Supreme Court: Hindu Succession Act ,2005 Amendment Does Not Limit Daughters' Pre-Existing Inheritance Rights U/S 8 of Hindu Succession Act

 (ii) Section 6(5) of the H.S. Act is a saving clause of narrow and strict application. It does not create a jurisdictional bar to the institution of a suit for partition. Whether a valid partition within the meaning of Section 6(5) has been effected, and whether such partition is binding on persons who were not parties to it, are contested questions of fact and law that must be adjudicated at trial. The High Court erred in rejecting the plaint at the threshold on the basis of Section 6(5).

(iii) The Appellants have an independent right Under Section 8 of the H.S. Act, 1956 as Class I heirs of the propositus who died intestate on 06.03.1985. This right accrued in 1985 by operation of the proviso to the erstwhile Section 6 read with Section 8, is independent of the 2005 Amendment, and is unaffected by Section 6(5). The suit is maintainable, at minimum, to the extent of the Appellants' claim in the share of the propositus.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7939 of 2026 (Arising out of SLP (C) No. 23709 of 2024)

B.S. Lalitha and Ors. Vs. Bhuvanesh and Ors.

Hon'ble Judges/Coram:

Augustine George Masih and Sanjay Karol, JJ.

Author: Augustine George Masih, J.

Citation: 2026 INSC 499, MANU/SC/0483/2026

Dated: MAY 15, 2026.

Read full judgment here: Click here.

Print Page

Supreme Court: A partition carried out among the sons alone cannot defeat the daughters' succession rights in the father's share of the property

The operative reasoning of the High Court reads as follows:

In my opinion, even assuming that there is a partition in 2000 prior to 2004, even assuming that the daughters will not get the share, but it is not disputed that their father had died intestate. If they have a share in the father's share, still the suit can be maintained. If that is so, the Trial Court could not have rejected the plaint without even considering the scope of Order 7 Rule 11(d) of Code of Civil Procedure. It is not for the Trial Court to find out whether the Plaintiffs would succeed or not. That is not the ground to reject the plaint. Even assuming that the Plaintiffs are likely to fail in the suit, that cannot be a ground to go into the merits and decide the matter Under Order 7 Rule 11(d) of Code of Civil Procedure. Hence, rejection per se being misconceived, is liable to be set aside.

10. Two aspects of the 2013 order deserve emphasis. First, the High Court proceeded on the assumption most favourable to the Defendants, that the partition of 2000 is valid and that the daughters do not get a coparcenary share and still held the plaint to be maintainable because the father had died intestate and the daughters have a right in the father's share Under Section 8. In other words, the ratio of the 2013 order rested not on the coparcenary rights of daughters under the 2005 Amendment, but on the independent right of daughters as Class I heirs Under Section 8 of the Act. Second, this order was not challenged further by any party and attained finality. The matter was remanded to the Trial Court, issues were framed, and the suit was set down for evidence.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7939 of 2026 (Arising out of SLP (C) No. 23709 of 2024)

B.S. Lalitha and Ors. Vs. Bhuvanesh and Ors.

Hon'ble Judges/Coram:

Augustine George Masih and Sanjay Karol, JJ.

Author: Augustine George Masih, J.

Citation: 2026 INSC 499, MANU/SC/0483/2026

Dated: MAY 15, 2026.

Print Page

Silent Defendants, Noisy Records: How District Judges Should Handle Undefended Partition Appeals and Additional Evidence

 When a defendant appears but never files a written statement, and yet the trial court dismisses a partition suit with minimal reasoning, the real work shifts to the first appellate court. For District Judges, such appeals are a common—and delicate—test of how far one can go on the existing record, how to treat additional evidence under Order XLI Rule 27 CPC, and how strictly to enforce the “no new case in appeal” rule.

This article distils core principles from the CPC, the Evidence Act and leading Supreme Court decisions, using the typical pattern of a partition suit based on revenue records, an absent written statement, unrebutted plaintiff’s evidence, and an Order XLI Rule 27 application for certified 7/12 extracts or similar public documents.

“First appeals are not a mere formality; the District Court is the final court on facts.”

Print Page

Bombay HC: Whether a suit for partition between heads of all the branches of a joint Hindu property is maintainable even though children of those heads are not added as parties to the suit?

As laid down in the Principles of Hindu Law by Mulla in paragraph No. 332, in a suit for partition, the heads of all the branches are the necessary parties. Though not in so many words expressed by the district court, it was clearly observed that both the branches, of Shivram and Totaram, were duly represented in the suit and consequently, in the operative part, the suit property was directed to be divided in two equal parts and possession of one portion each was to be given to both these branches. It was further observed that the intention of the parties to have a particular relief has to be gathered from the pleadings and it was appropriate that the dispute between the two branches was settled once for all. Even if all the sons of Shivram and Totaram were not the parties to the suit, and though strictly speaking the situation was not covered by Order XLI Rule 33 of the Code of Civil Procedure, having found that there was due representation of both the branches and there could not have been any dispute as to equal share of each of these two branches, the interest of justice was met by decreeing the suit partly and by directing the suit property to be divided in two halves only. Pertinently, the district court had not directed a further division amongst the coparceners inter se from each of the branches. {Para 13}

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 249 of 1992, X.OBJ/41/2022 in SA/249/1992 and CA/1776/1992 in SA/249/1992

Decided On: 22.04.2022

Gumansing Shivram Patil Vs. Bhika Harsing Patil and Ors.

