# PRASANTA KUMAR SAHOO & ORS v. CHARULATA SAHU & ORS

- **Citation:** [2023] 5 S.C.R. 20
- **Court:** Supreme Court of India
- **Decided:** 2023-03-29
- **Case number:** Civil Appeal No. 2913-2915 of 2018
- **Bench:** A. S. Bopanna, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prasanta-kumar-sahoo-ors-v-charulata-sahu-ors-37167
- **Pages:** 67

## Headnote

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
- 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
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.
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.
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 crossobjection 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,
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,
[2023] 5 S.C.R. 20
20
A
B
C
D
E
F
G
H
21
questioning the legality and validity of the settlement was
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
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
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.
Dismissing the appeals, the Court
HELD: 1. A three-Judge Bench of this Court doubted the
correctness of the dictum as laid in Prakash as there was an
apparent conflict between the dictum as laid in Prakash and
Danamma. The question concerning the interpretation of Section
6 of Act 1956 was referred to a larger Bench. The larger 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
confirmed by the Division Bench of the High Court, the issues
decided therein will be deemed to have become final but as the
partition suit is required to be decided in stages, the same can
be regarded as fully and completely decided only when the final
decree is passed. As the law governing the parties has been
amended before the conclusion of the final decree proceedings,
the party benefitted by such amendment (like the two daughters
in the case on hand) can make a request to the Trial Court to
take cognizance of the Amendment and g

## Text

_Characters 0–39,932 of 141,211. This is a partial read: ask again with offset=39932 for what follows._

A
B
C
D
E
F
G
H
20
SUPREME COURT REPORTS
[2023] 5 S.C.R.
PRASANTA KUMAR SAHOO & ORS.
v.
CHARULATA SAHU & ORS.
(Civil Appeal No. 2913-2915 of 2018)
MARCH 29, 2023
[A. S. BOPANNA AND J. B. PARDIWALA, JJ.]
Hindu Succession Act, 1956- Amendment in law governing
the parties - Partition suit - s.6, 1956 Act was amended by 2005
Amendment, before the conclusion of the final decree proceedings
- 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
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.
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.
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 crossobjection 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,
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,
[2023] 5 S.C.R. 20
20
A
B
C
D
E
F
G
H
21
questioning the legality and validity of the settlement was
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
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
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.
Dismissing the appeals, the Court
HELD: 1. A three-Judge Bench of this Court doubted the
correctness of the dictum as laid in Prakash as there was an
apparent conflict between the dictum as laid in Prakash and
Danamma. The question concerning the interpretation of Section
6 of Act 1956 was referred to a larger Bench. The larger 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
confirmed by the Division Bench of the High Court, the issues
decided therein will be deemed to have become final but as the
partition suit is required to be decided in stages, the same can
be regarded as fully and completely decided only when the final
decree is passed. As the law governing the parties has been
amended before the conclusion of the final decree proceedings,
the party benefitted by such amendment (like the two daughters
in the case on hand) can make a request to the Trial Court to
take cognizance of the Amendment and give effect to the same.
No error not to speak of any error of law could be said to have
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU
& ORS.
A
B
C
D
E
F
G
H
22
SUPREME COURT REPORTS
[2023] 5 S.C.R.
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
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.
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
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
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
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
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
A
B
C
D
E
F
G
H
23
Original Defendant No. 2, questioning the legality and validity of
the settlement was maintainable in law. [Paras 83, 85, 86, 88,
91][67-G-H; 68-D; 69-E; 70-A-B; 74-F]
Urmila Devi and Others v. Branch Manager, National
Insurance Company Limited and Another (2020) 11
SCC 316 : [2020] 3 SCR 498; Banwari Lal v. Chando
Devi (Smt) and Another (1993) 1 SCC 581 : [1992] 3
Suppl. SCR 524; Vipan Aggarwal and Another v. Raman
Gandotra and Others 2022 SCCOnLine SC 1357 -
relied on.
2.2 Under Order XXIII Rule 3 of the CPC as it now 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. Indisputably, in the case on hand, the
plaintiff has not put her signature on the deed of settlement, which
was produced before the High Court in first appeal. The Plaintiff
has made herself very clear that she never joined in the
settlement between her brother i.e., the Defendant No. 1 and
her sister i.e., the Defendant No. 2. On this ground alone, the
settlement could be said to be unlawful, being without any written
consent of all the parties. In a suit for partition of joint property,
a decree by consent amongst some only of the parties cannot be
maintained. [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
with the legality and validity of the settlement is whether the
learned advocate appearing for the cross-objector i.e., Defendant
No. 2 could have signed the compromise petition without an
express consent. It is an imperative duty of the Court to ascertain
the genuineness and lawfulness of the compromise deed.
