall recognise any right to
H
52 SUPREME COURT REPORTS [2023] 5 S.C.R.

A proceed against a son, grandson or great- grandson for the
recovery of any debt due from his father, grandfather or great-
grandfather solely on the ground of the pious obligation under
the Hindu law, of such son, grandson or great-grandson to
discharge any such debt:
B Provided that in the case of any debt contracted before the
commencement of the Hindu Succession (Amendment) Act,
2005, nothing contained in this sub- section shall affect—
(a) the right of any creditor to proceed against the son,
grandson or great-grandson, as the case may be; or
C (b) any alienation made in respect of or in satisfaction of,
any such debt, and any such right or alienation shall be
enforceable under the rule of pious obligation in the same
manner and to the same extent as it would have been
enforceable as if the Hindu Succession (Amendment) Act,
D 2005 had not been enacted.
Explanation.—For the purposes of clause (a), the expression
“son”, “grandson” or “great- grandson” shall be deemed to
refer to the son, grandson or great-grandson, as the case
may be, who was born or adopted prior to the commencement
E of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a partition,
which has been effected before the 20th day of December,
2004.”
Explanation.- For the purposes of this section “partition”
F means any partition made by execution of a deed of partition
duly registered under the Registration Act, 1908 (16 of 1908)
or partition effected by a decree of a court.”
59. Before we proceed to discuss the dictum, as laid by this Court
in Vineeta Sharma (supra) we must look into the decision of this Court
G 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
H joint Hindu family on and from 9-9-2005. The legislature has
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 53
& ORS. [J. B. PARDIWALA, J.]

now conferred substantive right in favour of the daughters. A
According to the new Section 6, the daughter of a coparcener
becomes a coparcener by birth in her own rights and liabilities
in the same manner as the son. The declaration in Section 6
that the daughter of the coparcener shall have same rights
and liabilities in the coparcenary property as she would have
B
been a son is unambiguous and unequivocal. Thus, on and
from 9-9-2005, the daughter is entitled to a share in the
ancestral property and is a coparcener as if she had been a
son.
12. The right accrued to a daughter in the property of a joint
Hindu family governed by the Mitakshara law, by virtue of C
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) where
the disposition or alienation including any partition has taken D
place before 20-12-2004; and (ii) where testamentary
disposition of property has been made before 20-12-2004.
Sub-section (5) of Section 6 leaves no room for doubt as it
provides that this section shall not apply to the partition which
has been effected before 20-12-2004. For the purposes of
new Section 6 it is explained that “partition” means any E
partition made by execution of a deed of partition duly
registered under the Registration Act, 1908 or partition
effected by a decree of a court. In light of a clear provision
contained in the Explanation appended to sub-section (5) of
Section 6, for determining the non-applicability of the section, F
what is relevant is to find out whether the partition has been
effected before 20-12-2004 by deed of partition duly
registered under the Registration Act, 1908 or by a decree of
a court. In the backdrop of the above legal position with
reference to Section 6 brought in the 1956 Act by the 2005
Amendment Act, the question that we have to answer is as to G
whether the preliminary decree passed by the trial court on
19-3-1999 and amended on 27-9-2003 deprives the appellants
of the benefits of the 2005 Amendment Act although final
decree for partition has not yet been passed.
H
54 SUPREME COURT REPORTS [2023] 5 S.C.R.

A 13. The legal position is settled that partition of a joint Hindu
family can be effected by various modes, inter alia, two of
these modes are (one) by a registered instrument of a partition
and (two) by a decree of the court. In the present case,
admittedly, the partition has not been effected before 20-12-
2004 either by a registered instrument of partition or by a
B
decree of the court. The only stage that has reached in the
suit for partition filed by Respondent 1 is the determination
of shares vide preliminary decree dated 19-3-1999 which came
to be amended on 27-9-2003 and the receipt of the report of
the Commissioner.
C 14. A preliminary decree determines the rights and interests
of the parties. The suit for partition is not disposed of by
passing of the preliminary decree. It is by a final decree that
the immovable property of joint Hindu family is partitioned
by metes and bounds. After the passing of the preliminary
D decree, the suit continues until the final decree is passed. If
in the interregnum i.e. after passing of the preliminary decree
and before the final decree is passed, the events and
supervening circumstances occur necessitating change in
shares, there is no impediment for the court to amend the
preliminary decree or pass another preliminary decree
E redetermining the rights and interests of the parties having
regard to the changed situation.”
60. Thus, in Ganduri Koteshwaramma (supra) this Court made
the following things explicitly clear:

F (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;
G (iii) The substantive right would not be available only if the
coparcenary property is disposed of or alienated including by any
partition or testamentary disposition of property before 20-12-2004
and;
(iv) If there is disposition of a coparcenary property by any partition,
H such partition must be by execution of a Deed of Partition duly
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 55
& ORS. [J. B. PARDIWALA, J.]

registered under the Registration Act, 1908 or effected by a decree A
of the Court.
(v) A preliminary decree of partition only determines the rights
and interests of the parties. It is only by a final decree that the
immovable property of joint Hindu family is partitioned by metes
and bounds. After the passing of the preliminary decree, the suit B
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 C
regard to the changed situation.
61. Before the position of law came to be settled by this Court in
Vineeta Sharma (supra) there were to decisions of this Court governing
the rights of the parties: (i) Prakash and Others v. Phulavati and
Others reported in (2016) 2 SCC 36 and (ii) Danamma alias Suman D
Surpur and Another v. Amar and Others reported in (2018) 3 SCC
343. In Prakash (supra) it was held that Section 6 is not retrospective in
operation and it would apply when both the coparcener and his daughter
were alive on the date of commencement of the Amendment Act i.e.,
9.09.2005. Accordingly, the provisions of Section 6 were held to be E
prospective. In Danamma (supra) this Court held that the amended
provisions of Section 6 conferred full rights upon the daughter coparcener.
Any coparcener including a daughter could claim a partition in the
coparcenary property.
62. In Danamma (supra), one Gurulingappa who was the father F
and coparcener of the claimant daughter, died in the year 2001, leaving
behind two daughters, two sons and a widow. Thus, the father of the
daughter and coparceners was not alive when the substituted provision
of Section 6 came into force. Accordingly, the daughters, sons and the
widow were given 1/5th share in the properties. In this background, this
Court took the view that when a daughter, claiming and demanding a G
share in the coparcenary property is alive on 9.09.2005, she would be
entitled to the benefit of the amended provision irrespective of the effect
whether a coparcener had died before the commencement of the
Amendment Act.
H
56 SUPREME COURT REPORTS [2023] 5 S.C.R.