Hon'ble Judges/Coram:

Mangesh S. Patil, J.

Citation: 2022 SCC OnLine Bom 866 : (2022) 6 Mah LJ 177 : (2022) 4 Bom CR 124 : (2023) 1 HLR 528 : (2023) 242 AIC 295,

 MANU/MH/1409/2022

Print Page

Partition vs. Family Settlement: Understanding the Legal Distinctions in Property Division

 A comprehensive analysis of two distinct mechanisms for property distribution in Indian law

Introduction

In Indian property law, families often face the challenge of distributing ancestral or joint property among members. Two primary legal mechanisms facilitate this process: partition and family settlement. While both serve the purpose of property distribution, they operate under different legal frameworks with distinct implications for registration, stamp duty, and enforceability. Understanding these differences is crucial for families seeking the most appropriate method for their specific circumstances.

What is Partition?

Print Page

Supreme court: When Joint Hindu Family Property Is Partitioned, Shares Of Parties Become Their Self-Acquired Properties

It cannot be disputed that the properties divided among Defendant No. 1 and his brothers through partition deed dated 09.05.1986, are joint family properties. However, as per Hindu law, after partition, each party gets a separate and distinct share and this share becomes their self-acquired property and they have absolute rights over it and they can sell, transfer, or bequeath it as they wish. Accordingly, the properties bequeathed through partition, become the self-acquired properties of the respective sharers. {Para 17}

19. As reiterated above, after the joint family property has been distributed in accordance with law, it ceases to be joint family properties and the shares of the respective parties become their self-acquired properties. Hence, the suit property acquired by Defendant No. 1 became his self-acquired property, on being sold by his brother Thippeswamy to him, vide sale deed dated 16.10.1989. 

In the Supreme Court of India

(Before J.B. Pardiwala and R. Mahadevan, JJ.)

Angadi Chandranna Vs  Shankar and Others 

Civil Appeal No. 5401 of 2025

Decided on April 22, 2025

Citation: 2025 SCC OnLine SC 877,2025 INSC 532.

Print Page

How the court should deal with issue of grant of mesne profits under different types of suits?

 It is necessary at the outset to distinguish between three different types of cases in which a question of profits or mesne profits might arise. (1) Suits for ejectment or recovery of possession of Immovable property from a person in possession without title, together with a claim for past or past & future mesne profits. (2) Suits for partition by one or more tenants-in-common against others with a claim for account of past or past & future profits. (3) Suits for partition by a member of a joint Hindu family with a claim for an account from the manager. In the first case, the possession of the defts. not being lawful, the plff. is entitled to recover "mesne profits" as defined in Section 2, Clause (12), Civ. P. C., such profits being really in the nature of damages. In the second case, the possession & receipt of profits by the deft, not being wrongful the plff's. remedy is to have an account of such profits making all just allowances in favour of the collecting tenant in common. In the third case, the plff. must take the joint family property as it exists at the date of the demand for partition and is not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profit, except where the manager has been guilty of fraudulent conduct or misappropriation. The plff. would, however, be in the position of a tenant-in-common from the date of severance in status & his rights would have to be worked out on that basis. {Para 3}

4. Order 20, Rule 12, Civil P. C. deals with the first class of suit above referred to, while Order 20, Rule 18, Ideals with the second & the third categories. In view, however, of the considerable reliance placed on Order 20, Rule 12, Civil P. C. in Ghulusum Bivi v. Ahmadsa Rowther, 42 Mad. 296in dealing with the right of a plff. to profits accruing during the pendency of a partition suit, it is desirable to consider the scope of this provision. A claim for possession & a claim for past mesne profits have been held to be based on different causes of action, at any rate, in the decisions of this Court. Order 2, Rule 4, Civil P. C. however permits their joinder in one suit. There is a material difference between a claim for past & a claim for future mesne profits. Order 7, Rule 2, Civil P. C. & Section 7 Sub-section (1), Court fees Act, require that the amount of past mesne profits claimed should be approximately stated in the plaint & ad valorem court-fee should be paid on such amount. These provisions can have no application to future profits, for it is not possible for the plff. to predicate how long the litigation is going to last or give even an approximate statement of the amount of mesne profits that might become payable at the end. The cause of action for future mesne profits is the plff's. being kept out of possession during the suit & arises subsequent to the suit. In empowering Courts to award future mesne profits Order 20, Rule 12, Civ. P. C. makes an exception to the general rule that a plff. can only sue on such cause of action as has arisen on the date of instituting his suit. The object is to avoid the multiplicity of litigation that would result if persons, unlawfully kept out of possession of their lands were obliged to file suits every three years for mesne profits accruing after the institution of a suit in ejectment & during its pendency in the original & appellate Courts. But the plff. could not claim future mesne profits as a matter of right, the cause of action for such profits not having arisen to him at the date of the suit. Hence it is that the power of the Court to award mesne profits subsequent to the suit has been held to be discretionary & a mere omission, as distinguished from a refusal, to grant future mesne profits asked for, has been held not to bar a fresh suit for that relief. Doraiswami v. Subramania, 41 Mad. 188. In re Ekanathalingaswami, I.L.R. (1937) Mad. 284. Section 11, Court-fees Act, (as amended in Madras) requires payment of court-fee on future mesne profits only if the plff. desires to execute the decree awarding him such profits. The Judicial Committee interpreting the provisions of Section 196, Civ. P. C. of 1859 & this Court, construing the corresponding provisions of Order 20, Rule 12 held that whether a plaint contained or not a claim to future profits the Court has the power to grant them under these special provisions, Fakharuddin Mohamed Ashan v. Official Trustee of Bengal, 8 Cal. 178 & Kemgamswami v. Subbamma, 53 Mad. 838. When the Legislature has expressly empowered the Court to grant relief for future mesne profits, that is to say, in respect of a cause of action arising subsequent to the suit, there is no reason to circumscribe this power by importing a qualification that there must have been a specific prayer in the plaint for the recovery of such unascertainable & unpredictable profits. Future mesne profits could, we think, well be awarded as part of the general relief to which a plff. is entitled.

