Both the captioned appeals are at the instance of the legal representatives and heirs of the original defendant No 1 (Late Shri Prafulla Sahoo S/o Kumar Sahoo) and are directed against the judgment, order and decree passed by a Division Bench of the High Court of Orissa at Cuttack dated 5.05.2011 in AHO No 133 of 2000 by which the Division Bench of the High Court dismissed the Letters Patent Appeal filed by the appellants herein thereby affirming the judgment and decree of partition passed by the Trial Court in the Title Suit No 348 of 1980 instituted by the original plaintiff (Respondent No 1 herein) and on the other hand allowed the cross-objections filed by 2 the Original Defendant No 2, thereby setting aside and declaring the compromise recorded by the First Appellate Court entered into between the Late Prafulla Sahoo and his sister i.e., the Defendant No 2 in the suit to be invalid. For the sake of convenience, the relationship of the parties will appear from the following genealogical table, drawn as under: – Hadibandhu Dhruba Kumar Ananta Rohita Charulata Santilata (Dead) Prafulla (Dead) (Plaintiff) (Defendant No.2) (Defendant No.1) (Respondent No.1) (Respondent No.2) (Appellant) 5.
The Respondent No 1 (herein Original Plaintiff) prayed for the following reliefs in the title suit No 348 of 1980 referred to above: “ (i) Let a preliminary decree be passed for partition in respect of the plaintiff ’ s 1/3 share in schedule ‘A’ to ‘F’ and the plaintiff be put in specific possession of the same on a separate allotment being curved out in final decree proceeding by appointment of Civil Court Survey knowing commissioner and a decree for mesne profit be passed against Defendant No 1 from 1977 till the date of the suit and from the date of suit till the decree is made final and the share of Defendant No 1 in the suit properties be charged for payment of the same. (iv) Let a decree be passed for such other relief that the plaintiff is ultimately found entitled in his favour against the Defendants. Khata No 264 Plot No 1090 Ac 0.012 dec. 0.89 dec Khata No -do- Plot No 98, Ac. Khata No 8 Plot No 96 Ac. 2850/-) SCHEDULE -‘C’ District- Cuttack. Cuttack, Mouza- Rajahans, Khata No 855, Plot No 316. 0.02 dec Plot
No 548 Ac. 720/-) SCHEDULE -‘D’ Mouza- Safipur, P.S. SCHEDULE -‘E’ Mouza- Dian Rajhans Khata No 1 Plot No 73 Ac. 93 dec Plot No 180 Ac. 22
dec Plot No 181 Ac. 0.35
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dec. Plot No 132 Ac. 0.35 dec. 450/- 5 Khata No 19 Plot No 75 Ac. 0.31 dec Plot No 64 Ac. 350/-
Khata No 21 Plot No 145 Ac. ” The Trial Court framed the following issues: 6 “(1) Is the suit maintainable in law? (2) Are the plaintiff and Defendant No 2 members of the family of Defendant No. 1 in view of introduction of Urban Land Ceiling & Regulation Act, 1976, and can the plaintiff maintain a suit for partition of the suit property? (4) What are the respective shares of the plaintiff, Defendant No 1 and Defendant No 2 in the suit property? (6) What are the shares of plaintiff and Defendant No 2 in the mesne profit and from what date they are entitled to the same? The said decree is being challenged by Defendant No 1.” The suit between the parties was adjudicated and vide the judgment and order dated 30.12.1986 the Civil Judge drew a preliminary decree as under: “ ORDER The suit is decreed preliminarily on contest against defendant No 1 with costs an D-2 without cost. Defendant No 1 is entitled to 10 annas 8 pies (2/3 ) and 1/3 share in ancestral and self acquired properties respectively and superstructure thereon of Late Kumar Charan Sahu and mense profits thereof. 2 herein) (iv) the Defendant No 1 (the Plaintiff herein) was held entitled to 4/6 share in the ancestral properties and 1/3 share in the self-acquired properties of Late Shri Kumar Sahoo including the mesne profits. It appears from the materials on record that while the first appeal referred to above was pending before the High Court, the Defendant No 2 (Respondent No 2 herein) entered into a settlement with the Defendant No.1 thereby relinquishing her share in accordance with the decree passed by the Trial Court in lieu of consideration of Rs. In this appeal, it is first contended that certain properties having been given to the daughters by the father during his life time and certain properties having been gifted to them at the time of their marriage and certain other properties having been purchased by the father in the names of the two daughters, namely plaintiff and Defendant No 2, they are not entitled to any separate share after death of the father. The learned counsel appearing for the appellant then contended that during pendency of the appeal, a compromise has been effected between the present appellant and Respondent No 2, wherein Respondent No.2 has given up her share in favour of Defendant No 1. The amount which is not yet kept in fixed deposit shall also be kept in fixed deposit in similar manner so that the amount can be disbursed in accordance with the direction to be made in the final decree after the final decree proceedings are over. shall be determined by the trial court and if any deposit is required to be made by the receiver, the same shall be made in the trial court which shall make similar arrangements regarding fixed deposits. In the Letters Patent Appeal filed by the Appellants herein, the Court addressed itself on the following points of determination: “(i) whether the findings and reasons recorded on the contentious issues by the learned trial judge are either erroneous or error in law warranting interference by this Court in exercise of its power?