Indisputably, in the case on hand, the First Appellate Court had
neither recorded the statements of the parties in the Court nor
had made any inquiry into the terms of the settlement. It is in
such circumstances that the High Court in its impugned order
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU
& ORS.
A
B
C
D
E
F
G
H
24
SUPREME COURT REPORTS
[2023] 5 S.C.R.
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,
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
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
share in the suit properties. [Para 105][85-H; 86-A-C]
Himalayan Cooperative Group Housing Society v.
Balwan Singh and Others (2015) 7 SCC 373 : [2015] 4
SCR 616 - relied on.
Bai Chanchal and Others v. Syed Jalaluddin and Others
(1970) 3 SCC 124 : [1971] 2 SCR 171; Byram Pestonji
Gariwala v. Union Bank of India and Others (1992) 1
SCC 31 : [1991] 1 Suppl. SCR 187; D.S. Lakshmaiah
and Another v. L. Balasubramanyam and Another
(2003) 10 SCC 310 : [2003] 3 Suppl. SCR 13;
Jineshwardas (Dead) by LRs. and Others v. Jagrani
(Smt) and Another (2003) 11 SCC 372 : [2003] 4 Suppl.
SCR 179; Pushpa Devi Bhagat (Dead) through LR.
Sadhna Rai (Smt) v. Rajinder Singh and Others (2006)
5 SCC 566 : [2006] 3 Suppl. SCR 370; Ganduri
Koteshwaramma and Another v. Chakiri Yanadi and
Another (2011) 9 SCC 788 : [2011] 12 SCR 968;
Badrinarayan Shankar Bhandari and Others v.
Omprakash Shankar Bhandari AIR 2014 Bom 151
(FB); United Bank of India, Calcutta v. Abhijit Tea
A
B
C
D
E
F
G
H
25
Company Private Limited and Others (2000) 7 SCC 357
: [2000] 3 Suppl. SCR 153 - referred to.
Nityamoni Dasi v. Gokul Chandra Sen (1911) 9 Ind
Cas 210 (Cal); Vir Singh and Others v. Kharak Singh
and Others AIR 1925 Lah 280; Taraprasanna Sarkar
and Another v. Kalikamohan Sarkar and Others AIR
1924 Cal 80; Govindammal v. Marimuthu Maistry and
Others AIR 1959 Mad 7 - referred to.
Case Law Reference
[1971] 2 SCR 171
referred to
Para 28 (i)
[1991] 1 Suppl. SCR 187
referred to
Para 28 (ii)
[2003] 3 Suppl. SCR 13
referred to
Para 28 (iii)
[2003] 4 Suppl. SCR 179
referred to
Para 28 (iv)
[2006] 3 Suppl. SCR 370
referred to
Para 28 (v)
[2011] 12 SCR 968
referred to
Para 30, 38, 59 & 60
[2015] 12 SCR 579
referred to
Para 61, 63
[2018] 2 SCR 553
referred to
Para 61, 62 & 63
[2000] 3 Suppl. SCR 153
referred to
Para 77
[2020] 10 SCR 135
relied on
 Para 80
[2020] 3 SCR 498
relied on
Para 85
[1992] 3 Suppl. SCR 524
relied on
Para 89
[1988] 2 SCR 401
relied on
Para 93
[2015] 4 SCR 616
relied on
Para 101
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 29132915 of 2018.
From the Judgment and Order dated 05.05.2011 of the High Court
of Orissa at Cuttack in AHO No. 133 of 2000 and MC No. 24 of 2007.
R. Basant, Sr. Adv., Ashok Panigrahi, Ms. Geetanjali Das
Krishnan, R. Chanrdachud, Ms. Nikita Jaydevan, Nabab Singh, D.
Venkatakrishna, Advs. for the Appellants.
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU
& ORS.
A
B
C
D
E
F
G
H
26
SUPREME COURT REPORTS
[2023] 5 S.C.R.
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.
1. Since the issues involved in both the captioned appeals are
interrelated; the parties are also same and the challenge is also to the
self-same judgment and decree passed by the High Court of Orissa,
those were taken up for hearing analogously and are being disposed of
by this common judgment and order.