A 63. A three-Judge Bench of this Court doubted the correctness of
the dictum as laid in Prakash (supra) as there was an apparent conflict
between the dictum as laid in Prakash (supra) and Danamma (supra)
referred to above. The question concerning the interpretation of Section
6 of the Act 1956 was referred to a larger Bench.
B 64. The larger Bench ultimately settled the position of law in
Vineeta Sharma (supra). The three-Judge Bench of this Court
considered the following main questions amongst the others:
(i) Whether the substituted Section 6 of the Hindu
Succession Act, 1956 would apply to cases where male
C coparcener had already died prior to the commencement
of the Amendment Act, 2005?
(ii) Liability of daughter for the debts contracted by the
deceased coparcener.
(iii) What is the interpretation, scope and impact of sub-
D section (5) of substituted Section 6 of the Hindu Succession
Act, 1956?
65. In Vineeta Sharma (supra) (paras 60, 68, 69 and 129), the
Court held that for the applicability of substituted Section 6 of the Hindu
Succession Act, 1956, it is not necessary that the male coparcener must
E be alive on the date of commencement of the Amendment Act, 2005
(i.e., 9.9.2005). Hence, it follows that the substituted Section 6 of the
Hindu Succession Act, 1956 is not confined to cases where male
coparcener dies after the commencement of the Amendment Act, 2005.
Substituted Section 6 also applies to cases where male coparcener had
F already died prior to the commencement of the Amendment Act, 2005.
66. The Court explained the difference between prospective statute,
retrospective statute and retroactive statute. It has been observed in
para 61:
“61. The prospective statute operates from the date of its
G enactment conferring new rights. The retrospective statute
operates backward and takes away or impairs vested rights
acquired under existing laws. A retroactive statute is the one
that does not operate retrospectively. It operates in futuro.
However, its operation is based upon the character or status
that arose earlier. Characteristic or event which happened in
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 57
& ORS. [J. B. PARDIWALA, J.]

the past or requisites which had been drawn from antecedent A
events. Under the amended Section 6, since the right is given
by birth, that is, an antecedent event, and the provisions
operate concerning claiming rights on and from the date of
Amendment Act.” (Emphasis supplied)
67. Interpreting sub-section (1) of substituted Section 6 of the Act B
1956, the Court opined in para 60 as under:
“60. The amended provisions of Section 6(1) provide that on
and from the commencement of the Amendment Act, the
daughter is conferred the right. Section 6(1)(a) makes
daughter by birth a coparcener “in her own right” and “in C
the same manner as the son”. Section 6(1)(a) contains the
concept of the unobstructed heritage of Mitakshara
coparcenary, which is by virtue of birth. Section 6(1)(b)
confers the same rights in the coparcenary property “as she
would have had if she had been a son”. The conferral of
right is by birth, and the rights are given in the same manner D
with incidents of coparcenary as that of a son and she is
treated as a coparcener in the same manner with the same
rights as if she had been a son at the time of birth. Though
the rights can be claimed, w.e.f. 9-9-2005, the provisions are
of retroactive application; they confer benefits based on the E
antecedent event, and the Mitakshara coparcenary law shall
be deemed to include a reference to a daughter as a
coparcener. At the same time, the legislature has provided
savings by adding a proviso that any disposition or alienation,
if there be any testamentary disposition of the property or
partition which has taken place before 20-12-2004, the date F
on which the Bill was presented in the Rajya Sabha, shall not
be invalidated.”
(Emphasis supplied)
68. The Court further observed in para 68 as follows:
G
“68. Considering the principle of coparcenary that a person
is conferred the rights in the Mitakshara coparcenary by birth,
similarly, the daughter has been recognised and treated as a
coparcener, with equal rights and liabilities as of that of a
son. The expression used in Section 6 is that she becomes
H
58 SUPREME COURT REPORTS [2023] 5 S.C.R.

A coparcener in the same manner as a son. By adoption also,
the status of coparcener can be conferred. The concept of
uncodified Hindu law of unobstructed heritage has been given
a concrete shape under the provisions of Sections 6(1)(a)
and 6(1) (b). Coparcener right is by birth. Thus, it is not at all
necessary that the father of the daughter should be living as
B
on the date of the amendment, as she has not been conferred
the rights of a coparcener by obstructed heritage. According
to the Mitakshara coparcenary Hindu law, as administered
which is recognised in Section 6(1), it is not necessary that
there should be a living, coparcener or father as on the date
C of the amendment to whom the daughter would succeed. The
daughter would step into the coparcenary as that of a son by
taking birth before or after the Act. However, daughter born
before can claim these rights only with effect from the date of
the amendment, i.e., 9-9-2005 with saving of past transactions
as provided in the proviso to Section 6(1) read with Section
D
6(5).” (Emphasis supplied)
69. The Court has further observed in para 69 as under:
“69. … Section 6(1) recognises a joint Hindu family governed
by Mitakshara law. The coparcenary must exist on 9-9-2005
E to enable the daughter of a coparcener to enjoy rights
conferred on her. As the right is by birth and not by dint of
inheritance, it is irrelevant that a coparcener whose daughter
is conferred with the rights is alive or not. Conferral is not
based on the death of a father or other coparcener. In case
living coparcener dies after 9-9-2005, inheritance is not by
F survivorship but by intestate or testamentary succession as
provided in substituted Section 6(3).” (Emphasis supplied)
70. Explaining sub-section (3) of substituted Section 6, the Court
observed in paragraph 66 as under:

G “66. With respect to a Hindu who dies after the commencement
of the Amendment Act, as provided in section 6(3) his interest
shall pass by testamentary or intestate succession and not by
survivorship, and there is a deemed partition of the
coparcenary property in order to ascertain the shares which
would have been allotted to his heirs had there been a
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 59
& ORS. [J. B. PARDIWALA, J.]

partition. The daughter is to be allotted the same share as a A
son; even surviving child of predeceased daughter or son
are given a share in case the child has also died then the
surviving child of such predeceased child of a predeceased
son or predeceased daughter would be allotted the same share,
had they been alive at the time of deemed partition. Thus,
B
there is a sea-change in substituted Section 6. In case of death
of coparcener after 9-9-2005, succession is not by
survivorship but in accordance with Section 6(3). The
Explanation to Section 6(3) is the same as Explanation I to
Section 6 as originally enacted. …” (Emphasis supplied)
71. The following propositions, amongst others, follow from the C
abovequoted paragraphs of the decision in Vineeta Sharma (supra):
(A) Sub-section (1) of the substituted Section 6 of the Hindu
Succession Act, 1956 recognises a joint Hindu family governed
by Mitakshara law.
D
(B) The coparcenary must exist on 9.9.2005, i.e., the date of
commencement of the Amendment Act, 2005.
(C) The daughter has been recognised and treated as a coparcener
by birth, with equal rights and liabilities as of that of a son.
(D) It is not necessary that a coparcener whose daughter is E
conferred with the rights is alive or not on the date 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 before the F
commencement of the Amendment Act, 2005 or after the
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
G
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).
H
60 SUPREME COURT REPORTS [2023] 5 S.C.R.

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

F “85. The right to claim partition is a significant basic feature
of the coparcenary, and a coparcener is one who can claim
partition. The daughter has now become entitled to claim
partition of coparcenary w.e.f. 9-9-2005, which is a vital
change brought about by the statute. A coparcener enjoys
the right to seek severance of status. Under Sections 6(1)
G and 6(2), the rights of a daughter are pari passu with a son.
In the eventuality of a partition, apart from sons and
daughters, the wife of the coparcener is also entitled to an
equal share. The right of the wife of a coparcener to claim
her right in property is in no way taken away.”
H (Emphasis supplied)
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 61
& ORS. [J. B. PARDIWALA, J.]

