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Raja Damara Lakshmikanthayamma Row Bahadur Vs. Omada Rajaha Raja Damara Kumara Thimma Nayanim Bahadur Varu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1895)5MLJ145
AppellantRaja Damara Lakshmikanthayamma Row Bahadur
RespondentOmada Rajaha Raja Damara Kumara Thimma Nayanim Bahadur Varu and ors.
Cases ReferredAppasami v. Manikam I.L.R.
Excerpt:
- - we think, not, since it is quite evident that no such reliefs could have been decreed by the court bad the parties proceeded to trial......the reliefs decreed by the judge in clauses 2. 3, 8, 9, 11, 12, 13 and 14,. do not relate to the suit. clauses 8 and 14 contain provisions which are impossible of execution in any decree.6. the next question is whether the decree should stand with reference to the remaining clauses. we are referred to the decision in fajaleh ali miah v. kamaruddin bhuya i.l.r. (1886) c. 17 in which apparently it was held that when a compromise embodied a new contract much wider in its scope than the mere adjustment of the claim in suit, the court could only record it and leave the parties to proceed with the case as they may choose. we observe however that that case was not argued, and with all respect to the learned judges it appears to us that this view fails to give effect to the directions in.....
Judgment:

1. This suit was brought for a partition of the Kalahasti Zemindari and was based on the assumption that the Zemindari was partible. The action was compromised by the parties and a razinamah was presented to the District Court in order that it might be recorded and a decree passed thereon in accordance with the provisions of Section 375 of the Civil Procedure Code. The preamble to the terms of the compromise expressly lays down that the Zemindari is impartible and has always descended and mast always descend according to the rule of primogeiture thus negativing the basis of the claim on which the suit is brought. Before the District Judge it was objected that some of the stipulations of the compromise do not relate to the suit and therefore should not have been embodied in the decree. The judge however decided that all the stipulations should be embodied and passed a decree accordingly.

2. Two questions arise for decision (1) Whether the stipulations in the razinamah ' relate to the suit'? and (2) Whether any and what decree should be passed?

3. The suit beingfor partition, it is contended by the respondents that the whole family estate and its apportionment is the subject matter of the suit and hence that any decree which relates to the family estate can be properly described as one which relates to the suit. It is also pointed out that part of the property may follow the rule of primogeniture white the rest may be divisible under the Mitakshara law.

4. The suit being for partition it is clear that all the clauses of the compromise which relate to the division of property can be embodied in the decree. But there are other stipulations which are based upon the assumption that the Zemindari is impartible' and that the junior members of the family are entitled to allow-ances for their maintenance (Clauses 1 and 2 of the razinamah); Clause 8 lays down rules for future reigning Zemindars making adoption in the event of having no issue and also regulates the course of descent, while Clauses 10 to 12 give general rights as to grazing and felling timber to all members of the family. Can it be saide that stipulations such as these relate to the suit i.e., to a suit for partition? We think, not, since it is quite evident that no such reliefs could have been decreed by the Court bad the parties proceeded to trial. It was reasonable to hold that the words 'so far as it relates to the suit' in Section 375 must be restricted to relief which the court could have given in the suit, and will not embra ce reliefs which could only have been given in a suit based upon a different cause of action.

5. In this view we are constrained to hold that the reliefs decreed by the judge in Clauses 2. 3, 8, 9, 11, 12, 13 and 14,. do not relate to the suit. Clauses 8 and 14 contain provisions which are impossible of execution in any decree.

6. The next question is whether the decree should stand with reference to the remaining clauses. We are referred to the decision in Fajaleh Ali Miah v. Kamaruddin Bhuya I.L.R. (1886) C. 17 in which apparently it was held that when a compromise embodied a new contract much wider in its scope than the mere adjustment of the claim in suit, the court could only record it and leave the parties to proceed with the case as they may choose. We observe however that that case was not argued, and with all respect to the learned judges it appears to us that this view fails to give effect to the directions in Section 375, that 'the Court shall pass a decree in accordance therewith so far as it relates to the suit.' We observe that Scott, J. in the case of Ruttonsey Lalji v. Pooribai I.L.R. (1883) B. 304 followed this view and directed that a decree do issue in accordance with the agreement so far as it related to the subject matter and settlement of the suit, but excluding the arrangement made as to the matter outside the scope of the suit. This case was approved and followed in Appasami v. Manikam I.L.R. (1885) M. 103

7. We have no doubt that an appeal lies since a decree under Section 375 is only final, so far as it relates to so much of the subject matter of the suit as is dealt with by the compromise. We have held that the decree of the judge has dealt with matters extraneous to the suit.

8. The appeal must be allowed and the decree modified by striking out the directions given in Clauses 2, 3, 8, 9, 11, 12, 13 and 14 of the decree. As the appellant has been only partially successful, we direct that he be allowed half the costs from respondents 1 and 2; 7th respondent should bear his own costs.


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