2. Both the captioned appeals are at the instance of the legal
representatives and heirs of the original defendant No. 1 (Late Shri
Prafulla Sahoo S/o Kumar Sahoo) and are directed against the judgment,
order and decree passed by a Division Bench of the High Court of
Orissa at Cuttack dated 5.05.2011 in AHO No. 133 of 2000 by which
the Division Bench of the High Court dismissed the Letters Patent Appeal
filed by the appellants herein thereby affirming the judgment and decree
of partition passed by the Trial Court in the Title Suit No. 348 of 1980
instituted by the original plaintiff (Respondent No. 1 herein) and on the
other hand allowed the cross-objections filed by the Original Defendant
No. 2, thereby setting aside and declaring the compromise recorded by
the First Appellate Court entered into between the Late Prafulla Sahoo
and his sister i.e., the Defendant No. 2 in the suit to be invalid.
FACTUAL MATRIX
3. This litigation relates to the partition of ancestral properties of
one Kumar Sahoo, between the appellants who are the legal
representatives and heirs of the Defendant No. 1 (Late Mr. Prafulla
Sahoo S/o of Kumar Sahoo), the Respondent No. 1 herein i.e., the Plaintiff
(Mrs. Charulata Sahoo daughter of Kumar Sahoo) and the Respondent
No. 2 who are the legal representatives and heirs of the Defendant No.
2 (Mrs. Santilata D/o Kumar Sahoo)
4. For the sake of convenience, the relationship of the parties will
appear from the following genealogical table, drawn as under: -
A
B
C
D
E
F
G
H
27
5. It appears from the materials on record that sometime in 1940
upon partition Late Shri Kumar Sahoo i.e., the father of the Plaintiff,
Defendant No. 1 and Defendant No. 2 resply as a co-parcener received
the subject properties. In 1969, when Shri Kumar Sahoo passed away,
he was survived by the Plaintiff and Defendant Nos. 1 and 2 resply.
6. On 3.12.1980, the Respondent No. 1 (herein Original Plaintiff)
filed a suit for partition being the T.S. No. 348 of 1980, claiming 1/3rd
share in the properties 'A' to 'F' as scheduled in the plaint.
7. The Respondent No. 1 (herein Original Plaintiff) prayed for
the following reliefs in the title suit No. 348 of 1980 referred to above:
"(i) Let a preliminary decree be passed for partition in respect
of the plaintiff's 1/3rd share in schedule 'A' to 'F' and the
plaintiff be put in specific possession of the same on a separate
allotment being curved out in final decree proceeding by
appointment of Civil Court Survey knowing commissioner and
a decree for mesne profit be passed against Defendant No. 1
from 1977 till the date of the suit and from the date of suit till
the decree is made final and the share of Defendant No. 1 in
the suit properties be charged for payment of the same.
(ii) Let the Defendant No. 1 be permanently restrained from
interfering with the plaintiff's separate allotment in the final
decree proceeding at any time in future.
(iii) Let a degree be passed for the costs of the suit against
the Defendants.
(iv) Let a decree be passed for such other relief that the
plaintiff is ultimately found entitled in his favour against the
Defendants.
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU
& ORS. [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
28
SUPREME COURT REPORTS
[2023] 5 S.C.R.
DESCRIPTION OF THE PROPERTIES
SCHEDULE-A
1. Dist- Cuttack, S. R. Cuttack, Village- Chauliaganj, P.S.
No. 213. P.S. Madhupatna Khata No. 34, plot No. 1088 Area
Ac. 0.465 dec. Khata No. 32, Plot No. 1088.
KhataNo. 33
Plot No. 1086
Ac. 142. dec.
Khata No. 260
Plot No. 1087
Ac. 0.502 dec.
Plot No. 818
Ac 0.266 dec.
Khata No. 264
Plot No. 1090
Ac 0.012 dec.
 ---------------------------
Ac 1.508 dec.
(A.V. Rs. 1,03,930/-)
SCHEDULE- 'B'
 Mouza- Paisa (Hal - Gandarpur)
Khata No. 108
Plot No. 110
Ac. 0.48 dec.
Khata No. 106
Plot No. 97
Ac. 0.89 dec
Khata No. -doPlot No. 98,
Ac. 0.09 dec.
Plot No. 99
Ac. 0.14 dec
Plot No. 100
Ac. 0.37 dec.
Khata No. 107
Plot No. 95
Ac. 0. 17 dec.
Khata No. 184
Plot No. 101
Ac. 0.45 dec.
Khata No. 114
Plot No. 199 Ac.0.21- 1⁄2 dec.