(B) As noted earlier, under the law pertaining to partition as existing A
prior to the Amendment Act, 2005, if there would be a partition of
coparcenary property between father (F) and sons (S1 and S2)
then the wife (W) of father (F) as well as widowed mother (M)
of father (F) would get one share equal share to that of a son (S1
or S2). This position continues to exist as is evident from the
B
observation made in the last portion of the above-quoted paragraph
85 of this Court’s decision. Hence, if there is a partition of
coparcenary property between father and sons (and now also
daughters), then wife of father as well as widowed mother of
father would get one share equal share to that of a son (or a
daughter). C
(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 D
clear intimation of his intention to separate, and there was
consequential severance of the status of jointness. Question before
this Court in Vineeta Sharma (supra) was: in case during the
pendency of partition suit or during the period between the passing
of preliminary decree and final decree in the partition suit, any
legislative amendment or any subsequent event takes place which E
results in enlargement or diminution of the shares of the parties or
alteration of their rights, whether such legislative amendment or
subsequent event can be into consideration and given effect to
while passing final decree in the partition suit. The Court held that
even though filing of partition suit brings about severance of status F
of jointness, such legislative amendment or subsequent event will
have to be taken into consideration and given effect to in passing
the final decree in the partition suit. This is because, the partition
suit can be regarded as fully and completely decided only when
the final decree is passed. It is by a final decree that partition of
property of joint Hindu Family takes place by metes and bounds. G
(See: paragraphs 89 to 102, and paragraphs 106, 114, 133 and
136).
The Court observed in para 107 as under:

H
62 SUPREME COURT REPORTS [2023] 5 S.C.R.

A “107. Once the constitution of coparcenary changes by
birth or death, shares have to be worked out at the time of
actual partition. The shares will have to be determined in
changed scenario. The severance of status cannot come
in the way to give effect to statutory provision and change
by subsequent event. The statutory fiction of partition is
B
far short of actual partition, it does not bring about the
disruption of the joint family or that of coparcenary is a
settled proposition of law. For the reasons mentioned
above, we are also of the opinion that mere severance of
status by way of filing a suit does not bring about the
C partition and till the date of the final decree, change in
law, and changes due to the subsequent event can be taken
into consideration.” (Emphasis supplied)
(D) Prior to the Amendment Act, 2005, partition in joint Hindu
Family could be made by oral partition or oral family settlement/
D family arrangement. If subsequently terms of such oral partition
or oral family settlement/family arrangement could be recorded
in a Memorandum. Such Memorandum was not required to be
registered. [See: paragraphs 115, 116, 119, 120, 121, 125 and 130].
74. As noted above, Explanation to substituted Section 6 provides
E that for the purposes of Section 6 “partition” means (i) any partition
made by execution of a deed of partition duly registered under the
Registration Act, 1908 (16 of 1908), or (ii) any partition effected by a
decree of a court. The Court in further considered the impact of the
aforesaid Explanation on the oral partition or oral family settlement/family
arrangement made prior to 20th December, 2004. The Court opined in
F para 124 as under:
“124. The intendment of amended Section 6 is to ensure that
daughters are not deprived of their rights of obtaining share
on becoming coparcener and claiming a partition of the
coparcenary property by setting up the frivolous defence of
G oral partition and/or recorded in the unregistered
memorandum of partition. The court has to keep in mind the
possibility that a plea of oral partition may be set up,
fraudulently or in collusion, or based on unregistered
memorandum of partition which may also be created at any
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 63
& ORS. [J. B. PARDIWALA, J.]

point of time. Such a partition is not recognised under Section A
6(5).” (Emphasis supplied)
75. The Court further held para 135 as under:
“135. A special definition of partition has been carved out in
the Explanation. The intendment of the provisions is not to
jeopardise the interest of the daughter and to take care of B
sham or frivolous transaction set up in defence unjustly to
deprive the daughter of her right as coparcener and prevent
nullifying the benefit flowing from the provisions as
substituted. The statutory provisions made in Section 6(5)
change the entire complexion as to partition. However, under C
the law that prevailed earlier, an oral partition was recognised.
In view of change of provisions of Section 6, the intendment
of legislature is clear and such a plea of oral partition is not
to be readily accepted. The provisions of Section 6(5) are
required to be interpreted to cast a heavy burden of proof
upon proponent of oral partition before it is accepted such D
as separate occupation of portions, appropriation of the
income, and consequent entry in the revenue records and
invariably to be supported by other contemporaneous public
documents admissible in evidence, may be accepted most
reluctantly while exercising all safeguards. The intendment E
of Section 6 of the Act is only to accept the genuine partitions
that might have taken place under the prevailing law, and are
not set up as a false defence and only oral ipse dixit is to be
rejected outrightly. The object of preventing, setting up of
false or frivolous defence to set at naught the benefit
emanating from amended provisions, has to be given full effect. F
Otherwise, it would become very easy to deprive the daughter
of her rights as a coparcener. When such a defence is taken,
the court has to be very extremely careful in accepting the
same, and only if very cogent, impeccable, and
contemporaneous documentary evidence in shape of public G
documents in support are available, such a plea may be
entertained, not otherwise. We reiterate that the plea of an
oral partition or memorandum of partition, unregistered one
can be manufactured at any point in time, without any
contemporaneous public document needs rejection at all
H
64 SUPREME COURT REPORTS [2023] 5 S.C.R.

A costs. We say so for exceptionally good cases where partition
is proved conclusively and we caution the courts that the
finding is not to be based on the preponderance of
probabilities in view of provisions of gender justice and the
rigour of very heavy burden of proof which meet intendment
of Explanation to Section 6(5). It has to be remembered that
B
the courts cannot defeat the object of the beneficial provisions
made by the Amendment Act. The exception is carved out by
us as earlier execution of a registered document for partition
was not necessary, and the court was rarely approached for
the sake of family prestige. It was approached as a last resort
C when parties were not able to settle their family dispute
amicably. We take note of the fact that even before 1956,
partition in other modes than envisaged under Section 6(5)
had taken place.” (Emphasis supplied). (Reference: Article titled
‘Changing Dimensions of Hindu Coparcenary and Section 6, Hindu
Succession Act, 1956 by Justice Satya Poot Mehrotra, Former
D
Judge Allahabad High Court.)
76. The reference was ultimately answered in paras 137.1 to 137.5
resply as under:
“137.1. The provisions contained in substituted Section 6 of
E the Hindu Succession Act, 1956 confer status of coparcener
on the daughter born before or after the amendment in the
same manner as son with same rights and liabilities.
137.2. The rights can be claimed by the daughter born earlier
with effect from 9-9-2005 with savings as provided in Section
F 6(1) as to the disposition or alienation, partition or
testamentary disposition which had taken place before the
20th day of December, 2004.
137.3. Since the right in coparcenary is by birth, it is not
necessary that father coparcener should be living as on 9-9-
G 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 purpose of
ascertaining share of deceased coparcener when he was
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 65
& ORS. [J. B. PARDIWALA, J.]

survived by a female heir, of Class I as specified in the A
Schedule to the 1956 Act or male relative of such female. The
provisions of the substituted Section 6 are required to be given
full effect. Notwithstanding that a preliminary decree has been
passed, the daughters are to be given share in coparcenary
equal to that of a son in pending proceedings for final decree
B
or in an appeal.
137.5. In view of the rigour of provisions of the Explanation
to Section 6(5) of the 1956 Act, a plea of oral partition cannot
be accepted as the statutory recognised mode of partition
effected by a deed of partition duly registered under the
provisions of the Registration Act, 1908 or effected by a decree C
of a court. However, in exceptional cases where plea of oral
partition is supported by public documents and partition is
finally evinced in the same manner as if it had been affected
(sic effected) by a decree of a court, it may be accepted. A
plea of partition based on oral evidence alone cannot be D
accepted and to be rejected outrightly.”
77. The decision of Vineeta Sharma (supra) also highlights that a
change in law during the pendency of an appeal must be considered and
appropriately applied. This Court relied upon United Bank of India,
Calcutta v. Abhijit Tea Company Private Limited and Others reported E
in (2000) 7 SCC 357, wherein, it was held that:
“20. Now, it is well settled that it is the duty of a court, whether
it is trying original proceedings or hearing an appeal, to take
notice of the change in law affecting pending actions and to
give effect to the same. (See G.P. Singh: Interpretation of F
Statutes, 7th Edn., p. 406.) If, while a suit is pending, a law
like the 1993 Act that the civil court shall not decide the suit,
is passed, the civil court is bound to take judicial notice of
the statute and hold that the suit — even after its remand —
cannot be disposed of by it.”
G
78. This Court in Vineeta Sharma (supra) clarified the entire
position as follows:
“107. Once the constitution of coparcenary changes by birth
or death, shares have to be worked out at the time of actual
partition. The shares will have to be determined in changed
H
66 SUPREME COURT REPORTS [2023] 5 S.C.R.

