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

The Supreme Court Bench comprising of Justice A.S. Bopanna and Justice J.B. Pardiwala, while adjudicating an appeal filed in Prasanta Kumar Sahoo & Ors. v Charulata Sahu & Ors., has held that in a suit for partition of joint property, a decree by consent amongst only some of the parties cannot be maintained. When a settlement deed has been executed in respect of a joint property, then such settlement must record written consent and signatures of ‘all’ the Parties in order to attain legality. 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 CourtCase Title: Prasanta Kumar Sahoo & Ors. v Charulata Sahu & Ors.Citation: 2023 LiveLaw (SC) 262Hindu 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...

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

Pallavi Mishra

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