 IN THE HIGH COURT OF MADRAS

FULL BENCH

Civil Revn Petn No. 1695 of 1948

Decided On: 02.02.1951

Babburu Basavayya and Ors. Vs. Babburu Guravayya and Ors.

Hon'ble Judges/Coram:

P.V. Rajamannar, C.J. Vishwanatha Sastri and A.S. Panchapakesa Ayyar, JJ.

Author: P.V. Rajamannar, C.J.

Citation: AIR 1951 Madras 938.

Print Page

Under which circumstance Compromise between some of the parties in partition suit will become invalid and no valid decree can be passed based on said compromise?

  The present case depicts as to how on February 27, 1991 the court recorded the alleged agreement and compromise in a casual manner. It need not be impressed that Rule 3 of Order 23 does not require just a seal of approval from the Court to an alleged agreement or compromise said to have been entered into between the parties. The statute requires the Court to be first satisfied that the agreement or compromise which has been entered into between the parties is lawful, before accepting the same. Court is expected to apply its judicial mind while examining the terms of the settlement before the suit is disposed of in terms of the agreement arrived at between the parties. It need not be pointed out that once such a petition of compromise is accepted, it becomes the order of the Court and acquires the sanctity of a judicial order. {Para 11}

13. 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.

(Emphasis supplied)

91. Thus, in view of the aforesaid discussion, we hold that the cross-appeal filed by the Original Defendant No. 2, questioning the legality and validity of the settlement was maintainable in law.

92. We shall now look into the circumstances, as highlighted by the learned Senior Counsel appearing for the Defendant No. 2, rendering the settlement agreement dated 28.03.1991 invalid and not binding Under Order XXIII Rule 3 of the Code of Civil Procedure:

First, the alleged compromise agreement has admittedly not been signed by the Plaintiff who concededly has a share in the property as a coparcener. A written consent of all parties is necessary.

Secondly, a coparcenary undivided property in specie (Plot No. 140) has been allotted to Defendant 2 by Defendant No. 1 over which the Plaintiff also has an interest.

Thirdly, there is variance between the agreement and the compromise petition producing the agreement.

Fourthly, the judgment dated 01.08.2000 of the first appellate court accepting the compromise does not make allotment of the property allotted in specie to the Defendant No. 2. The first appellate court has proceeded on the wrong premise that the Defendant No. 2 has surrendered her rights to the Defendant No. 1. The first appellate court was further wrong in specifically noting that the compromise agreement does not cause any prejudice to the rights of the Plaintiff and therefore can be given effect.

Fifthly, the compromise agreement was entered into by beckoning a smaller share to the Defendant No. 2, while she has a larger share in view of Vineeta Sharma (supra). The consideration for the alleged compromise/settlement was therefore inadequate and whole agreement has to fall to the ground due to changed and supervening circumstances effectuated by change in law.

Lastly, even otherwise, the allotment of a co-ownership property in a specie to one coparcener cannot be modified in a preliminary decree. Moreover, under Hindu Law, the gift/renunciation/relinquishment or alienation by one coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners is void.

93. It is now well settled that Under Order XXIII Rule 3 of the Code of Civil Procedure 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. To constitute an adjustment, the agreement or compromise must itself be capable of being embodied in a decree. (See: Gurpreet Singh v. Chatur Bhuj Goel, MANU/SC/0032/1987 : (1988) 1 SCC 270.)

94. 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.

95. In Nityamoni Dasi v. Gokul Chandra Sen reported in MANU/WB/0534/1910 : (1911) 9 Ind Cas 210 (Cal), the Calcutta High Court observed:

... The decree of the Subordinate Judge must be set aside and the whole case retried, because as this is a suit for partition of joint property, a decree by consent amongst some only of the parties cannot possibly be maintain ed.....