A scenario. The severance of status cannot come in the way to
give effect to statutory provision and change by subsequent
event. The statutory fiction of partition is far short of actual
partition, it does not bring about the disruption of the joint
family or that of coparcenary is a settled proposition of law.
For the reasons mentioned above, we are also of the opinion
B
that mere severance of status by way of filing a suit does not
bring about the partition and till the date of the final decree,
change in law, and changes due to the subsequent event can
be taken into consideration.
Xxx xxx xxx
C
114. In the instant case, the question is different. What has
been recognised as partition by the legislation under Section
6, accordingly, rights are to be worked out. This Court
consistently held in various decisions mentioned above that
when the rights are subsequently conferred, the preliminary
D decree can be amended, and the benefit of law has to be
conferred. Hence, we have no hesitation to reject the effect
of statutory fiction of the proviso to Section 6 as discussed
in Prakash v. Phulavati [(2016) 2 SCC 36 : (2016) 1 SCC
(Civ) 549] and Danamma [Danamma v. Amar, (2018) 3 SCC
E 343 : (2018) 2 SCC (Civ) 385]. If a daughter is alive on the
date of enforcement of the Amendment Act, she becomes a
coparcener with effect from the date of the Amendment Act,
irrespective of the date of birth earlier in point of time.”
APPLICATION OF THE AFORESAID PRINCIPLES OF
F LAW TO THE FACTS OF THE PRESENT CASE
79. Let us assume for the moment that the Trial Court would
have decreed the suit in favour of the plaintiff i.e., the daughter giving
her 1/3rd share uniformly in all the properties including the ancestral
properties. It could have been argued that the Trial Court could not have
G done so, having regard to the position of law, prevailing at the relevant
point of time. However, after the decision of this Court in the case of
Vineeta Sharma (supra) such allotment of share would be in accordance
with law. Let us also assume one another alternative. Take for instance,
the Trial Court would have decreed the suit giving (i) 1/3rd share to the
daughter in self-acquired property and (ii) giving 1/3rd share in the half
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 67
& ORS. [J. B. PARDIWALA, J.]

were of father’s portion of ancestral properties. This was the law A
prevailing at the relevant point of time and this is exactly what the Trial
Court has done in the present case, while passing the preliminary decree
as affirmed by the High Court. However, the law has now changed as
discussed above.
80. It is in the aforesaid background that daughters are entitled to B
1/3rd share in all the properties as scheduled in the plaint. The same
would be in accordance with the dictum as laid in Vineeta Sharma
(supra), while passing the final decree. At the cost of repetition, we
state that by virtue of the preliminary decree passed by the Trial Court,
which was confirmed by the Division Bench of the High Court, the
issues decided therein will be deemed to have become final but as the C
partition suit is required to be decided in stages, the same can be regarded
as fully and completely decided only when the final decree is passed. As
the law governing the parties has been amended before the conclusion
of the final decree proceedings, the party benefitted by such amendment
(like the two daughters in the case on hand) can make a request to the D
Trial Court to take cognizance of the Amendment and give effect to the
same.
81. We do not find any merit in the submissions canvassed by Mr.
Basant, learned Senior Counsel appearing for the Appellants that in a
partition suit, the preliminary decree cannot be varied in the final decree E
proceedings, despite the amendment of the law governing the parties.
82. In our opinion, no error not to speak of any error of law could
be said to have been committed upon Courts below, while determining
the shares of the parties. The only thing that needs to be done now is to
give effect to the amendment in the provisions of Section 6 of the 1956 F
Act and redetermine the shares of the parties accordingly. To put it
straight, the Plaintiff is entitled to 1/3rd 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 G
83. We shall now proceed to answer the issue No. 2 whether the
High Court was justified in allowing the cross-appeal filed by the Original
Defendant No. 2 on the ground that the settlement arrived at between
the Appellants (Defendant No 1 and Defendant No. 2) was not valid
and binding under Order XXIII Rule 3 of the CPC.
H
68 SUPREME COURT REPORTS [2023] 5 S.C.R.

A 84. Mr. Basant, learned Senior Counsel vehemently submitted
that the settlement between the Defendant No. 1 and his sister i.e., the
Defendant No. 2 was duly signed on affidavit way back on 29.03.1991.
The said settlement was taken on record by the High Court on 9.04.1991
i.e., at the time of the final hearing of the first appeal. The first appeal
came to be disposed of on 1.08.2000, modifying the decree to the extent
B
of incorporating the terms of the compromise agreement between the
two Defendants. It is only after a lapse of ten years that during the
pendency of the appeal filed by the Appellants herein before the Division
Bench of the High Court that the Defendant No. 2 thought fit to file
cross-appeal, challenging the alleged compromise. Mr. Basant submitted
C that such cross-appeal is not maintainable and even if it held to be
maintainable, the same should not have been entertained and allowed
after the lapse of almost ten years from the date of recording of the
settlement.
85. We are not much impressed by the aforesaid submissions of
D Mr. Basant. It is a settled position of law that right of appeal is the
creature of statute. There is no inherent right of appeal. No appeal can
be filed, heard or determined on merits unless the statute confers right
on the appellant and power on the Court to do so. At this stage, we may
look into the provisions of Order XLI Rule 22 of the CPC:
E “22. Upon hearing respondent may object to decree as if he
had preferred a separate appeal.—(1) Any respondent, though
he may not have appealed from any part of the decree, may
not only support the decree [but may also state that the finding
against him in the Court below in respect of any issue ought
to have been in his favour; and may also take any cross-
F objection] to the decree which he could have taken by way
of appeal provided he has filed such objection in the Appellate
Court within one month from the date of service on him or his
pleader of notice of the day fixed for hearing the appeal, or
within such further time as the Appellate Court may see fit to
G allow.
[Explanation.—A respondent aggrieved by a finding of the
Court in the judgment on which the decree appealed against
is based may, under this rule, file cross-objection in respect
of the decree in so far as it is based on that finding,
H notwithstanding that by reason of the decision of the Court
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 69
& ORS. [J. B. PARDIWALA, J.]

on any other finding which is sufficient for the decision of A
the suit, the decree, is, wholly or in part, in favour of that
respondent.]
(2) Form of objection and provisions applicable thereto.—
Such cross-objection shall be in the form of a memorandum,
and the provisions of rule 1, so far as they relate to the form B
and contents of the memorandum of appeal, shall apply
thereto.
[3***]
(4) Where, in any case in which any respondent has under
this rule filed a memorandum of objection, the original appeal C
is withdrawn or is dismissed for default, the objection so filed
may nevertheless be heard and determined after such notice
to the other parties as the Court thinks fit.
(5) The provisions relating to appeals by indigent persons
shall, so far as they can be made applicable, apply to an D
objection under this rule.”
86. The right to prefer cross-objection partakes of the right to
prefer an appeal. The learned counsel appearing for the Defendant No.
2 (Respondent No. 2 herein) that a cross-appeal under Order XLI Rule
22 of the CPC is as effective as a regular first appeal and the same E
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.) F
87. Our attention was also drawn to the provisions of Order XLIII
of Rule 1-A (2) of the CPC. The same reads as under:
“1A. Right to challenge non-appealable orders in appeal
against decrees.—
Xxx xxx xxx G

(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.” H
70 SUPREME COURT REPORTS [2023] 5 S.C.R.