Khata No. 8
Plot No. 96
Ac. 0.10 dec.
-----------------
Ac. 2.90-1⁄2 dec.
(.A.V. RS. 2850/-)
SCHEDULE -'C'
District- Cuttack. S.R. Cuttack, Mouza- Rajahans,
A
B
C
D
E
F
G
H
29
Khata No. 855,
Plot No. 316.
Ac. 0.18 dec
Khata No. 228
Plot No. 535
 Ac. 0.08 dec.
Plot No. 539
Ac. 0.02 dec
Plot No. 548
Ac. 0.03 dec.
Plot No. 553
Ac. 0.41 dec.
-----------------
Ac. 0.72 dec.
(A.V. RS. 720/-)
SCHEDULE -'D'
Mouza- Safipur, P.S. Sadar, Cuttack,
.... A.V .... Rs.
SCHEDULE -'E'
Mouza- Dian Rajhans Khata No. 1 Plot No. 73 Ac. 0.13 dec.
 Plot No. 76
Ac. 0.12 dec
 --------------
Ac. 0.25 dec
Khata No. 2.
Plot No. 85
Ac. 0.12 dec.
Plot No. 87
Ac. 0.14 dec
Plot No. 93
Ac. 0.18 dec.
Plot No. 70
Ac. 0.19 dec.
Plot No. 72
Ac. 0.29 dec.
Plot No. 104
Ac. 0. 19 dec.
-------------------
Ac. 1.10 dec
 . . ... valued at Rs. 205/-
Khata No. 18
Plot No. 128
Ac. 0.50
Plot No. 135
Ac. 27.59 dec
Plot No. 179
Ac. 1.93 dec
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU
& ORS. [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
30
SUPREME COURT REPORTS
[2023] 5 S.C.R.
Plot No. 180
Ac. 2.22 dec
Plot No. 181
Ac. 10.18 dec
Plot No. 127
Ac. 2.13 dec.
Plot No. 130
Ac. 1.23 dec.
Plot No. 101/186
Ac. 0.24 dec.
Plot No. 132
Ac. 0.35 dec.
Plot No. 132
Ac. 0.35 dec.
Plot No. l37
Ac. 0.20 dec.
Plot No. 136
Ac. 0.26 dec.
Plot No. 99/185 Ac. 0.42 dec.
No. 47.25 dec. valued at Rs. 450/-
Khata No. 19
Plot No. 75
Ac. 0.31 dec
Plot No. 64
Ac. 0.22 dec.
Plot No. 74
Ac. 0.30 dec.
Plot No. 79
Ac. 0.15 dec.
Plot No. 34
Ac. 0.15 dec.
Plot No. 38
Ac. 0.11 dec.
Plot No. 69
Ac. 0.23 dec.
Plot No. 68
Ac. 0.37 dec.
------------------
Ac. 1.74 dec.
 Valuation Rs. 350/-
Khata No. 21
Plot No. 145
Ac. 0.68 dec.
Plot No. 71
Ac. 0.30dec
Plot No. 58
Ac. 0.22 dec.
Plot No. 182
Ac. 0.03 dec.
Plot No. 57
Ac. 0.21 dec.
Plot No. 194
Ac. 0.20 dec.
A
B
C
D
E
F
G
H
31
Plot No. 107
Ac. 0.11 dec.
Plot No. 139
Ac. 0.25 dec.
Plot No. 83
Ac. 0.06 dec.
--------------------
Ac. 3.06 dec
Valuation Rs. 595/-
SCHEDULE -'F'
Mouza- Nagagajpur, P.S. Sadar, S.R. Cuttack, Dist- Cuttack.
Khata No. 61.
Plot No. 51
Ac. 0.080 dec.
Plot No. 54
Ac. 0.023dec.
Plot No. 57
Ac. 0.012 dec.
Plot No. 61
Ac. 0.035 dec.
Plot No. 62
Ac. 0.22dec.
Plot No. 91
Ac. 0.006 dec.
Plot No. 93
Ac. 0.007 dec.
Plot No. 108
Ac. 0.044 dec.
-----------------
Ac 1.89 decimals
 . . . . . . . . . . Rs/ 1.890/-
Agricultural and other lands Ac. 60.79 dec.
...Valued at Rs. 1.20, 610/-
VERIFICATION."
8. The Trial Court framed the following issues:
"(1) Is the suit maintainable in law?
(2) Are the plaintiff and Defendant No. 2 members of the family
of Defendant No. 1 in view of introduction of Urban Land
Ceiling & Regulation Act, 1976, and can the plaintiff maintain
a suit for partition of the suit property?