The Division Bench of the High Court vide its impugned judgment and order dated 5.05.2011 dismissed the appeal i.e., the AHO No 133 of 2000 filed by the 11 Defendant No 1 (Appellant herein) and allowed the cross appeal filed by the Defendant No. Basant, the learned Senior Counsel appearing for the appellants vehemently submitted that the courts below committed a serious error in recording a finding that the properties in Schedule ‘ J ’ (1 to 8 properties) were self-acquired properties of Late Shri Kumar Sahoo. Basant, the J series properties (1 to 8 properties) were bought by Late Shri Kumar Sahoo with the aid of the income derived from the ancestral properties and in such circumstances, the J series (1 to 8 properties) would form part of the same nucleus of existing ancestral properties which could now be said to have been devolved on the Plaintiff and the Defendants as ancestral properties. He further submitted that assuming for the moment that the 2005 Amendment has altered the rights of the parties, more particularly, the sisters as co-parceners, however, in view of the settlement deed, the rights of the Respondent No 2 (herein Original Defendant No 2) could be said to have been extinguished and transferred to the Appellants. He further submitted that in accordance with the proviso to sub-section (1) of Section 6 of the Act 1956 (as amended on 9.09.2005) no disposition or alienation including partition or testamentary disposition of property which took place before 20.12.2004 shall be invalidated or set aside on account of the 2005 Amendment. It was argued that in case Parliament intended that the incident of birth prior to 2005 would be sufficient to confer the status of a coparcener, Parliament would need not have enacted the proviso to Section 6(1). Jagrani (Smt) and Another reported in (2003) 11 SCC 372 at para 7-8 and (v) Pushpa Devi Bhagat (Dead) through LR. Sunita Rao, the learned counsel appearing for the Respondent No 1 (Original Plaintiff) vehemently submitted that no error not to speak of any error of law could be said to have been committed by the High Court in passing the impugned judgment and decree. She submitted that in view of the decision of this Court, in the case of Ganduri Koteshwaramma and Another v. The learned counsel further submitted that in view of the amendment of 2005 to Section 6 of the Act 1956 and the decision of this Court in case of Vineeta Sharma (supra) the daughters are entitled to equal share with that of the son in the coparcenary properties.
1 and 2, the learned counsel submitted that the Plaintiff was never a part of the compromise. On the issue of disbursement of the receivership amount deposited in the Court, the counsel submitted that the Plaintiff is 84 years old and has filed multiple IAs being IA No 44977 of 2013, IA
No 127171 of 2019 and IA No 190628 of 2022 resply in the present proceedings for disbursement of her 1/3 share in the amount already deposited by the receiver. Obtained permission for Electric substation of 500 KVA for suit property by forging signature of plaintiff and Defendant 2 (in 2016 16 whereas Defendant no. Chitambaresh, the learned Senior Counsel addressed himself on four issues: (i) Whether the properties as scheduled in the plaint are ancestral or self- acquired properties of the predecessor-in-interest of the plaintiff and defendants 1 and 2 and what share the parties are entitled to? Relying on the decision of this Court, in the case of Ganduri Koteshwaramma (supra) he submitted that even if no appeal has been filed by the Plaintiff and the Defendant, the shares will have to be determined in accordance with the amendment and the law as laid down in Vineeta Sharma (supra). He would submit that the cross- objector is entitled under Order XLI Rule 22 of the CPC read with Order XLIII Rule 1- A (2) of the CPC to contend in his or her cross-appeal that the alleged settlement deed or agreement should not have been reckoned as a valid compromise and recorded under Order XXIII Rule 3 of the CPC.
In other words, whether the High Court was right in allowing the cross-appeal filed by the Original Defendant No 2 (Respondent No 2 herein). Under the Mitakshara School of Hindu Law, woman in a joint Hindu family had merely a right of maintenance/ sustenance but had no right of inheritance to property. So far as the Dayabhaga School was concerned, there was no concept of a coparcenary property and every member of a Hindu family would hold property in his/her own right and was entitled to dispose of the property as he/she deems fit either by gift or Will.