96. In Vir Singh and Ors. v. Kharak Singh and Ors. reported in MANU/LA/0229/1924 : AIR 1925 Lah 280, all the proprietors had not assented to the compromise, Moti Sagar, J. observed:

...the alleged compromise not having been assented to by all the proprietors was clearly contrary to law and the Court was, therefore, fully justified in refusing to enforce it....

97. In Taraprasanna Sarkar and Anr. v. Kalikamohan Sarkar and Ors. reported in MANU/WB/0026/1923 : AIR 1924 Cal 80 Mookerjee and Rankin, JJ., held:

...There can be no compromise binding upon, all the parties to a partition suit until and unless all the parties have joined in the compromise:...

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Decided On: 29.03.2023

Prasanta Kumar Sahoo and Ors. Vs. Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Citation:  MANU/SC/0326/2023.

Read full Judgment here: Click here.

Print Page

Whether the daughter is entitled to get share in the ancestral property of her father If Law Gets Amended Before Passing Final Decree In Partition Suit?

 Before we proceed to discuss the dictum, as laid by this Court in Vineeta Sharma (supra) we must look into the decision of this Court in the case of Ganduri Koteshwaramma (supra). In Ganduri Koteshwaramma (supra) this Court, in paras 11, 12, 13 & 14, observed as under:

11. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 9-9-2005. The legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from 9-9-2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.

12. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to Sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before 20-12-2004; and (ii) where testamentary disposition of property has been made before 20-12-2004. Sub-section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been effected before 20-12-2004. For the purposes of new Section 6 it is explained that "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to Sub-section (5) of Section 6, for determining the non-applicability of the section, what is relevant is to find out whether the partition has been effected before 20-12-2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on 19-3-1999 and amended on 27-9-2003 deprives the Appellants of the benefits of the 2005 Amendment Act although final decree for partition has not yet been passed.

13. The legal position is settled that partition of a joint Hindu family can be effected by various modes, inter alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the court. In the present case, admittedly, the partition has not been effected before 20-12-2004 either by a registered instrument of partition or by a decree of the court. The only stage that has reached in the suit for partition filed by Respondent 1 is the determination of shares vide preliminary decree dated 19-3-1999 which came to be amended on 27-9-2003 and the receipt of the report of the Commissioner.

14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation. {Para 59}

60. Thus, in Ganduri Koteshwaramma (supra) this Court made the following things explicitly clear:

(i) The equal share given to the daughter of a coparcener governed by Hindu Mitakshara Law along with brothers is by way of a substantive right;

(ii) Though the substantive right is created on and from 9-9-2005, it relates back to the incidence of birth;

(iii) The substantive right would not be available only if the coparcenary property is disposed of or alienated including by any partition or testamentary disposition of property before 20-12-2004 and;

(iv) If there is disposition of a coparcenary property by any partition, such partition must be by execution of a Deed of Partition duly registered under the Registration Act, 1908 or effected by a decree of the Court.

(v) A preliminary decree of partition only determines the rights and interests of the parties. It is only by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, if there is any change in law necessitating determination of shares accordingly then, there would be no impediment for the Court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation.

20. Now, it is well settled that it is the duty of a court, whether it is trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. (See G.P. Singh: Interpretation of Statutes, 7th Edn., p. 406.) If, while a suit is pending, a law like the 1993 Act that the civil court shall not decide the suit, is passed, the civil court is bound to take judicial notice of the statute and hold that the suit -- even after its remand -- cannot be disposed of by it.

78. This Court in Vineeta Sharma (supra) clarified the entire position as follows:

107. Once the constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actual partition. The shares will have to be determined in changed scenario. The severance of status cannot come in the way to give effect to statutory provision and change by subsequent event. The statutory fiction of partition is far short of actual partition, it does not bring about the disruption of the joint family or that of coparcenary is a settled proposition of law. For the reasons mentioned above, we are also of the opinion that mere severance of status by way of filing a suit does not bring about the partition and till the date of the final decree, change in law, and changes due to the subsequent event can be taken into consideration.

Xxx xxx xxx

114. In the instant case, the question is different. What has been recognised as partition by the legislation Under Section 6, accordingly, rights are to be worked out. This Court consistently held in various decisions mentioned above that when the rights are subsequently conferred, the preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have no hesitation to reject the effect of statutory fiction of the proviso to Section 6 as discussed in Prakash v. Phulavati [MANU/SC/1241/2015 : (2016) 2 SCC 36: (2016) 1 SCC (Civ) 549] and Danamma [Danamma v. Amar, MANU/SC/0064/2018 : (2018) 3 SCC 343: (2018) 2 SCC (Civ) 385]. If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of time.

APPLICATION OF THE AFORESAID PRINCIPLES OF LAW TO THE FACTS OF THE PRESENT CASE

80. It is in the aforesaid background that 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 (supra), while passing the final decree. At the cost of repetition, we state that 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.

