SUPREME COURT HOLDS THAT PARTIES TO THE SUIT ARE ENTITLED TO EQUAL SHARE AS COPARCENERS IN THE ANCESTRAL PROPERTIES
A two Judge Bench of the Supreme Court comprising of Justice A.S. Bopanna and Justice J.B. Pardiwala passed a Judgment dated 29.03.2023 in the case of ‘Prashanth Kumar Sahoo & Ors v Charulata Sahoo & Ors, Civil Appeal No. 2913-2915 of 2018’ and held that as the Compromise Deed executed by the Parties was not executed in writing and with consent, in accordance with Order 23 of the Code of Civil Procedure (CPC),1908 (Compromise of Suit) hence, such a compromise deed was held invalid. As a result, the Parties were held entitled to equal share as coparceners in the Ancestral Properties.
In the present case, one, Kumar Sahoo (Deceased) had inherited certain share in the ancestral properties, as a coparcener, sometime in 1940, upon partition of the said properties. In 1969, when Kumar Sahoo passed away, he was survived by his three children, (1) Ms. Charulata, Daughter of the Deceased – Plaintiff to the Suit, (2) Late Mr. Prafulla Sahoo, Son of the Deceased – Defendant No 1 and (3) Late Ms. Santilata, Daughter of the Deceased – Defendant No 2.
- On 3.12.1980, the Plaintiff filed a Suit for Partition in Title Suit No.348 of 1980, before the Ld. Trial Court claiming her share in the ancestral properties of her Deceased Father.
- The Ld. Trial Court adjudicated the matter and vide Judgment and Order dated 30.12.1986 held that properties under Schedule A-F in the Suit are ancestral properties (Ancestral Properties), while properties under Schedule J are self-acquired properties of the Deceased (Self-Acquired Properties).
- The Trial Court also passed a Preliminary Decree and held that the Plaintiff and the Defendant No. 2 were each entitled to 1/6th share in the Ancestral Properties and 1/3rd share in the Self-Acquired Properties of the Deceased, whereas, the Defendant No. 1 was entitled to 2/3rd share in the Ancestral Properties and 1/3rd share in the Self-Acquired Properties of the Deceased.
- Aggrieved by the Trial Court’s Judgment dated 30.12.1986, the Defendant No.1 filed a First Appeal No. 359 of 1986 before the High Court of Orissa on the ground that the Trial Court should have held all the properties of the Deceased in the Plaint as ancestral properties.
- During the pendency of the First Appeal (FA) before the High Court, the Defendant No. 2 entered into a settlement with the Defendant No.1, thereby, relinquishing her share in the partitioned Property as decreed by the Trial Court, in lieu of consideration of Rs. 50,000/- and the portions of land in Schedule ‘A’ and ‘B’. According to the material on record, the Defendant Nos. 1 and 2 signed a Compromise Petition dated 29.03.1991 on an Affidavit and registered it under Miscellaneous Case No. 643 of 1990 in A. No. 359 of 1986 before the High Court.
- The Learned Single Judge of the High Court while disposing FA No. 359 of 1986 dated 01.08.2000 considered the Compromise Petition and modified the share of Defendant No. 1 to 5/6th portion in the Ancestral Properties and to 2/3rd portion in the Self-Acquired Properties. The Learned Single Judge further held that as there is no evidence on record to show that all properties of the Deceased were ancestral properties, the contention of the Defendant No. 1 to treat all properties as ancestral properties was not accepted.
- Aggrieved by the Judgment of the Learned Single Judge dated 01.08.2000, the Defendant No. 1 filed Letters Patent Appeal (LPA) in Appeal against High Court Order (AHO) No. 133 of 2000 before a Division Bench of the High Court on the ground that the learned Single Judge of the High Court had failed to adjudicate the issue in differentiating the properties.
- During the pendency of the above LPA, the Defendant No.2 challenged the validity of the Settlement Deed dated 29.03.1991 and filed a Cross Appeal on 28.06.2001.
- The Division Bench of the High Court vide its Judgment and Order dated 05.05.2011 dismissed AHO No. 133 of 2000 filed by the Defendant No.1. The Division Bench allowed the Cross Appeal filed by the Defendant No. 2 on the ground that the parties failed to fulfill the essential requirements necessary to validate the Settlement Deed under Order XXIII of CPC, 1908 (Compromise of Suit), thereby setting aside the Settlement Deed.
- Aggrieved by the High Court’s Order of dismissal dated 05.05.2011 and other matters relating to the devolution of Ancestral Property, the legal heirs and representatives of the Defendant No.1 filed Civil Appeals No. 2913-2915 of 2018 before the Supreme Court.
Supreme Court Observations:
The Apex Court, after hearing the Counsels appearing for both the Parties and considering all the material on record, made the following observations –
(i) In the issue relating to the devolution of property among the legal heirs of the Deceased according to the Hindu Succession Act,1956 along with its Amendment in 2005, the Supreme Court referred to the following cases :
(a) ‘Badrinarayan Shankar Bhandari and Others v. Omprakash Shankar Bhandari, AIR 2014 Bom 151 (FB)’.
(b) ‘Ganduri Koteshwaramma and Another v. Chakiri Yanadi and Another,(2011) 9 SCC 788’
(c) ‘Vineeta Sharma v. Rakesh Sharma and Others,(2020) 9 SCC 1’
The Apex Court in the aforesaid cases held that it is the final decree in a Partition Suit that determines the actual shares to which the parties are entitled to in the property by metes and bounds.
(ii) In determining whether the High Court was justified in allowing the Cross-Appeal filed by the Defendant No.2 with regard to challenging the Settlement Deed, the Supreme Court held that the Appellant- Defendant No.2 was well within the legal purview to file an Appeal as her right; therefore, the High Court was also justified in its action to allow the same.
(iii) In determining the legality and validity of the Settlement Deed, the Apex Court held that a compromise or settlement among the parties to a suit under Order 23 of the Code of Civil Procedure (CPC), 1908 (Compromise of Suit) must be in writing and signed by the parties. But in this case, the Learned Advocate appearing for the Defendant No. 2 signed the Compromise Petition without an express consent from the respective party. The Supreme Court emphasized that it is an imperative duty of the Court to ascertain the genuineness of the Compromise / Settlement Deed before recording the statements of the parties. Thus, as the Defendant No. 2’s Advocate signed the Deed without any express authority or without Special Vakalatnama executed in favor of the Advocate by the Defendant No. 2, it compromised the legality of the Deed.
(iv) The Apex Court vide Judgment dated 29.03.2023 affirmed the modifications made by the High Court with regard to the share in the Ancestral Properties according to the Hindu Succession (Amendment) Act, 2005 (39 of 2005) whereby, it was held that the Plaintiff and the Defendant No. 2 as coparceners were entitled to 1/3rd share in the entire Ancestral Properties. This affirmation by the Supreme Court placed the three heirs of the Deceased on equal footing as coparceners of a Hindu Joint Family irrespective of their gender.
Thus, based on the aforesaid observations, the Apex Court vide Judgment dated 29.03.2023 dismissed the Appeals filed by the Defendant No.1 and set aside the unlawful Settlement Deed and thereby, upheld the High Court Judgment dated 05.05.2011. Further, as this litigation is almost four decades old, the Hon’ble Court directed the Ld. Trial Court to draw the final Decree within 3 months from the date of the said Judgment and concluded the case by disposing all pending Applications.
The Indian Lawyer