The Supreme Court held that parties in a partition suit can seek benefit of amended laws during the pendency of the suit, and the preliminary decree can be varied in the final decree proceedings. In a suit for partition of joint property, a decree by consent among only some parties cannot be maintained unless all parties sign the settlement. In this case, the High Court invalidated a settlement deed between siblings and determined the share of each party in the ancestral and self-acquired properties of their deceased father. The appellant argued that the amendments to the Hindu Succession Act, 1956, cannot be applied retroactively.
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 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 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 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 6(5).
Vineeta Sharma Case
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 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 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 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) 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.
Vipan Aggarwal and Another v. Raman Gandotra and Others [2022 SCCOnLine SC 1357]
Final conclusions:
(i) 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.
(ii) As we have held that the settlement between the Original 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.
(iv) Since the Defendant No. 1 was appointed as receiver, the Appellants shall now furnish accounts before the Trial Court.
Prasanta Kumar Sahoo & Ors. v Charulata Sahu & Ors. [Civil Appeal No. 2913 of 2018]
