Settlement Deed In A Partition Suit Must Include Written Consent Of All Parties; Consent Decree Among Only Some Parties Not Maintainable : Supreme Court

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 the joint property in favour of Mr. Prafulla, in lieu of a consideration of Rs. 50,000/-. However, such Settlement Deed was not signed by Ms. Charulata who held share in the joint property.

Mr. Prafulla continued litigating a First Appeal 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.

Mr. Prafulla filed a compromise petition in the said First Appeal pending before the High Court. The Single Judge of High Court disposed the First Appeal while holding the Settlement Deed to be valid and Mr. Prafulla to be entitled to Ms. Santilata’s share of property. However, nothing was decided on the question of which suit properties were ancestral or self acquired and a Letter Patent Appeal was filed before Division Bench of High Court on this issue alone.

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

Settlement Deed in a partition suit must include written consent and signature of ‘ALL’ parties

The Bench 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.

It was observed that the Settlement Deed dated 28.03.199 was executed between Mr. Prafulla and Ms. Santilata alone in respect of the joint property held by three siblings. Ms. Charulata being the third sibling and co-owner of the joint property, had not signed the settlement. The Bench held that the settlement deed 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 Division Bench of High Court and redetermined the shares of the parties. The Settlement Deed has been invalidated by the Bench and Mr. Prafulla cannot claim the share of Ms. Santilata.

Also from the judgment -Hindu Succession | If Law Gets Amended Before Passing Final Decree In Partition Suit, Parties Can Seek Its Benefit : Supreme Court

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

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