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU
& ORS. [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
32
SUPREME COURT REPORTS
[2023] 5 S.C.R.
(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 selfacquired of Kumar Sahu?
(6) What are the shares of plaintiff and Defendant No. 2 in
the mesne profit and from what date they are entitled to the
same?
(7) Are the alienations made by different parties out of the
suit property at different points of time to be adjusted to their
respective shares?
(8) Whether the settlement deed dated 20.07.1985 executed
by late Nisamani Dei has been acted upon and are plaintiff
and Defendant No. 2 bound by the same?
(9) Was there sufficient joint family nucleus in the hand of
Defendant No. 1 for alleged construction of the estate of the
joint family?
(10) Whether the property of Khata No. 18 in Schedule E of
the amended plaint is available for partition?
(11) To what relief the parties are entitled?
The trial court decreed the suit and observed that the plaintiff
had one-sixth share in the ancestral property and one-third
share in the separate property. The said decree is being
challenged by Defendant No. 1."
9. The suit between the parties was adjudicated and vide the
judgment and order dated 30.12.1986 the Civil Judge drew a preliminary
decree as under:
"
ORDER
The suit is decreed preliminarily on contest against defendant
No: 1 with costs an D-2 without cost. Plaintiff is entitled to 2
annas 8 pies (1/6th) share and 1/3rd share in respect of
ancestral and self acquired properties and super structures
thereon (Houses and buildings) respectively of Late Kumar
Charan Sahu out of the suit properties. She is also entitled to
A
B
C
D
E
F
G
H
33
the same share in respect of mense profits thereof, from the
date of institution of the suit. Defendant No-2 is also entitled
to same share of properties and mense profits. Defendant No:
1 is entitled to 10 annas 8 pies (2/3rd) and 1/3rd share in
ancestral and self acquired properties respectively and
superstructure thereon of Late Kumar Charan Sahu and mense
profits thereof. An Amin Commissioner is to be deputed for
effecting partition on the above basis who is the final decree
proceeding will apportion shares on above basis after
ascertaining the details of ancestral and self acquired
properties an superstructures thereon and also the quantum
of mense profits in the light of indications and finding reached
on different issues discussed in the judgment. After
ascertainment of such share plaintiff and Defendant No:2
are to be put in possession of such properties that would be
allotted to them separately in consequence of the final decree
proceeding. Hearing fee at contested useable."
10. Thus, the Trial Court directed that:
(i)
the properties listed in the Schedule 'A' to 'F' referred to
above shall be considered as ancestral properties, while the
properties listed in the Schedule 'J' (1 to 8 properties) were
considered as the self-acquired properties of Late Shri
Kumar Sahoo.
(ii)
the Respondent No. 1 (herein Original Plaintiff) was held
entitled to 1/6th share in the ancestral properties and 1/3rd
share in the self-acquired properties of Late Shri Kumar
Sahoo. The Civil Court also directed that the plaintiff was
entitled to mesne profits.
(iii)
similar shares and benefits accrued to the Defendant No. 2
(Respondent No. 2 herein)
(iv)
the Defendant No. 1 (the Plaintiff herein) was held entitled
to 4/6th share in the ancestral properties and 1/3rd share in
the self-acquired properties of Late Shri Kumar Sahoo
including the mesne profits.
11. It is pertinent to note that as against the judgment and decree
of the Trial Court referred to above, it is only the Defendant No. 1, who
thought fit to file F.A. No. 359 of 1986 before the High Court of Orissa.
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU
& ORS. [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
34
SUPREME COURT REPORTS
[2023] 5 S.C.R.
This appeal was essentially filed on the ground that all the properties of
Late Shri Kumar Sahoo, as scheduled in the plaint should have been
held to be ancestral properties.
12. It appears from the materials on record that while the first
appeal referred to above was pending before the High Court, the
Defendant No. 2 (Respondent No. 2 herein) entered into a settlement
with the Defendant No.1 thereby relinquishing her share in accordance
with the decree passed by the Trial Court in lieu of consideration of Rs.
50, 000/- and the portions of land in Schedule 'A' and 'B'. In such
circumstances referred to above, a compromise petition dated 29.03.1991
duly signed on affidavit by the Defendant Nos. 1 and 2 resply, was filed
before the High Court which came to be registered as the Miscellaneous
Case No. 643 of 1990 in F.A. No. 359 of 1986 referred to above.
