Prasanta Kumar Sahoo & Ors. vs Charulata Sahu & Ors.

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 been committed upon Courts below, while determining the shares of the parties. The only thing that needs to be done now is to give effect to the amendment in the provisions of Section 6 of the 1956 Act and redetermine the shares of the parties accordingly. The Plaintiff is entitled to 1/3rd share in all the properties of her Late father. The issue whether all the properties were ancestral as raised on behalf of the Appellants pale into insignificance. [Paras 63, 64, 80 and 82][56-A-B; 67-B-D, F] Vineeta Sharma v. Rakesh Sharma and Others (2020) 9 SCC 1 : [2020] 10 SCR 135 – relied on.

Prakash and Others v. Phulavati and Others (2016) 2 SCC 36 : [2015] 12 SCR 579; Danamma alias Suman Surpur and Another v. Amar and Others (2018) 3 SCC

343 : [2018] 2 SCR 553 – referred to.

2.1 Whether the High Court was justified in allowing the cross-appeal filed by the Original Defendant No. 2 on the ground that the settlement arrived at between the Appellants (Defendant No 1 and Defendant No. 2) was not valid and binding under Order XXIII Rule 3 of the CPC.

Right of appeal is the creature of statute. There is no inherent right of appeal. No appeal can be filed, heard or determined on merits unless the statute confers right on the appellant and power on the Court to do so. The right to prefer cross-objection partakes of the right to prefer an appeal. The learned counsel appearing for the Defendant No. 2 (Respondent No. 2 herein) that a cross-appeal under Order XLI Rule 22 of the CPC is as effective as a regular first appeal and the same would sustain, even if, the regular first appeal is dismissed or withdrawn. A cross-appeal is the exercise of substantive right of appeal and only the procedure varies. The cross-appeal objector is entitled under Order XLI Rule 22 of the CPC read with Order XLIII Rule 1-A (2) of the CPC, to make good the submission that she was entitled in law to question the legality and validity of the settlement agreement recorded under Order XXIII Rule 3 of the CPC by way of a cross-appeal. The cross-appeal filed by the & ORS.

Original Defendant No. 2, questioning the legality and validity of the settlement was maintainable in law. [Paras 83, 85, 86, 88, 91][67-G-H; 68-D; 69-E; 70-A-B; 74-F]

Urmila Devi and Others v. Branch Manager, National Insurance Company Limited and Another (2020) 11 SCC 316 : [2020] 3 SCR 498; Banwari Lal v. Chando Devi (Smt) and Another (1993) 1 SCC 581 : [1992] 3 Suppl. SCR 524; Vipan Aggarwal and Another v. Raman Gandotra and Others 2022 SCCOnLine SC 1357 – relied on.

2.2 Under Order XXIII Rule 3 of the CPC as it now stands, 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. Indisputably, in the case on hand, the plaintiff has not put her signature on the deed of settlement, which was produced before the High Court in first appeal. The Plaintiff has made herself very clear that she never joined in the settlement between her brother i.e., the Defendant No. 1 and her sister i.e., the Defendant No. 2. On this ground alone, the settlement could be said to be unlawful, being without any written consent of all the parties. In a suit for partition of joint property, a decree by consent amongst some only of the parties cannot be maintained. [Paras 93, 94][76-E-G]

Gurpreet Singh v. Chatur Bhuj Goel (1988) 1 SCC 270 : [1988] 2 SCR 401 – relied on.

3. The third question that arises for consideration in context with the legality and validity of the settlement is whether the learned advocate appearing for the cross-objector i.e., Defendant No. 2 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. Indisputably, in the case on hand, the First Appellate Court had neither recorded the statements of the parties in the Court nor had made any inquiry into the terms of the settlement. It is in such circumstances that the High Court in its impugned order has observed that the Compromise Petition was signed by the advocate without any express authority or without special vakalatnama executed in favour of the advocate. In fact, the authority was expressly curtailed in the compromise deed. The High Court committed no error in holding that the settlement between the Defendant Nos. 1 and 2 was unlawful. [Paras 100, 104][79-C-D; 85-G]

4. 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. The settlement between the Original Defendant Nos.1 and 2 was not in accordance with law, the Appellants herein will not be entitled to the share of the Original Defendant No. 2. Appellants shall be entitled to only their 1/3rd share in the suit properties. [Para 105][85-H; 86-A-C] Himalayan Cooperative Group Housing Society v. Balwan Singh and Others (2015) 7 SCC 373 : [2015] 4 SCR 616 – relied on.

Bai Chanchal and Others v. Syed Jalaluddin and Others (1970) 3 SCC 124 : [1971] 2 SCR 171; Byram Pestonji Gariwala v. Union Bank of India and Others (1992) 1 SCC 31 : [1991] 1 Suppl. SCR 187; D.S. Lakshmaiah and Another v. L. Balasubramanyam and Another (2003) 10 SCC 310 : [2003] 3 Suppl. SCR 13;

Jineshwardas (Dead) by LRs. and Others v. Jagrani (Smt) and Another (2003) 11 SCC 372 : [2003] 4 Suppl. SCR 179; Pushpa Devi Bhagat (Dead) through LR. Sadhna Rai (Smt) v. Rajinder Singh and Others (2006)

5 SCC 566 : [2006] 3 Suppl. SCR 370; Ganduri Koteshwaramma and Another v. Chakiri Yanadi and Another (2011) 9 SCC 788 : [2011] 12 SCR 968; Badrinarayan Shankar Bhandari and Others v.

Omprakash Shankar Bhandari AIR 2014 Bom 151

(FB); United Bank of India, Calcutta v. Abhijit Tea & ORS.

Company Private Limited and Others (2000) 7 SCC 357 : [2000] 3 Suppl. SCR 153 – referred to.

Nityamoni Dasi v. Gokul Chandra Sen (1911) 9 Ind Cas 210 (Cal); Vir Singh and Others v. Kharak Singh and Others AIR 1925 Lah 280; Taraprasanna Sarkar and Another v. Kalikamohan Sarkar and Others AIR 1924 Cal 80; Govindammal v. Marimuthu Maistry and Others AIR 1959 Mad 7 – referred to.