81. We do not find any merit in the submissions canvassed by Mr. Basant, learned Senior Counsel appearing for the Appellants that in a partition suit, the preliminary decree cannot be varied in the final decree proceedings, despite the amendment of the law governing the parties.

82.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. To put it straight, 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.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Decided On: 29.03.2023

Prasanta Kumar Sahoo and Ors. Vs. Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Citation:  MANU/SC/0326/2023.

Print Page

Whether testator after bequeathing his property absolutely to his wife prescribe how property is to be inherited after death of his wife?

  I am of the view that under the aforesaid Will, the predecessor in title of the parties had bequeathed the property to his wife. Such bequeath to the wife cannot be said to be a limited one. The use by the testator of the words "wholly and solely" negate, the bequeath to the wife being of a life interest or life estate only. The words used in the Will "my wife Sushila Chojar, would have the liberty to realize rents and collect gains from all sources concerned and utilize them according to her own wishes" cannot be read as limiting the right of the wife only to collecting the rents and not having the power to sell the property. The bequeath to the son and daughters is only "after death of my wife Sushila Chojar". It becomes further clear from Clause-4 that the bequeath to the son and daughters immediately on the demise of the testator was to be only in the event of the wife predeceasing the testator and not otherwise. Had the bequeath been intended to be to the son and daughters with the wife having only a life interest, Clause-4 would not have been inserted, as in that case the son and daughters would have a residuary interest in the property immediately on the demise of the testator. {Para 36}

37. The Supreme Court in Mauleshwar Mani Vs. Jagdish Prasad MANU/SC/0044/2002 : (2002) 2 SCC 468 on the basis of the words "Pane ki Musthak" and "Ba Akhtiar Intakal" used in a Will made in Hindi language held the bequeath to be of an unlimited and an absolute estate and not a limited one. The Division Bench of this Court in Judge Pal Khera Vs. Chand Rani Khera MANU/DE/1766/2012 also held the use of the words "absolutely" and "exclusively" in the Will to be indicative of bequeath of an absolute and unlimited estate and not a limited one.

38. The question which however arises is whether the predecessor in title of the parties having bequeathed the property wholly and solely to his wife could have provided for the manner in which the property was to be dealt with after the death of his wife. In my opinion, he could not have done so. A testator, once has bequeathed the property wholly and solely to his wife and the wife is alive on the date of the demise of the testator, the property becomes of the wife and any provision in the Will, of the manner in which the property is to be inherited after the demise of the wife, is of no avail. This is the reason that once the property has on the demise of the testator vested in the wife of the testator, the same in the absence of a Will of the wife of the testator, has to be dealt with in accordance with law of succession application to such wife. Reliance if any required in this regard, can be placed on Sadaram Suryanarayana Vs. Kalla Surya Kantham MANU/SC/0886/2010 : (2010) 13 SCC 147.

39. It is the admitted position that the mother of the parties died intestate. In accordance with the law of succession applicable to her, on her demise, the property would be inherited equally by her children i.e. by the plaintiff and the defendants No. 1&3.

 IN THE HIGH COURT OF DELHI

CSOS 2190/2011 & IA. No. 7476/2013

Decided On: 01.07.2014

Satish Kumar Chojar  Vs. Subhashni Chopra

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation:  MANU/DE/1460/2014.

Read full Judgment here: Click here

Print Page

How to appreciate evidence if plaintiff has failed to produce original will?

 Though the plaintiff as aforesaid has failed to give any reason for non-production of the original Will but from a reading of the entirety of the evidence including the lengthy cross-examination by the counsel for the defendants No. 1&3 of the plaintiff and of the replies given by the defendant No. 3 in her cross-examination, it is abundantly proved that the defendant No. 3 had much more access than the plaintiff to the parents. The possibility thus of the defendants No. 1&3 being in possession of the original Will and having suppressed the same cannot be ruled out. The plaintiff had no reason to suppress the same. It is not the case of the defendants that the father had put an endorsement of "cancelled" on the original, for the plaintiff to be interested in suppressing the original. Rather, it is the plea of the defendants No. 1&3 that the original was torn and destroyed and which they have failed to prove.{Para 33}

 IN THE HIGH COURT OF DELHI

CSOS 2190/2011 & IA. No. 7476/2013

Decided On: 01.07.2014

Satish Kumar Chojar  Vs. Subhashni Chopra

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation:  MANU/DE/1460/2014.

Read full Judgment here: Click here

Print Page

Whether the court can presume that will was revoked by destruction if original will is not available before the court?

 The fact however remains that the original Will has not come before the Court.{Para 22}

23. The plaintiff has also not led any evidence of the whereabouts of the original Will except for the suggestion in the cross-examination of the defendant No. 3 appearing as DW-1 that the defendant No. 3 had misplaced the original Will.

24. The question which arises is whether from the mere non-availability of the original Will, the revocation by destruction thereof has to be presumed.