A 88. We are of the view that the cross-appeal objector is entitled
under Order XLI Rule 22 of the CPC read with Order XLIII Rule 1-A
(2) of the CPC as referred to above, to make good the submission that
she was entitled in law to question the legality and validity of the settlement
agreement recorded under Order XXIII Rule 3 of the CPC by way of a
cross-appeal.
B
89. In the aforesaid context, we may refer to the decision of this
Court in the case of Banwari Lal v. Chando Devi (Smt) and Another
reported in (1993) 1 SCC 581, more particularly, paras 9 to 13 resply
therein:
C “9. Section 96(3) of the Code says that no appeal shall lie
from a decree passed by the Court with the consent of the
parties. Rule 1-A(2) has been introduced saying that against
a decree passed in a suit after recording a compromise, it
shall be open to the appellant to contest the decree on the
ground that the compromise should not have been recorded.
D When Section 96(3) bars an appeal against decree passed
with the consent of parties, it implies that such decree is valid
and binding on the parties unless set aside by the procedure
prescribed or available to the parties. One such remedy
available was by filing the appeal under Order 43, Rule 1(m).
E If the order recording the compromise was set aside, there
was no necessity or occasion to file an appeal against the
decree. Similarly a suit used to be filed for setting aside such
decree on the ground that the decree is based on an invalid
and illegal compromise not binding on the plaintiff of the
second suit. But after the amendments which have been
F introduced, neither an appeal against the order recording
the compromise nor remedy by way of filing a suit is available
in cases covered by Rule 3-A of Order 23. As such a right has
been given under Rule 1-A(2) of Order 43 to a party, who
challenges the recording of the compromise, to question the
G validity thereof while preferring an appeal against the decree.
Section 96(3) of the Code shall not be a bar to such an appeal
because Section 96(3) is applicable to cases where the factum
of compromise or agreement is not in dispute.
10. The learned counsel appearing for the respondent took a
H stand that the High Court was justified in taking the view
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 71
& ORS. [J. B. PARDIWALA, J.]

that the suit had been simply withdrawn by the plaintiff- A
appellant under Rule 1 of Order 23 and it had not been
compromised in terms of Rule 3 of the said Order 23; as such
there was no occasion for the appellant to file an application
for recall of the said order and for restoration of the suit in
question for being heard on merit. From the copy of the petition
B
which was filed on February 27, 1991 it appears that the
terms and conditions of settlement and agreement had been
mentioned saying that both parties had entered into a
compromise because of which the plaintiff-appellant had
thereafter no connection with the disputed land and
defendant-respondent shall be deemed to be in possession C
and the owner of the said disputed land. The prayer made in
the said petition also says that the compromise may be ordered
to be accepted. On basis of that petition, as already mentioned
above, the court passed an order saying that the compromise
had been accepted. In the order it has been mentioned that
D
the suit of the plaintiff be “dismissed as per compromise deed
Ex. C”. In view of the aforesaid facts and circumstances, it is
difficult to hold that by order dated February 27, 1991 the
Court allowed the suit to be withdrawn in terms of Rule 1 of
Order 23. The order on face of it purported to dismiss the suit
of the plaintiff on basis of the terms and conditions mentioned E
in the petition of compromise. As such, the validity of that
order has to be judged treating it to be an order deemed to
have been passed in purported exercise of the power conferred
on the Court by Rule 3 of Order 23 of the Code. The learned
Subordinate Judge should not have accepted the said petition
F
of compromise even if he had no knowledge of the fraud
alleged to have been practised on the appellant by his counsel,
because admittedly the petition of compromise had not been
signed either by the respondent or his counsel. This fact should
have been discovered by the Court. In the case of Gurpreet
Singh v. Chatur Bhuj Goel [(1988) 1 SCC 270 : AIR 1988 SC G
400] it has been said: (SCC p. 276, para 10)
“Under Rule 3 as it now stands, when a claim in suit has
been adjusted wholly or in part by any lawful agreement or
compromise, the compromise must be in writing and signed
by the parties and there must be a completed agreement H
72 SUPREME COURT REPORTS [2023] 5 S.C.R.

A between them. To constitute an adjustment, the agreement or
compromise must itself be capable of being embodied in a
decree. When the parties enter into a compromise during the
hearing of a suit or appeal, there is no reason why the
requirement that the compromise should be reduced in writing
in the form of an instrument signed by the parties should be
B
dispensed with. The court must therefore insist upon the parties
to reduce the terms into writing.”
The requirement of the petition of compromise being signed
by the parties concerned has been considered also in the case
of Byram Pestonji Gariwala v. Union Bank of India [(1992)
C 1 SCC 31 : AIR 1991 SC 2234] . It appears the attention of
learned Judges was not drawn to the aforesaid case of this
Court in Gurpreet Singh v. Chatur Bhuj Goel [(1988) 1 SCC
270 : AIR 1988 SC 400].
11. The present case depicts as to how on February 27, 1991
D the court recorded the alleged agreement and compromise in
a casual manner. It need not be impressed that Rule 3 of Order
23 does not require just a seal of approval from the Court to
an alleged agreement or compromise said to have been
entered into between the parties. The statute requires the Court
E to be first satisfied that the agreement or compromise which
has been entered into between the parties is lawful, before
accepting the same. Court is expected to apply its judicial
mind while examining the terms of the settlement before the
suit is disposed of in terms of the agreement arrived at between
the parties. It need not be pointed out that once such a petition
F of compromise is accepted, it becomes the order of the Court
and acquires the sanctity of a judicial order.
12. On behalf of the respondent a stand was taken that the
learned Subordinate Judge by his order dated September 20,
1991 could not have recalled the order dated February 27,
G 1991 and restored the suit to its original number. It cannot be
disputed that the respondent can support the order of the
High Court setting aside order dated September 20, 1991 on
any other reason than the reason given by the High Court.
13. When the amending Act introduced a proviso along with
H an explanation to Rule 3 of Order 23 saying that where it is
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 73
& ORS. [J. B. PARDIWALA, J.]

alleged by one party and denied by the other that an A
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
B
agreement. To make the enquiry in respect of validity of the
agreement or the compromise more comprehensive, the
explanation to the proviso says that an agreement or
compromise “which is void or voidable under the Indian
Contract Act …” shall not be deemed to be lawful within the
meaning of the said Rule. In view of the proviso read with the C
explanation, a Court which had entertained the petition of
compromise has to examine whether the compromise was void
or voidable under the Indian Contract Act. Even Rule 1(m) of
Order 43 has been deleted under which an appeal was
maintainable against an order recording a compromise. As
D
such a party challenging a compromise can file a petition
under proviso to Rule 3 of Order 23, or an appeal under
Section 96(1) of the Code, in which he can now question the
validity of the compromise in view of Rule 1-A of Order 43 of
the Code.” (Emphasis supplied)
90. We may also refer to and rely upon the decision of this Court E
in the case Vipan Aggarwal and Another v. Raman Gandotra and
Others reported in 2022 SCCOnLine SC 1357 more particularly paras 4
and 5 resply therein:
“4. This Court in a judgment reported in ‘Banwari Lal v.
Chando Devi (Smt.) (Through LRS.)’ (1993) 1 SCC 581 held F
the question as to whether an aggrieved person against the
compromise decree has a right to file an application before
the Court which granted the decree or an appeal in terms of
Order 43 Rule 1A of the Civil Procedure Code, 1908 (for
short, ‘the CPC’). It was held as under:— G
“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 H
74 SUPREME COURT REPORTS [2023] 5 S.C.R.