13. The learned Single Judge of the High Court, while disposing
of the F.A. No. 359 of 1986 observed as under:
"4. In this appeal, it is first contended that certain properties
having been given to the daughters by the father during his
life time and certain properties having been gifted to them at
the time of their marriage and certain other properties having
been purchased by the father in the names of the two
daughters, namely plaintiff and Defendant No. 2, they are
not entitled to any separate share after death of the father.
5. There is no challenge as such to the validity of the gift
deeds, if any, in favour of the daughters at the time of their
marriage. There is also no material to indicate that certain
properties had been purchased in the names of the daughters
as name-lenders and actually the property belonged to the
father. Therefore, even assuming that certain properties had
been gifted and had been purchased in the names of plaintiff
and Defendant No. 2, that cannot be a ground to negate the
right of succession of the plaintiff and Defendant No. 2, which
accrued after death of the father.
6. The learned counsel for the appellant also contended that
some properties were self-acquired properties of Defendant
No. 1 himself. A perusal of the written statement indicates
that no such specific case had been made out in the written
statement, nor any such material is available on record. In
A
B
C
D
E
F
G
H
35
absence of any evidence worth the name, it is difficult to accept
such a contention raised by the appellant.
7. The learned counsel appearing for the appellant then
contended that during pendency of the appeal, a compromise
has been effected between the present appellant and
Respondent No. 2, wherein Respondent No.2 has given up
her share in favour of Defendant No. 1. Since such
compromise is otherwise lawful and it does not prejudicially
affect the right of the plaintiff, it can be given effect to and
the decree of the trial court is to be modified accordingly."
8. Thus, though all other contentions of the appellant are not
acceptable, in view of the compromise the decree of the trial
court is modified to the extent that Defendant No. 1 shall also
be entitled to the share of Respondent No. 2. In other words,
he would be entitled to 5/6th share in the ancestral property
and 2/3rd share in the separate properties as determined by
the trial court. The decree of the trial court is modified to the
above extent.
9. It appears that during the pendency of the appeal, receivers
had been appointed at different times and presently Defendant
No. 1-appellant is continuing as the receiver. It further appears
that certain amounts have been deposited in this Court which
have been kept in fixed deposit. The fixed deposit in this court
shall be renewed from time to time for appropriate period to
fetch maximum interest. The amount which is not yet kept in
fixed deposit shall also be kept in fixed deposit in similar
manner so that the amount can be disbursed in accordance
with the direction to be made in the final decree after the
final decree proceedings are over. If the parties do not come
to any amicable arrangement, the plaintiff or Defendant No.
1 may initiate the final decree proceeding. The trial court
after making necessary adjustment towards any justified
expenditure, et cetera, shall pass a direction regarding
disbursement of the amount in accordance with the shares
now indicated in this judgment. The receiver shall henceforth
act under the direction of the trial court and all necessary
obligation relating to accounting and maintenance of the
properties etc. shall be determined by the trial court and if
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU
& ORS. [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
36
SUPREME COURT REPORTS
[2023] 5 S.C.R.
any deposit is required to be made by the receiver, the same
shall be made in the trial court which shall make similar
arrangements regarding fixed deposits. Applications for
removal of the receiver or for imposing any fresh conditions
can be made before the trial court which is free to deal with
all such applications."
(Emphasis supplied)
14. The Defendant No. 1 (Appellants herein) continued with the
litigation by filing the Letters Patent Appeal under Chapter VI of the
Rules of High Court of Orissa, 1948. The Letters Patent Appeal was
filed essentially on the ground that the learned Single Judge of the High
Court had failed to correctly adjudicate the issue whether some of the
properties as mentioned in the schedule to the plaint were self-acquired
properties of Late Shri Kumar Sahoo or all the properties were ancestral
properties.
15. The Defendant No. 1 (Appellants) went in appeal before the
Division Bench of the High Court essentially on the ground that all the
properties were ancestral as the same are derived out of the same nucleus
of the existing ancestral properties. The appeal before the Division Bench
was registered as the Appeal bearing No. AHO No. 133 of 2000.
16. On 28.06.2001, the Defendant No. 2 (Respondent No. 2 herein)
challenged the validity of the settlement deed referred to above vide
cross appeal in the AHO No. 133 of 2000.
17. In the Letters Patent Appeal filed by the Appellants herein,
the Court addressed itself on the following points of determination:
"(i) whether the findings and reasons recorded on the
contentious issues by the learned trial judge are either
erroneous or error in law warranting interference by this
Court in exercise of its power?