25. Section 70 of the Indian Succession Act, 1925 provides that no Will shall be revoked otherwise than (i) by marriage; (ii) or by another Will; (iii) or by some writing declaring an intention to revoke the same and executed in the same manner as a Will; or (iv) by burning or tearing or otherwise destroying the same by the testator with the intention of revoking the same. Therefrom it follows that from a mere non-availability of the original Will, the presumption of revocation by destruction thereof, is not to be drawn. It has to be proved by the person who pleads such revocation by destruction that the Will was destroyed with the intention of revoking the same. To that effect, as aforesaid, no evidence has been led by the defendants No. 1&3.

26. The Supreme Court in Durga Prashad Vs. Debi Charan MANU/SC/0250/1978 : (1979) 1 SCC 61 held that where a Will has been properly executed and registered by the testator and not found at the time of death, the question whether the presumption that the testator had revoked the Will can be drawn or not will depend on the facts and circumstances of each case. It was further held that in our country, most of the people are not highly educated and do not in every case take the care of depositing the Will in the bank or with the Solicitors and as a result of which the possibility of the Will being stolen, lost or surreptitiously removed by interested persons cannot be excluded. It was yet further held that when there is no obvious reason or clear motive for the testator to revoke the Will and yet the Will is not found on the death of the testator, it may well be that the Will was misplaced or lost or was stolen by the interested persons. An interesting discussion in this respect is also to be found in the judgment of the Division Bench of the High Court of Orissa in Brundaban Chandra Vs. Ananta Narayan Singh Deo MANU/OR/0046/1956 : AIR 1956 Orissa 151 and in Salem Town Bazaar Street, Kannika Vs T.K. Sadasivam Chettiar MANU/TN/0322/1980.

27. In the light of the said legal position, the judgment of the Division Bench of this Court in Pt. Devi Charan Vs. Durga Pershad MANU/DE/0042/1967 : AIR 1967 Delhi 128 relied on by the counsel for the defendants no. 1 and 3 and in which case, in the facts and circumstances thereof, a presumption of destruction from non availability of the original was drawn, is of no avail.

 IN THE HIGH COURT OF DELHI

CSOS 2190/2011 & IA. No. 7476/2013

Decided On: 01.07.2014

Satish Kumar Chojar  Vs. Subhashni Chopra

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation:  MANU/DE/1460/2014.

Print Page

Whether partition suit for leasehold property is maintainable?

 The counsel for the respondents/defendants No. 2 & 3 L & DO has reiterated that both the Lajpat Nagar house as well as Khanna Market property are situated on leasehold land, leases of which are in the joint names of appellant/plaintiff and the predecessor of the respondents/defendants No. 1 and cannot be sub-divided. He however agrees that this Court besides in Inderjit Singh supra, has in Chiranji Lal Vs. Bhagwan Das MANU/DE/0663/1991 : AIR 1991 Delhi 325, Mohinder Singh Vs. Kartar Lal MANU/DE/1309/1997 & Ram Lal Sachdeva Vs. Sneh Sinha MANU/DE/0222/2000 : 83 (2000) DLT 141 held that partition of superstructure on the leasehold land is not prohibited by the term of the Lease Deed prohibiting sub-division. {Para 14}

 IN THE HIGH COURT OF DELHI

RFA 595/2004

Decided On: 04.10.2013

Madan Lal Vs. Kuldeep Kumar and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation: MANU/DE/4039/2013.

Print Page

What is the scope of the enquiry under Order XXI, Rules 97-101, CPC ?

  In the case on hand, the obstructionists do not claim title under any one of the parties to the litigation. They set up independent title in themselves. What was filed by Dildar-Un-Nissa Begum was only a suit for partition. In a suit for partition, the Civil Court cannot go into the question of title, unless the same is incidental to the fundamental premise of the claim.{Para 113}

139. Therefore, in fine, we hold on Issue No. (i) that the judgment and preliminary decree dated 28.06.1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners as well as the Government who have set up independent claims and that whatever was done in pursuance of the preliminary decree was an abuse of the process of law. We also hold on Issue No. (iv) that in an enquiry under Order XXI, Rules 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties (not claiming through or under the parties to the suit or their family members), who assert independent title in themselves. All that can be done in such cases at the stage of execution, is to find out prima facie whether the obstructionists/claim petitioners have a bona fide claim to title, independent of the rights of the parties to the partition suit. If they are found to have an independent claim to title, then the holder of the decree for partition cannot be allowed to defeat the rights of third parties in these proceedings.

In the Supreme Court of India

(Before V. Ramasubramanian and Pankaj Mithal, JJ.)

Civil Appeal Nos. of 2023

Trinity Infraventures Ltd. and Others Vs M.S. Murthy and Others.

Citation: 2023 SCC OnLine SC 738.

Read full Judgment here: Click here

Print Page

Can a claim against persons who hold title to the suit property but are strangers to the partition suit be decided in the same suit?

Take for instance a suit filed for partition by a member of the Hindu Undivided Family. If one of the coparceners or an alienee from such coparcener, claims independent title to one of the properties bought in his individual name, it may be open to the Court while trying the suit for partition to decide whether such a property belongs exclusively to the defendant. To this limited extent, examining the title of a party to the suit schedule property is permissible even in a suit for partition. 