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
B
an agreement or compromise “which is void or voidable
under the Indian Contract Act…” shall not be deemed to
be lawful within the meaning of the said Rule. In view of
the proviso read with the explanation, a Court which had
entertained the petition of compromise has to examine
C whether the compromise was void or voidable under the
Indian Contract Act. Even Rule 1(m) of Order 43 has been
deleted under which an appeal was maintainable against
an order recording a compromise. As such a party
challenging a compromise can file a petition under proviso
to Rule 3 of Order 23, or an appeal under Section 96(1)
D
of the Code, in which he can now question the validity of
the compromise in view of Rule 1-A of Order 43 of the
Code.”
5. The appellants had thus the right to avail either the remedy
of appeal in terms of Order 43 Rule 1A CPC or by way of an
E application before the court granting decree. Therefore, the
application filed by the appellants before the Court which
granted the decree cannot be said to be without jurisdiction.”
(Emphasis supplied)

F 91. Thus, in view of the aforesaid discussion, we hold that the
cross-appeal filed by the Original Defendant No. 2, questioning the legality
and validity of the settlement was maintainable in law.
92. We shall now look into the circumstances, as highlighted by
the learned Senior Counsel appearing for the Defendant No. 2, rendering
G the settlement agreement dated 28.03.1991 invalid and not binding under
Order XXIII Rule 3 of the CPC:
“First, the alleged compromise agreement has admittedly not
been signed by the plaintiff who concededly has a share in
the property as a coparcener. A written consent of all parties
is necessary.
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 75
& ORS. [J. B. PARDIWALA, J.]

Secondly, a coparcenary undivided property in specie (Plot A
No. 140) has been allotted to Defendant 2 by Defendant No.
1 over which the plaintiff also has an interest.
Thirdly, there is variance between the agreement and the
compromise petition producing the agreement.
The Variance noted is as follows- B

(a) The compromise petition takes in consideration yet another
property already purchased by Defendant No. 2 by her own
income (Schedule B property) which was not a part of
compromise agreement.
C
(b) The sketch map appended to the petition shows plot no.
1086 and 1085 which for part of plot No. 141 instead of plot
no. 140 mentioned in clause 3 of compromise agreement, and
does not indicate any consensus ad idem, therefore, the
execution of the compromise agreement becomes
unenforceable. D
(c) The species of suit property, which was given/provided to
Defendant no.2 in clause 3 (page 141) of agreement was
changed to will be allotted to her in final decree proceeding.
(d) The payment of Rs. 12000 which was to be deposited to
E
court without any caveat in agreement (See para 4 @ 141)
was made subject to further orders of the Court in the petition.
(e) There is no express mentioning about the mesne profits in
agreement whereas a definite clause was inserted in the
compromise petition.
F
(f) The easement rights to property of Defendant No. 2 were
recognised in agreement and later in petition was altered to
that Defendant No. 2 along with others have to file and take
steps to easement rights for which the Defendant 1 shall not
object.
G
(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 H
76 SUPREME COURT REPORTS [2023] 5 S.C.R.

A the property allotted in specie to the Defendant No. 2. The
first appellate court has proceeded on the wrong premise that
the Defendant No. 2 has surrendered her rights to the
Defendant No. 1. The first appellate court was further wrong
in specifically noting that the compromise agreement does not
cause any prejudice to the rights of the plaintiff and therefore
B
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
C therefore inadequate and whole agreement has to fall to the
ground due to changed and supervening circumstances
effectuated by change in law.
Lastly, even otherwise, the allotment of a co-ownership
property in a specie to one coparcener cannot be modified in
D a preliminary decree. Moreover, under Hindu Law, the gift/
renunciation/relinquishment or alienation by one coparcener
of his undivided coparcenary interest to another coparcener
without consent of other coparceners is void.”
93. It is now well settled that under Order XXIII Rule 3 of the
E CPC as it now stands, when a claim in suit has been adjusted wholly or
in part by any lawful agreement or compromise, the compromise must
be in writing and signed by the parties and there must be a completed
agreement between them. To constitute an adjustment, the agreement
or compromise must itself be capable of being embodied in a decree.
F (See: Gurpreet Singh v. Chatur Bhuj Goel, (1988) 1 SCC 270.)
94. Indisputably, in the case on hand, the plaintiff has not put her
signature on the deed of settlement, which was produced before the
High Court in first appeal. The Plaintiff has made herself very clear that
she never joined in the settlement between her brother i.e., the Defendant
G No. 1 and her sister i.e., the Defendant No. 2. On this ground alone, the
settlement could be said to be unlawful, being without any written consent
of all the parties. In a suit for partition of joint property, a decree by
consent amongst some only of the parties cannot be maintained.
95. In Nityamoni Dasi v. Gokul Chandra Sen reported in (1911)
9 Ind Cas 210 (Cal), the Calcutta High Court observed:
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 77
& ORS. [J. B. PARDIWALA, J.]

“… The decree of the Subordinate Judge must be set aside A
and the whole case retried, because as this is a suit for partition
of joint property, a decree by consent amongst some only of
the parties cannot possibly be maintained…..”
96. In Vir Singh and Others v. Kharak Singh and Others
reported in AIR 1925 Lah 280, all the proprietors had not assented to the B
compromise, Moti Sagar, J. observed:—
“…the alleged compromise not having been assented to by
all the proprietors was clearly contrary to law and the Court
was, therefore, fully justified in refusing to enforce it. …”
97. In Taraprasanna Sarkar and Another v. Kalikamohan C
Sarkar and Others reported in AIR 1924 Cal 80 Mookerjee and Rankin,
JJ., held:—
“…There can be no compromise binding upon, all the parties
to a partition suit until and unless all the parties have joined
in the compromise:…” D
98. In the aforesaid context, we shall also now look into the findings
recorded by the Division Bench of the High Court while allowing the
cross-appeal filed by the Defendant No. 2. We quote the relevant
observations as under:
E
“The appeal was filed by defendant no. 1 before this Court.
In this Appeal challenging the correctness of the decision of
the learned Single Judge in F.A. No. 359/96 on the basis of
the compromise petition dated 28.3.1991, which is flied and
accepted by him is not signed by defendant no.2 and the same
is signed by her advocate and not signed by the plaintiff and F
her counsel. Therefore, it is urged that the same is not legal
compromise as provided under Order 23, Rule 3, CPC and
on behalf of defendant no.2 her advocate could not have
signed the compromise petition as she has not executed special
‘vakalatnama’ giving the authorization in favour of her lawyer
G
to compromise the matter between defendant no.1 and 2 In
the First Appeal. Therefore, First Appellate Judge should not
have received the compromise petition and accepted the same.
The acceptance of the compromise petition by the learned
Single Judge should have entered between the parties
including the plaintiff. In support of the said legal contention, H
78 SUPREME COURT REPORTS [2023] 5 S.C.R.

