LexPRASANTA KUMAR SAHOO & ORS. versus CHARULATA SAHU & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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 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, 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
Excerpt shown. Read the full judgment & AI analysis in Lexace.