{Para 114}

115. But in a simple suit for partition, the parties cannot assert title against strangers, even by impleading them as proforma respondents. The strangers who are impleaded in a partition suit, may have nothing to say about the claim to partition. But they may have a claim to title to the property and such a claim cannot be decided in a partition suit.

 120. Therefore, we are of the view that the preliminary decree dated 28.06.1963 could not have determined the claim to title made by the legal heirs seeking partition, as against third parties. Any finding rendered in the preliminary decree, that the properties were Mathruka properties liable to be partitioned, was only incidental to the claim of the legal heirs and such a finding will not be determinative of their title to property as against third parties.

In the Supreme Court of India

(Before V. Ramasubramanian and Pankaj Mithal, JJ.)

Civil Appeal Nos. of 2023

Trinity Infraventures Ltd. and Others Vs M.S. Murthy and Others.

Citation: 2023 SCC OnLine SC 738.

Read full Judgment here: Click here

Print Page

Can the executing court decide questions of title raised by third parties who assert independent ownership under Order XXI, Rules 97-101 of the Civil Procedure Code (CPC)?

Technically the High Court may not be right, in the true legal sense, in branding the preliminary decree as vitiated by fraud. But the fact remains that insofar as third parties to the family of Khurshid Jah (and those claiming under them) are concerned, the preliminary decree is nothing more than a mere paper, as those third parties have had nothing to do with the claim for partition, though they have had a legitimate claim to title to the properties, described in the suit schedule. Therefore, we would only say and hold on question Nos. (i) and (iv) that the judgment and preliminary decree dated 28.06.1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners and the Government who have set up independent claims. We also hold that in an enquiry under Order XXI, Rules 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties, who assert independent title in themselves. Marina Beach (in Chennai) or Hussain Sagar (in Hyderabad) or India Gate (in New Delhi) cannot be included as one of the items of properties in the Plaint Schedule, in a suit for partition between the members of a family and questions of title to these properties cannot be allowed to be adjudicated in the claim petitions under Order XXI, Rules 97-101, CPC.

{Para 126}

139. Therefore, in fine, we hold on Issue No. (i) that the judgment and preliminary decree dated 28.06.1963, though may not be vitiated by fraud, are certainly not binding upon third parties like the claim petitioners as well as the Government who have set up independent claims and that whatever was done in pursuance of the preliminary decree was an abuse of the process of law. We also hold on Issue No. (iv) that in an enquiry under Order XXI, Rules 97 to 101, CPC, the Executing Court cannot decide questions of title set up by third parties (not claiming through or under the parties to the suit or their family members), who assert independent title in themselves. All that can be done in such cases at the stage of execution, is to find out prima facie whether the obstructionists/claim petitioners have a bona fide claim to title, independent of the rights of the parties to the partition suit. If they are found to have an independent claim to title, then the holder of the decree for partition cannot be allowed to defeat the rights of third parties in these proceedings.

In the Supreme Court of India

(Before V. Ramasubramanian and Pankaj Mithal, JJ.)

Civil Appeal Nos. of 2023

Trinity Infraventures Ltd. and Others Vs M.S. Murthy and Others.

Citation: 2023 SCC OnLine SC 738.

Read full Judgment here: Click here

Print Page

Can a party holding a preliminary decree of a partition suit acquire title to a specific portion of a particular property and can transfer it to third party?

Therefore, the question of specific immovable properties or specifically identified portions of immovable properties getting allotted to any person merely holding a preliminary decree with respect to an undivided share does not arise. A preliminary decree in a suit for partition merely declares the shares that the parties are entitled to in any of the properties included in the plaint schedule and liable to partition. On the basis of a mere declaration of the rights that take place under the preliminary decree, the parties cannot trade in, on specific items of properties or specific portions of suit schedule properties. Since there are three stages in a partition suit, namely (i) passing of a preliminary decree in terms of Order XX Rule 18(2); (ii) appointment of a Commissioner and passing of a final decree in terms of Order XXVI Rule 14 (3); and (iii) taking possession in execution of such decree under Order XXI Rule 35, no party to a suit for partition, even by way of compromise, can acquire any title to any specific item of property or any particular portion of a specific property, if such a compromise is struck only with a few parties to the suit. {Para 195}

In the Supreme Court of India

(Before V. Ramasubramanian and Pankaj Mithal, JJ.)

Civil Appeal Nos. of 2023

Trinity Infraventures Ltd. and Others Vs M.S. Murthy and Others.

Citation: 2023 SCC OnLine SC 738.

Read full Judgment here: Click here

Print Page

Whether the bank can accept a final decree in a partition suit as a document of title?

