Summary
A daughter sued in 1980 for partition of her father's properties; the 1986 preliminary decree gave each daughter one-sixth of the ancestral and one-third of the self-acquired properties. In the son's first appeal a compromise between him and the other daughter was recorded in 2000, enlarging his share. In his Letters Patent Appeal the Orissa High Court dismissed the appeal and, on the second daughter's cross-objection, set aside the compromise. The Supreme Court dismissed the son's appeals: under Vineeta Sharma daughters are coparceners by birth and shares must be redetermined before the final decree despite the preliminary decree, so each daughter takes one-third of all properties; the cross-objection was maintainable; and the compromise was unlawful, not being joined by all parties to the partition suit and having been signed by counsel without special authority.
Issues
- Whether, after the Hindu Succession (Amendment) Act, 2005 as interpreted in Vineeta Sharma v. Rakesh Sharma, the shares of daughters fixed by a preliminary decree of partition can be redetermined in final decree proceedings.
- Whether a respondent may challenge a compromise recorded by the first appellate court by way of cross-objection in a Letters Patent Appeal.
- Whether a compromise in a partition suit signed by counsel for one defendant without special authority and not joined by the plaintiff is a lawful compromise under Order XXIII Rule 3 CPC.
Provisions considered
- Section 6 as substituted in 2005, with the proviso to sub-section (1) and sub-section (5) and its Explanation, Hindu Succession Act, 1956A daughter is a coparcener by birth with the same rights as a son, whether or not the father was alive on 9 September 2005; only dispositions, alienations, testamentary dispositions and partitions by registered deed or court decree effected before 20 December 2004 are saved, and a preliminary decree is not such a partition. (¶¶ 56, 58, 60, 71, 72, 73, 76, 79, 80, 82)
- Order XLI Rule 22 read with Order XLIII Rule 1-A(2), Code of Civil Procedure, 1908A respondent's cross-objection partakes of the right of appeal and may be used to contend that a compromise should not have been recorded; the second daughter's cross-objection in the Letters Patent Appeal was therefore maintainable. (¶¶ 85, 86, 87, 88, 89, 91)
- Order XXIII Rule 3, Code of Civil Procedure, 1908A compromise must be in writing, signed by the parties and lawful; in a partition suit all parties must join, and a compromise signed by counsel without specific authority and not joined by the plaintiff, with variance between the agreement and the petition, cannot be recorded. (¶¶ 92, 93, 94, 99, 100, 104)
Held
- Following Ganduri Koteshwaramma and Vineeta Sharma, a preliminary decree only determines rights and a partition suit is fully decided only by the final decree; if the law changes in the interregnum the court must redetermine the shares, and mere severance of status by filing the suit does not amount to partition. The daughters are therefore entitled to one-third each in all the ancestral and self-acquired properties, and the question whether all properties were ancestral pales into insignificance. (¶¶ 60, 73, 77, 78, 79, 80, 81, 82)
- The right to prefer a cross-objection partakes of the right of appeal and survives even if the main appeal fails; read with Order XLIII Rule 1-A(2) and Banwari Lal v. Chando Devi, a cross-objector may question the validity of a compromise recorded under Order XXIII Rule 3, so the second daughter's cross-objection filed in the Letters Patent Appeal was maintainable despite the lapse of time. (¶¶ 85, 86, 88, 89, 90, 91)
- The plaintiff never signed or joined the settlement between her brother and sister; in a suit for partition of joint property a decree by consent among some only of the parties cannot be maintained, and on that ground alone the settlement was unlawful. The first appellate court recorded it without recording the parties' statements or enquiring into its terms, the compromise petition was signed by the second defendant's advocate without special vakalatnama or express authority, and its terms varied from the agreement; following Himalayan Cooperative Group Housing Society, a lawyer must be specifically authorised to compromise a claim. (¶¶ 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104)
Result
Appeals dismissed; preliminary decree modified so that each daughter is entitled to a one-third share in all the ancestral and self-acquired properties of the deceased father; the compromise between the son and the second daughter held unlawful, so the appellants take only their one-third share and must furnish accounts as receiver before the trial court; trial court to draw the final decree within three months; parties to bear their own costs.