(ii) whether the first appellate judge in not dealing with the
grounds urged by the first defendant by framing appropriate
point on the findings recorded on the contentious issues by
the learned trial court, this court requires interference with
the impugned judgment in this appeal though, this Court's
jurisdiction in this Letter Patent Appeal is also analogous to
the first appellate court?
A
B
C
D
E
F
G
H
37
(iii) whether the findings recorded in issue no.5, holding that
some of the schedule properties are self-acquired properties
of late Kumar Sahoo is erroneous or error in law and liable
to be interfered with by this Court in this appeal?
 (iv) whether the compromise petition filed by the counsel for
defendants 1 & 2 In the First Appeal without special
authorization in their favour for signing the compromise
petition by defendant no. 2, and plaintiff is not a party to the
compromise petition, could have been accepted by the learned
Single Judge and modified the judgment of the trial court in
so far as the share assigned to the defendant no.2, the same
is legal and valid?
(v) what decree the parties are entitled to?"
18. The Division Bench of the High Court vide its impugned
judgment and order dated 5.05.2011 dismissed the appeal i.e., the AHO
No. 133 of 2000 filed by the Defendant No. 1 (Appellant herein) and
allowed the cross appeal filed by the Defendant No. 2. Thus, the Division
Bench of the High Court set at naught the compromise entered into
between the Defendants.
19. In such circumstances referred to above, the Appellants (Legal
heirs of the Original Defendant No. 1) are here before this Court with
the present appeals.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
20. Mr. R. Basant, the learned Senior Counsel appearing for the
appellants vehemently submitted that the courts below committed a serious
error in recording a finding that the properties in Schedule 'J' (1 to 8
properties) were self-acquired properties of Late Shri Kumar Sahoo.
According to Mr. Basant all the properties devolving upon the Plaintiff
and Defendants are ancestral in nature.
21. It was submitted that there is nothing on record to indicate
that Late Shri Kumar Sahoo had any independent source of income
through which, he during his lifetime had acquired certain properties
which, does not form part of the ancestral properties. According to Mr.
Basant, the J series properties (1 to 8 properties) were bought by Late
Shri Kumar Sahoo with the aid of the income derived from the ancestral
properties and in such circumstances, the J series (1 to 8 properties)
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU
& ORS. [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
38
SUPREME COURT REPORTS
[2023] 5 S.C.R.
would form part of the same nucleus of existing ancestral properties
which could now be said to have been devolved on the Plaintiff and the
Defendants as ancestral properties.
22. Mr. Basant, thereafter, addressed the Court on the effect of
the Hindu Succession (Amendment) Act, 2005 (for short, 'the
Amendment Act, 2005' or '2005 Amendment') to the Hindu Succession
Act, 1956 (for short, 'the Act 1956'). He submitted that the Respondent
should not be allowed to raise the plea of effecting rights under the
amendment to Section 6 of the Act 1956 after these many years. He
further submitted that assuming for the moment that the 2005 Amendment
has altered the rights of the parties, more particularly, the sisters as coparceners, however, in view of the settlement deed, the rights of the
Respondent No. 2 (herein Original Defendant No. 2) could be said to
have been extinguished and transferred to the Appellants. He submitted
that the transfer by the Defendant No. 2 of her entire share in favour of
the Defendant No. 1 would be a disposition of her share/rights in the suit
properties. The disposition which took place in 1991 cannot be permitted
to be unsettled in view of the 2005 Amendment.
23. He submitted that the retrospective effect of the 2005
Amendment would cause havoc to the alienation made between 1965
and 2005 and in such circumstances, the rights of the Respondent No. 1
(Plaintiff), if any, would accrue to the heirs qua the unalienated/
encumbered ancestral property, as available with the nucleus of the joint
family property with effect from 20.12.2004 only.
24. Mr. Basant submitted that as the alienations which might have
been taken place prior to 20.12.2004 cannot be reopened in order to
ascertain which properties are available for partition, the matter should
be remitted to the Trial Court.
25. He further submitted that in accordance with the proviso to
sub-section (1) of Section 6 of the Act 1956 (as amended on 9.09.2005)
no disposition or alienation including partition or testamentary disposition
of property which took place before 20.12.2004 shall be invalidated or
set aside on account of the 2005 Amendment.
