Hindu Succession | If Law Gets Amended Before Passing Final Decree In Partition Suit, Parties Can Seek Its Benefit : Supreme Court
The Supreme Court has held that during the pendency of a partition suit, the parties can seek benefit of the amended law, when final decree has not been passed. Accordingly, the preliminary decree in a partition suit can be varied in the final decree proceedings, if the law governing the parties has been amended.The Bench comprising of Justice A.S. Bopanna and Justice J.B. Pardiwala has...
The Supreme Court has held that during the pendency of a partition suit, the parties can seek benefit of the amended law, when final decree has not been passed. Accordingly, the preliminary decree in a partition suit can be varied in the final decree proceedings, if the law governing the parties has been amended.
The Bench comprising of Justice A.S. Bopanna and Justice J.B. Pardiwala has further held that in a suit for partition of joint property, a decree by consent amongst only some of the parties cannot be maintained. For the settlement to attain legality, it must record written consent and signatures of all the Parties(Prasanta Kumar Sahoo & Ors. v Charulata Sahu & Ors)
BACKGROUND FACTS
In 1969, Mr. Kumar Sahoo passed away and was survived by his three children namely, Ms. Charulata (daughter), Ms. Santilata (daughter) and Mr. Prafulla (son).
On 03.12.1980, Ms. Charulata filed a suit for partition before the Trial Court, claiming 1/3rd share in the ancestral as well as self-acquired properties of her deceased father, Mr. Sahoo.
The Trial Court passed a preliminary decree dated 30.12.1986 and held that Ms. Charulata and Ms. Santilata are entitled to 1/6th share in the ancestral properties and 1/3rd share in the self-acquired properties of Late Kumar Sahoo. The Trial Court also directed that the daughters were entitled to mesne profits. However, as regards Mr. Prafulla (son), he was entitled to 4/6th share in the ancestral properties and 1/3rd share in the self-acquired properties of Mr. Sahoo including the mesne profits.
Mr. Prafulla filed first appeal before the High Court, contending that all properties of Mr. Sahoo are ancestral properties. During the pendency of the appeal, Ms. Santilata and Mr. Prafulla entered into a Settlement Deed dated 28.03.1991, whereby Ms. Santilata relinquished her share in favour of Mr. Prafulla in lieu of a consideration of Rs. 50, 000/-.
Mr. Prafulla continued litigating before the High Court on the issue of whether certain properties which were subject matter of partition suit were ancestral or self-acquired by his father. In a parallel appeal, Ms. Charulata challenged the validity of the Settlement Deed dated 28.03.1991, entered between her sister and brother.
On 05.05.2011, the Division Bench of the High Court dismissed the appeal filed by Mr. Prafulla and invalidated the Settlement Deed entered between Mr. Prafulla and Ms. Santilata. Mr. Prafulla filed an appeal before the Supreme Court against the Order dated 05.05.2011. It was argued that amendments brought in 2005 to the Hindu Succession Act, 1956 (“Act, 1956”), whereby daughters became equal co-parceners as sons, cannot be pressed into service after so many years. Further, the rights of Ms. Santilata stood extinguished and were transferred to Mr. Prafulla in view of the Settlement Deed.
SUPREME COURT VERDICT
During pendency of a partition suit and no final decree been passed, the parties can seek benefit of the amended law and request Trial Court to decide the case accordingly
The Bench placed reliance on the judgment in Vineeta Sharma v. Rakesh Sharma and Ors., (2020) 9 SCC 1, wherein it was held that the amended Section 6 of the Hindu Succession Act, 1956, which gave coparcenary rights to daughters w.e.f. 09.09.2005, would also be applicable to cases where the male coparcener dies prior to the Amendment in 2005. It was further held that 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 subsequent event which results in enlargement, diminution or alteration in the share/rights of the Parties, can be taken into consideration while passing the final decree.
The Bench opined that if the Trial Court had partitioned the father’s properties equally (1/3 share each) between son and daughters, then it would not be in tune with the law prevailing in 1986. However, the allocation of equal share to daughters in all properties of the father would be legal while passing the final decree in view of the Vineeta Sharma v. Rakesh Sharma and Ors. judgment.
“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 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.”
It has been held that in a partition suit the preliminary decree can be varied in the final decree proceedings, if the law governing the parties has been amended.
Settlement Deed in a partition suit must include written consent and signature of ‘ALL’ parties
It has been observed that as per Order XXIII Rule 3 of the Civil Procedure Code, 1908, 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.
Since Ms. Charulata did not sign the Settlement Deed between her siblings, the settlement is unlawful for being without the 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.
The Bench upheld the allocation of share done by the Trial Court and the High Court and redetermined the shares of the parties. The Preliminary Decree of the Trial Court has been modified to the extent that the daughters are entitled to 1/3rd share in all the properties i.e. ancestral and self-acquired properties of Late Kumar Sahoo.
The Settlement Deed has been invalidated and Mr. Prafulla cannot claim the share of Ms. Santilata.
Senior Advocate Mr. R Basant appeared for the appellants; Advocate Ms. B. Sunita Rao appeared for the respondents.H
Case Title: Prasanta Kumar Sahoo & Ors. v Charulata Sahu & Ors.
Citation: 2023 LiveLaw (SC) 262
Hindu Succession Act 1956 -the institution of a suit for partition by a member of a joint family is a clear intimation of his intention to separate, and there was consequential severance of the status of jointness- 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 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- even though filing of partition suit brings about severance of status of jointness, such legislative amendment or subsequent event will have to be taken into consideration and given effect to in passing the final decree in the partition suit-This is because, the partition suit can be regarded as fully and completely decided only when the final decree is passed. It is by a final decree that partition of property of joint Hindu Family takes place by metes and bounds -Para 73(C)- followed Vineeta Sharma v. Rakesh Sharma and Ors., (2020) 9 SCC 1;
Partition Suit- Hindu Succession Act 1956- Effect of 2005 amendment to pending partition suit- . 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- Para 80-followed Vineeta Sharma v. Rakesh Sharma and Ors., (2020) 9 SCC 1;
Code of Civil Procedure - Order XXII Rule 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 a suit for partition of joint property, a decree by consent amongst some only of the parties cannot be maintained- Para 93, 94.
Code of Civil Procedure - Order XXII Rule 3-d advocate appearing for the Defendant 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- Para 100