A reliance is placed by the learned counsel on behalf of
defendant no.2 on the decisions of the apex Court in Ramasrey
& Puspa Devi (supra). The compromise petition is in variance
to the schedule properties of the suit and, therefore, it is
voidable. The compromise was neither recorded by the first
appellate court at the time-of filing compromise petition in
B
writing, nor the parties were present in the court nor signed
the petition in court. Therefore, the alleged compromise cannot
be termed as compromise between the parties in relation to
the subject matter covered therein as the same is illegal for
the reason that it is opposed to Order 23, Rule 3, CPC. Hence
C the learned Single Judge could not have accepted the same.
In support of this contention, learned Single Judge had rightly
placed reliance upon the decisions of the Hon’ble Supreme
Court In the case of Gurpreet Singh v. Chatur Bhuj Goel,
AIR 1988 SC 400; and of this Court in the case of Sanyasi
Jena and others v. Mina Jena and others, AIR 1984 Orissa
D
213. Further the reliance placed by the learned counsel for
the defendant no.1 upon the judgment of Puspa Devi (supra)
is distinguished by defendant no.2 counsel stating that
compromise petition is being typed in English. Further the
same is not signed by defendantno.2. Defendant no.1 with a
E view to deprive allotment of share assigned in favour of
defendant no.2 by the trial court in respect of the suit schedule
properties in the absence of signing the compromise petition
by defendant no.2 and there is no special ‘vakalatnama’
executed in favour of her lawyer, the said compromise petition
is unlawful and the same could not have been accepted by
F
the first appellate court In the Impugned judgment and
modified the trial court judgment. Therefore, the cross-
objection/appeal filed by defendant no.2 has to be allowed
by setting aside the compromise recorded by the first appellate
court In the Impugned judgment by modifying trial court
G judgment in relation to the share of the defendant no.2 allotted
in respect of the suit schedule properties. Having set aside
the said compromise, as recorded in the impugned judgment
of the First Appellate Court, the trial court judgment is
restored with regard to the share assigned by him in favour in
of defendant no.2 In respect of suit schedule properties.
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 79
& ORS. [J. B. PARDIWALA, J.]

Accordingly the cross-objection of the second defendant is A
allowed by answering the aforesaid point no.(iii) in her
favour.”
(Emphasis supplied)
99. We are in complete agreement with the aforesaid findings
recorded by the High Court in its impugned judgment and order while B
allowing the cross-appeal.
100. The third question that arises for our consideration in context
with the legality and validity of the settlement is whether the learned
advocate appearing for the cross-objector i.e., Defendant No. 2 could
have signed the compromise petition without an express consent. It is an C
imperative duty of the Court to ascertain the genuineness and lawfulness
of the compromise deed. Indisputably, in the case on hand, the First
Appellate Court had neither recorded the statements of the parties in
the Court nor had made any inquiry into the terms of the settlement. It is
in such circumstances that the High Court in its impugned order has D
observed that the Compromise Petition was signed by the advocate
without any express authority or without special vakalatnama executed
in favour of the advocate. In fact, the authority was expressly curtailed
in the compromise deed.
101. In the aforesaid context, we may refer to the decision of this E
Court in the case of Himalayan Cooperative Group Housing Society
v. Balwan Singh and Others reported in (2015) 7 SCC 373, more
particularly, paras 22 to 33, which read thus:
“22. Apart from the above, in our view lawyers are perceived
to be their client’s agents. The law of agency may not strictly F
apply to the client-lawyer’s relationship as lawyers or agents,
lawyers have certain authority and certain duties. Because
lawyers are also fiduciaries, their duties will sometimes be
more demanding than those imposed on other agents. The
authority-agency status affords the lawyers to act for the client
on the subject-matter of the retainer. One of the most basic G
principles of the lawyer-client relationship is that lawyers owe
fiduciary duties to their clients. As part of those duties, lawyers
assume all the traditional duties that agents owe to their
principals and, thus, have to respect the client’s autonomy to
make decisions at a minimum, as to the objectives of the
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80 SUPREME COURT REPORTS [2023] 5 S.C.R.

A representation. Thus, according to generally accepted notions
of professional responsibility, lawyers should follow the
client’s instructions rather than substitute their judgment for
that of the client. The law is now well settled that a lawyer
must be specifically authorised to settle and compromise a
claim, that merely on the basis of his employment he has no
B
implied or ostensible authority to bind his client to a
compromise/settlement. To put it alternatively that a lawyer
by virtue of retention, has the authority to choose the means
for achieving the client’s legal goal, while the client has the
right to decide on what the goal will be. If the decision in
C question falls within those that clearly belong to the client,
the lawyer’s conduct in failing to consult the client or in
making the decision for the client, is more likely to constitute
ineffective assistance of counsel.
23. The Bar Council of India Rules, 1975 (for short “the BCI
D 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:
E “An advocate shall, at all times, comport himself in a
manner befitting his status as an officer of the Court, a
privileged member of the community, and a gentleman,
bearing in mind that what may be lawful and moral for a
person who is not a member of the Bar, or for a member of
the Bar in his non-professional capacity may still be
F improper for an advocate. Without prejudice to the
generality of the foregoing obligation, an advocate shall
fearlessly uphold the interests of his client and in his
conduct conform to the rules hereinafter mentioned both
in letter and in spirit. The rules hereinafter mentioned
G contain canons of conduct and etiquette adopted as
general guides; yet the specific mention thereof shall not
be construed as a denial of the existence of others equally
imperative though not specifically mentioned.”
24. The Preamble makes it imperative that an advocate has
H to conduct himself and his duties in an extremely responsible
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 81
& ORS. [J. B. PARDIWALA, J.]

manner. They must bear in mind that what may be appropriate A
and lawful for a person who is not a member of the Bar, or
for a member of the Bar in his non-professional capacity,
may be improper for an advocate in his professional capacity.
25. Section II of the said Chapter II provides for duties of an
advocate towards his client. Rules 15 and 19 of the BCI Rules, B
have relevance to the subject-matter and therefore, they are
extracted below:
“15. It shall be the duty of an advocate fearlessly to uphold
the interests of his client by all fair and honourable means
without regard to any unpleasant consequences to himself C
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.
D
***
19. An advocate shall not act on the instructions of any
person other than his client or his authorised agent.”
26. While Rule 15 mandates that the advocate must uphold
the interest of his clients by fair and honourable means without E
regard to any unpleasant consequences to himself or any other.
Rule 19 prescribes that an advocate shall only act on the
instructions of his client or his authorised agent. Further, the
BCI Rules in Chapter I of the said Section II provide that the
Senior Advocates in the matter of their practice of the F
profession of law mentioned in Section 30 of the 1961 Act
would be subject to certain restrictions. One of such
restrictions contained in clause (cc) reads as under:
“(cc) A Senior Advocate shall, however, be free to make
concessions or give undertaking in the course of arguments
G
on behalf of his clients on instructions from the junior
advocate.”
27. Further, the “Code of Ethics” prescribed by the Bar
Council of India, in recognition of the evolution in
professional and ethical standards within the legal community,
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82 SUPREME COURT REPORTS [2023] 5 S.C.R.