The earliest legislation with regard to right of female inheritance was made in 1929 called the Hindu Law of Inheritance Act, 1929. The erstwhile Section 6 of the Principal Act (pre-amended Section 6) inter alia provided that the interest of a coparcener in the coparcenary property if not disposed of by Will under Section 30 of the Principal Act, would devolve in terms of pre-amended Section 6. The daughter would only get a share as one of the heirs on the death of coparcener, out of the share of the deceased in the coparcenary property on notional partition, in view of proviso to pre-amended Section 8 of the Principal Act.
The Commission noted the fact that in various States such as Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka, attempts had already been made to bring about the gender equality. One more recommendation of the Law Commission was to do away with the erstwhile Section 23 of the Principal Act which provided that a woman would have a right to stay in the family house as a member of the joint Hindu Family but unlike a male, she would have no right to demand a partition of the family house. On 20th December, 2004, the Hindu Succession Amendment Bill 2004 was introduced in the Rajyasabha, inter alia, seeking to amend the erstwhile Section 6 and doing away/omitting the erstwhile Section 23 of the Principal Act. Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognizes the rule of devolution by survivorship among the members of the coparcenary.
It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. The Standing Committee after recording the historical growth of Hindu Law and Gender inequality with regard to the property right practiced against a female Hindu suggested that proviso 1 to proposed Section 6(1) of the Bill which sought to exclude the daughter married before the commencement of the Amendment Act from the benefit of the Act should be done away with. Before averting to the rival submissions canvassed on either side, it would be apposite to reproduce the erstwhile Section 6 as appearing in the Principal Act and the amended Section 6 of the Principal Act, as substituted by Section 3 of the Amendment Act for the sake of convenience. Explanation 1 – For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. — (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, (a) by birth become a coparcener in her own right in the same manner as the son; 25 (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,– (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre-deceased son or of a pre- deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre- deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. 26 (4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great- grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub- section shall affect — (a) the right of any creditor to proceed against the son, grandson or great- grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
” 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). 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. 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. 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. ” 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.
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. In this background, this Court took the view that when a daughter, claiming and demanding a share in the coparcenary property is alive on 9.09.2005, she would be entitled to the benefit of the amended provision irrespective of the effect whether a coparcener had died before the commencement of the Amendment Act. In Vineeta Sharma (supra) (paras 60, 68, 69 and 129), the Court held that for the applicability of substituted Section 6 of the Hindu Succession Act, 1956, it is not necessary that the male coparcener must be alive on the date of commencement of the Amendment Act, 2005 (i.e., 9.9.2005). Hence, it follows that the substituted Section 6 of the Hindu Succession Act, 1956 is not confined to cases where male coparcener dies after the commencement of the Amendment Act, 2005. Section 6(1)(a) makes daughter by birth a coparcener “ in her own right ” and “ in the same manner as the son ”. The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son. According to the Mitakshara coparcenary Hindu law, as administered which is recognised in Section 6(1), it is not necessary that there should be a living, coparcener or father as on the date of the amendment to whom the daughter would succeed.
In case living coparcener dies after 9-9-2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted Section 6(3).” (Emphasis supplied) Explaining sub-section (3) of substituted Section 6, the Court observed in paragraph 66 as under: “ 66. (B) The coparcenary must exist on 9.9.2005, i.e., the date of commencement of the Amendment Act, 2005. As noted earlier, sub-section (5) of substituted Section 6 of the Hindu Succession Act, 1956 provides that nothing contained in the substituted Section 6 shall apply to a partition, which has been effected before 20th December, 2004 (i.e., date on which the Bill corresponding to the Amendment Act, 2005 was presented in the Rajya Sabha).
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Explanation to the substituted Section 6 provides that for the purposes of Section 6 “partition” means (i) any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908), or (ii) any partition effected by a decree of a court. The right of the wife of a coparcener to claim her right in property is in no way taken away.” (Emphasis supplied) (B) As noted earlier, under the law pertaining to partition as existing prior to the Amendment Act, 2005, if there would be a partition of coparcenary property between father (F) and sons (S1 and S2) then the wife (W) of father (F) as well as widowed mother (M) of father (F) would get one share equal share to that of a son (S1 or S2). Thus, 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. The Court held that even though filing of partition suit brings about severance of status of jointness, such legislative amendment or subsequent event will have to be taken into consideration and given effect to in passing the final decree in the partition suit. ” (Emphasis supplied) (D) Prior to the Amendment Act, 2005, partition in joint Hindu Family could be made by oral partition or oral family settlement/family arrangement. The intendment of amended Section 6 is to ensure that daughters are not deprived of their rights of obtaining share on becoming coparcener and claiming a partition of the coparcenary property by setting up the frivolous defence of oral partition and/or recorded in the unregistered memorandum of partition.