26. Mr. Basant in support of his aforesaid submission invited the
attention of this Court to the decision of this Court in the case of Vineeta
Sharma v. Rakesh Sharma and Others reported in (2020) 9 SCC 1,
more particularly, the observations in para 76 at page 58, which reads
thus:
A
B
C
D
E
F
G
H
39
"76. It was argued that in case Parliament intended that the
incident of birth prior to 2005 would be sufficient to confer
the status of a coparcener, Parliament would need not have
enacted the proviso to Section 6(1). When we read the
provisions conjointly, when right is given to the daughter of
a coparcener in the same manner as a son by birth, it became
necessary to save the dispositions or alienations, including
any partition or testamentary succession, which had taken
place before 20-12-2004. A daughter can assert the right on
and from 9-9-2005, and the proviso saves from invalidation
the above transactions."
 (Emphasis supplied)
27. Mr. Basant submitted that there was no good reason for the
High Court to look into the validity and execution of the settlement deed
between the Defendant Nos. 1 and 2 resply. If all the properties are
considered to be ancestral, the Plaintiff is entitled to 1/6th share of the
total ancestral properties, while the Defendant No. 1 would be entitled
to 5/6th share of the total ancestral property. He submitted that in the
event, it is determined that the J series properties (1 to 8 properties) are
in fact self-acquired, then the Plaintiff is entitled to 1/6th share of the
ancestral property and 1/3rd share of the self-acquired property, while
the Defendant No. 1 would be entitled to 5/6th share of the total ancestral
property and 2/3rd share of the self-acquired property.
28. In support of his submission that the settlement between
Defendant Nos. 1 and 2 resply was lawful, just and proper, he relied on
the following decisions of this Court:
(i) Bai Chanchal and Others v. Syed Jalaluddin and Others
reported in (1970) 3 SCC 124 at para 8,
(ii) Byram Pestonji Gariwala v. Union Bank of India and
Others reported in (1992) 1 SCC 31 at para 38-41,
(iii) D.S. Lakshmaiah and Another v. L. Balasubramanyam
and Another reported in (2003) 10 SCC 310 at para 18,
(iv) Jineshwardas (Dead) by LRs. and Others v. Jagrani (Smt)
and Another reported in (2003) 11 SCC 372 at para 7-8 and
(v) Pushpa Devi Bhagat (Dead) through LR. Sadhna Rai (Smt)
v. Rajinder Singh and Others reported in (2006) 5 SCC 566 at paras
18, 19, 23-25.
PRASANTA KUMAR SAHOO & ORS. v. CHARULATA SAHU
& ORS. [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
40
SUPREME COURT REPORTS
[2023] 5 S.C.R.
29. In such circumstances referred to above, Mr. Basant prays
that there being merit in his appeals, the same may be allowed and the
impugned judgment and order passed by the High Court be modified
accordingly.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
NO. 1 (ORIGINAL PLAINTIFF)
30. Ms. B. Sunita Rao, the learned counsel appearing for the
Respondent No. 1 (Original Plaintiff) vehemently submitted that no error
not to speak of any error of law could be said to have been committed
by the High Court in passing the impugned judgment and decree. She
submitted that in view of the decision of this Court in the case of Vineeta
Sharma (supra) the Plaintiff is now entitled to 1/3rd 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
decree can be awarded/altered or modified in the event of the changed
circumstances, even if no appeal has been filed.
31. The learned counsel further submitted that in view of the
amendment of 2005 to Section 6 of the Act 1956 and the decision of this
Court in case of Vineeta Sharma (supra) the daughters are entitled to
equal share with that of the son in the coparcenary properties. The
Plaintiff being one of the daughters of Late Kumar Sahoo is entitled to a
larger and equal share in the ancestral property and in such circumstances
the decree now needs to be modified on account of the operation of law.
32. The learned counsel submitted that the Plaintiff and Defendants
are now each entitled to 1/3rd share of both ancestral and self-acquired
properties of Late Kumar Sahoo. While explaining the true import of the
operation of the amended provision of Section 6(1) of the Act 1956, she
submitted that the alienations before 20.12.2004 are permitted but the
property alienated would fall to the share of the co-parcener, who made
the alienation, if no legal binding necessity is proved. The learned counsel
pointed out that the Trial Court has held that alienation would be a part
of the share of the Defendant No. 1. She submitted that any alienation
after the date of filing of the suit would be hit by the doctrine of lis
pendens. The alienation prior to the filing of the suit was considered by
the Trial Court and specific finding in that regard has been recorded.
A
B
C
D
E
F
G
H
41
33. It was pointed out that out of 4.408 acres of land in Schedule
'A' and 'B' properties, the unencumbered property available for immediate
division is 3.762 acres (around 94 guntas).