 The second difficulty that the Asset Reconstruction Company has, is that six different companies created an equitable mortgage by deposit of title deeds. As per the averment contained in Para 2 of I.A. No. 110290 of 2022, the deposit of title deeds happened on 25.03.2009. What is said to have been deposited are the certified copies of the final decree in Application No. 517 of 1998 in CS No. 14 of 1958 dated 24.04.1998. {Para 218}

 219. We do not know how a final decree in a partition suit and that too in a notorious suit like CS No. 14 of 1958 could have been taken to be a document of title which can be accepted by way of equitable mortgage. In any case, the deposit of title deeds is said to have taken place on 25.03.2009. By this time, the order of the learned Single Judge (L. Narasimha Reddy, J.) dated 26.10.2004 allowing the claims of the obstructionists had come into existence. Though the said order of the learned Single Judge dated 26.10.2004 was set aside by the Division Bench by an order dated 23.06.2006, the said order of the Division Bench had become the subject matter of the civil appeals even at that time. These civil appeals were eventually allowed by this Court by an order dated 05.03.2014. We do not know how during this interregnum period, the Banks could have accepted this property as security, despite the same being the subject matter of a serious long drawn litigation.

In the Supreme Court of India

(Before V. Ramasubramanian and Pankaj Mithal, JJ.)

Civil Appeal Nos. of 2023

Trinity Infraventures Ltd. and Others Vs M.S. Murthy and Others.

Citation: 2023 SCC OnLine SC 738.

Print Page

Can a court issue a partition decree with the consent of only some of the coparceners?

 

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.

{Para 94}

95. In Nityamoni Dasi v. Gokul Chandra Sen reported in MANU/WB/0534/1910 : (1911) 9 Ind Cas 210 (Cal), the Calcutta High Court observed:

... The decree of the Subordinate Judge must be set aside and the whole case retried, because as this is a suit for partition of joint property, a decree by consent amongst some only of the parties cannot possibly be maintain ed.....

96. In Vir Singh and Ors. v. Kharak Singh and Ors. reported in MANU/LA/0229/1924 : AIR 1925 Lah 280, all the proprietors had not assented to the compromise, Moti Sagar, J. observed:

...the alleged compromise not having been assented to by all the proprietors was clearly contrary to law and the Court was, therefore, fully justified in refusing to enforce it....

97. In Taraprasanna Sarkar and Anr. v. Kalikamohan Sarkar and Ors. reported in MANU/WB/0026/1923 : AIR 1924 Cal 80 Mookerjee and Rankin, JJ., held:

...There can be no compromise binding upon, all the parties to a partition suit until and unless all the parties have joined in the compromise:...

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

Read full Judgment here: Click here

Print Page

Can the court refuse to vary a preliminary decree of partition in final decree proceedings if there is a change in law during those proceedings?

The decision of Vineeta Sharma (supra) also highlights that a change in law during the pendency of an appeal must be considered and appropriately applied. This Court relied upon United Bank of India, Calcutta v. Abhijit Tea Company Private Limited and Ors. reported in MANU/SC/0551/2000 : (2000) 7 SCC 357, wherein, it was held that:

20. Now, it is well settled that it is the duty of a court, whether it is trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. (See G.P. Singh: Interpretation of Statutes, 7th Edn., p. 406.) If, while a suit is pending, a law like the 1993 Act that the civil court shall not decide the suit, is passed, the civil court is bound to take judicial notice of the statute and hold that the suit -- even after its remand -- cannot be disposed of by it. {Para 77}

78. This Court in Vineeta Sharma (supra) clarified the entire position as follows:

107. Once the constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actual partition. The shares will have to be determined in changed scenario. The severance of status cannot come in the way to give effect to statutory provision and change by subsequent event. The statutory fiction of partition is far short of actual partition, it does not bring about the disruption of the joint family or that of coparcenary is a settled proposition of law. For the reasons mentioned above, we are also of the opinion that mere severance of status by way of filing a suit does not bring about the partition and till the date of the final decree, change in law, and changes due to the subsequent event can be taken into consideration.

Xxx xxx xxx

114. In the instant case, the question is different. What has been recognised as partition by the legislation Under Section 6, accordingly, rights are to be worked out. This Court consistently held in various decisions mentioned above that when the rights are subsequently conferred, the preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have no hesitation to reject the effect of statutory fiction of the proviso to Section 6 as discussed in Prakash v. Phulavati [MANU/SC/1241/2015 : (2016) 2 SCC 36: (2016) 1 SCC (Civ) 549] and Danamma [Danamma v. Amar, MANU/SC/0064/2018 : (2018) 3 SCC 343: (2018) 2 SCC (Civ) 385]. If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of time.

APPLICATION OF THE AFORESAID PRINCIPLES OF LAW TO THE FACTS OF THE PRESENT CASE

79. Let us assume for the moment that the Trial Court would have decreed the suit in favour of the Plaintiff i.e., the daughter giving her 1/3rd share uniformly in all the properties including the ancestral properties. It could have been argued that the Trial Court could not have done so, having regard to the position of law, prevailing at the relevant point of time. However, after the decision of this Court in the case of Vineeta Sharma (supra) such allotment of share would be in accordance with law. 

80. It is in the aforesaid background that 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 (supra), while passing the final decree. At the cost of repetition, we state that 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.

81. We do not find any merit in the submissions canvassed by Mr. Basant, learned Senior Counsel appearing for the Appellants that in a partition suit, the preliminary decree cannot be varied in the final decree proceedings, despite the amendment of the law governing the parties.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023

Print Page