A provides for certain rules which contain canons of conduct
and etiquette which ought to serve as general guide to the
practice and profession. Chapter III of the said Code provides
for an “Advocate’s duty to the client”. Rule 26 thereunder
mandates that an “advocate shall not make any compromise
or concession without the proper and specific instructions of
B
his/her client”. It is pertinent to notice that an advocate under
the Code expressly includes a group of advocates and a law
firm whose partner or associate acts for the client.
28. Therefore, the BCI Rules make it necessary that despite
the specific legal stream of practice, seniority at the Bar or
C designation of an advocate as a Senior Advocate, the ethical
duty and the professional standards insofar as making
concessions before the Court remain the same. It is expected
of the lawyers to obtain necessary instructions from the clients
or the authorised agent before making any concession/
D statement before the court for and on behalf of the client.
29. While the BCI Rules and the Act, do not draw any exception
to the necessity of an advocate obtaining instructions before
making any concession on behalf of the client before the court,
this Court in Periyar & Pareekanni Rubber Ltd. v. State of
E Kerala [(1991) 4 SCC 195] has noticed the sui generis status
and the position of responsibility enjoyed by the Advocate
General in regard to the statements made by him before the
courts. The said observation is as under: (SCC p. 209, para
19)

F “19. … Any concession made by the Government Pleader
in the trial court cannot bind the Government as it is
obviously, always, unsafe to rely on the wrong or erroneous
or wanton concession made by the counsel appearing for
the State unless it is in writing on instructions from the
responsible officer. Otherwise it would place undue and
G needless heavy burden on the public exchequer. But the
same yardstick cannot be applied when the Advocate
General has made a statement across the Bar since the
Advocate General makes the statement with all
responsibility.”
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 83
& ORS. [J. B. PARDIWALA, J.]

(See: Joginder Singh Wasu v. State of Punjab [(1994) 1 A
SCC 184] .)
30. The Privy Council in Sourendra Nath Mitra v. Tarubala
Dasi [(1929-30) 57 IA 133 : (1930) 31 LW 803 : AIR 1930
PC 158] , has made the following two observations which
hold relevance to the present discussion: (IA pp. 140-41) B
“Two observations may be added. First, the implied authority
of counsel is not an appendage of office, a dignity added by
the courts to the status of barrister or advocate at law. It is
implied in the interests of the client, to give the fullest
beneficial effect to his employment of the advocate. Secondly, C
the implied authority can always be countermanded by the
express directions of the client. No advocate has actual
authority to settle a case against the express instructions of
his client. If he considers such express instructions contrary
to the interests of his client, his remedy is to return his brief.”
D
(See: Jamilabai Abdul Kadar v. Shankarlal Gulabchand
[(1975) 2 SCC 609] and Svenska Handelsbanken v. Indian
Charge Chrome Ltd. [(1994) 2 SCC 155] )
31. Therefore, it is the solemn duty of an advocate not to
transgress the authority conferred on him by the client. It is E
always better to seek appropriate instructions from the client
or his authorised agent before making any concession which
may, directly or remotely, affect the rightful legal right of the
client. The advocate represents the client before the court and
conducts proceedings on behalf of the client. He is the only
link between the court and the client. Therefore his F
responsibility is onerous. He is expected to follow the
instructions of his client rather than substitute his judgment.
32. Generally, admissions of fact made by a counsel are
binding upon their principals as long as they are unequivocal;
where, however, doubt exists as to a purported admission, G
the court should be wary to accept such admissions until and
unless the counsel or the advocate is authorised by his
principal to make such admissions. Furthermore, a client is
not bound by a statement or admission which he or his lawyer
was not authorised to make. A lawyer generally has no implied
H
84 SUPREME COURT REPORTS [2023] 5 S.C.R.

A or apparent authority to make an admission or statement
which would directly surrender or conclude the substantial
legal rights of the client unless such an admission or statement
is clearly a proper step in accomplishing the purpose for
which the lawyer was employed. We hasten to add neither the
client nor the court is bound by the lawyer’s statements or
B
admissions as to matters of law or legal conclusions. Thus,
according to generally accepted notions of professional
responsibility, lawyers should follow the client’s instructions
rather than substitute their judgment for that of the client. We
may add that in some cases, lawyers can make decisions
C without consulting the client. While in others, the decision is
reserved for the client. It is often said that the lawyer can
make decisions as to tactics without consulting the client, while
the client has a right to make decisions that can affect his
rights.
D 33. We do not intend to prolong this discussion. We may
conclude by noticing a famous statement of Lord Brougham:
“an advocate, in the discharge of his duty knows but one
person in the world and that person is his client”. [Ed.:
The statement was made by Mr Henry Brougham, as His
E Lordship then was, while defending Queen Caroline in the
House of Lords. See The Whole Proceedings on The Trial
of Her Majesty, Caroline Amelia Elizabeth, Queen of
England, for “Adulterous Intercourse” with Bartolomeo
Bergami, Vol. II, p. 2 containing Her Majesty’s Defence,
printed and published by John Fairburn, Broadway,
F Ludgate Hill (1820).]”
(Emphasis supplied)
102. We also refer to the decision of this Court in the case of
Byram Pestonji Gariwala (supra), more particularly, the observations
G made in para 37, which read thus:
“37. We may, however, hasten to add that it will be prudent
for counsel not to act on implied authority except when
warranted by the exigency of circumstances demanding
immediate adjustment of suit by agreement or compromise and
the signature of the party cannot be obtained without undue
H
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU 85
& ORS. [J. B. PARDIWALA, J.]

delay. In these days of easier and quicker communication, A
such contingency may seldom arise. A wise and careful
counsel will no doubt arm himself in advance with the
necessary authority expressed in writing to meet all such
contingencies in order that neither his authority nor integrity
is ever doubted. This essential precaution will safeguard the
B
personal reputation of counsel as well as uphold the prestige
and dignity of the legal profession.”
(Emphasis supplied)
103. Almost six decades back, the Madras High Court speaking
through Justice Ramaswami (as His Lordship then was) in the case of C
Govindammal v. Marimuthu Maistry and Others reported in AIR
1959 Mad 7 had sounded the note of caution observing as under:
“5. … The decisions appear to be fairly clear that even in
cases where there is no express authorization to enter into a
compromise, under the inherent authority impliedly given to D
the Vakil he has power to enter into the compromise on behalf
of his client. But in the present state of the clientele world
and the position in which the Bar now finds itself and in the
face of divided judicial authority and absence of statutory
backing prudence dictates that unless express power is given
in the vakalatnama itself to enter into compromise, in E
accordance with the general practice obtaining a special
vakalatnama should be filed or the specific consent of the
party to enter into the compromise should be obtained. If an
endorsement is made on the plaint etc., it would be better to
get the signature or the thumb impression of the party affixed F
thereto, making it evident that the party is aware of what is
being done by the Vakil on his or her behalf.”
104. Thus, in view of the aforesaid discussion, we hold that the
High Court committed no error in holding that the settlement between
the Defendant Nos. 1 and 2 resply was unlawful. G
OUR FINAL CONCLUSIONS
105. We may draw our final conclusions as under:
(i) The preliminary decree drawn by the Trial Court as affirmed
by the High Court is modified to the extent that the daughters
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86 SUPREME COURT REPORTS [2023] 5 S.C.R.

A are entitled to 1/3rd share in all the properties scheduled in
the plaint i.e., ancestral and self-acquired properties of Late
Shri Kumar Sahoo. The Trial Court shall modify the decree
accordingly.
(ii) As we have held that the settlement between the Original
B Defendant Nos. 1 and 2 resply was not in accordance with
law, the Appellants herein will not be entitled to the share
of the Original Defendant No. 2.
(iii) The Appellants shall be entitled to only their 1/3rd share in
the suit properties.
C (iv) Since the Defendant No. 1 was appointed as receiver, the
Appellants shall now furnish accounts before the Trial Court.
106. With the aforesaid clarifications, both the Appeals fail and
are hereby dismissed.

D 107. This litigation by now is almost four decades old. The Original
Plaintiff as on date is almost 85 years of age. In such circumstances, the
Trial Court shall draw the final decree within a period of three months
from the date of receipt of the certified copy of this judgment and order.
108. Parties to bear their own costs.
E 109. Pending applications, if any, also stand disposed of.

Divya Pandey Appeals dismissed.
(Assisted by : Shevali Monga, LCRA)

F

G

H