In view of change of provisions of Section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. When such a defence is taken, the court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be 37 entertained, not otherwise. (Reference: Article titled ‘Changing Dimensions of Hindu Coparcenary and Section 6, Hindu Succession Act, 1956 by Justice Satya Poot Mehrotra, Former Judge Allahabad High Court.) The reference was ultimately answered in paras 137.1 to 137.5 resply as under: “ 137.1.
The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. 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. Phulavati [(2016) 2 SCC 36 : (2016) 1 SCC (Civ) 549] and Danamma [Danamma v. 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 1/3 share uniformly in all the properties including the ancestral properties. As the law governing the parties has been amended before the conclusion of the final decree proceedings, the party benefitted by such amendment 40 (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. We shall now proceed to answer the issue No 2 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 It is only after a lapse of ten years that during the pendency of the appeal filed by the Appellants herein before the Division Bench of the High Court that the Defendant No 2 thought fit to file cross-appeal, challenging the alleged compromise.
— (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. — Such cross- objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. A cross-appeal is the exercise of substantive right of appeal and only the procedure varies. Our attention was also drawn to the provisions of Order XLIII of Rule 1-A (2) of the CPC. Right to challenge non-appealable orders in appeal against decrees. Section 96(3) of the Code says that no appeal shall lie from a decree passed by the Court with the consent of the parties. But after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3-A of Order 23. From the copy of the petition which was filed on February 27, 1991 it appears that the terms and conditions of settlement and agreement had been mentioned saying that both parties had entered into a compromise because of which the plaintiff-appellant had thereafter no connection with the disputed land and defendant-respondent shall be deemed to be in possession and the owner of the said disputed land. The order on face of it purported to dismiss the suit of the plaintiff on basis of the terms and conditions mentioned in the petition of compromise. 276, para 10) “ Under Rule 3 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.
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. 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 45 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. 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 t he Code.” (Emphasis supplied) 90.
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. 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.” The appellants had thus the right to avail either the remedy of appeal in terms of Order 43 Rule 1A CPC or by way of an application before the court granting decree. The Variance noted is as follows- (a) The compromise petition takes in consideration yet another property already purchased by Defendant No 2 by her own income (Schedule B property) which was not a part of compromise agreement.
The species of suit property, which was given/provided to Defendant no.2 in clause 3 (page 141) of agreement was changed to will be allotted to her in final decree proceeding. 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. To constitute an adjustment, the agreement or compromise must itself be capable of being embodied in a decree. In a suit for partition of joint property, a decree by consent amongst some only of the parties cannot be maintained. Kalikamohan Sarkar and Others reported in 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 :…” 98. Therefore, it is urged that the same is not legal compromise as provided under Order 23, Rule 3, CPC and on behalf of defendant no.2 her advocate could not have signed the compromise petition as she has not executed special ‘vakalatnama’ giving the authorization in favour of her lawyer to compromise the matter between defendant no.1 and 2 In the First Appeal. In support of this contention, learned Single Judge had rightly placed reliance upon the decisions of the Hon’ble Supreme Court In the case of Gurpreet Singh v. Defendant no.1 with a view to deprive allotment of share assigned in favour of defendant no.2 by the trial court in respect of the suit schedule properties in the absence of signing the compromise petition by defendant no.2 and there is no special ‘vakalatnama’ executed in favour of her lawyer, the said compromise petition is unlawful and the same could not have been accepted by the first appellate court In the Impugned judgment and modified the trial court judgment. Having set 50 aside the said compromise, as recorded in the impugned judgment of the First Appellate Court, the trial court judgment is restored with regard to the share assigned by him in favour in of defendant no.2 In respect of suit schedule properties. The law of agency may not strictly apply to the client- lawyer’s relationship as lawyers or agents, lawyers have certain authority and certain duties.
As part of those duties, lawyers assume all the traditional duties 51 that agents owe to their principals and, thus, have to respect the client’s autonomy to make decisions at a minimum, as to the objectives of the representation. In the Preamble to Chapter II, the BCI Rules provide as follows: “An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Section II of the said Chapter II provides for duties of an advocate towards his client. It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other.
An advocate shall not act on the instructions of any person other than his client or his authorised agent.” While Rule 15 mandates that the advocate must uphold the interest of his clients by fair and honourable means without regard to any unpleasant consequences to himself or any other. Therefore, the BCI Rules make it necessary that despite the specific legal stream of practice, seniority at the Bar or designation of an advocate as a Senior Advocate, the ethical duty and the professional standards insofar as making concessions before the Court remain the same. While the BCI Rules and the Act, do not draw any exception to the necessity of an advocate obtaining instructions before making any concession on behalf of the client before the court, this Court in Periyar & Pareekanni Rubber Ltd.
Secondly, the implied authority can always be countermanded by the express directions of the client.
Case Title: PRASANTA KUMAR SAHOO Vs. CHARULATA SAHU . (2023 INSC 319)
Case Number: C.A. No.-002913-002915 / 2018
