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Amaravathamma Vs. Chinna Venkat Reddi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Case NumberCivil Revn. Petn. No. 1210 of 1946
Judge
Reported inAIR1950Mad334
ActsCode of Civil Procedure (CPC) , 1908 - Order 32, Rule 7
AppellantAmaravathamma
RespondentChinna Venkat Reddi and ors.
Appellant AdvocateS.V. Venugopalachari and ;C.V. Dhikshitalu, Advs.
Respondent AdvocateK.S. Desikan, Adv.
DispositionPetition dismissed
Cases ReferredIn Manoharlal v. Jadunath Sing
Excerpt:
family - revival - order 32 rule 7 of code of civil procedure, 1908 - suit for partition instituted in court of subordinate judge - matter in issue in previous suit tried and preliminary decree passed in suit of 1942 - petitioner not entitled to seek remedy of reopening suit where questions involved had been raised and disposed in suit of 1942 on ground that she was not allowed to have other properties mentioned in preliminary decree brought in for partition - no necessity or justification for court for reviving earlier suit of 1940 - petition for revival of suit not maintainable. - .....was her husband's minor brother and defendant 3, the mother of defendant 1. on 6th august 1940 a compromise decree was passed but defendant 2 being a minor the court sanctioned the compromise. it was found later that the required certificate by the advocate as to the reasonableness of the compromise was not filed. a suit was filed on behalf of defendant 2 by his next friend for setting aside the compromise decree which is o. s. no. 44 of 1942 on the file of the same court. in the plaint in that suit the present defendant 2 prayed for a declaration that the compromise decree in o. s. no. 63 of 1940 was invalid, inoperative and void and not binding on the plaintiff or on his interest in the joint family properties and for an injunction restraining defendant 2 from interfering with the.....
Judgment:

Krishnaswami Nayudu, J.

1. The petitioner is the plaintiff in O. S. No. 53 of 1940 which was a suit for partition instituted in the Subordinate Judge's Court of Chittoor. The petitioner is the widow of one Anjaneyalu Reddi. She claimed one-third share of the joint family properties against her father-in-law defendant 1, defendant 2 who was her husband's minor brother and defendant 3, the mother of defendant 1. On 6th August 1940 a compromise decree was passed but defendant 2 being a minor the Court sanctioned the compromise. It was found later that the required certificate by the advocate as to the reasonableness of the compromise was not filed. A suit was filed on behalf of defendant 2 by his next friend for setting aside the compromise decree which is O. S. no. 44 of 1942 on the file of the same Court. In the plaint in that suit the present defendant 2 prayed for a declaration that the compromise decree in O. S. No. 63 of 1940 was invalid, inoperative and void and not binding on the plaintiff or on his interest in the joint family properties and for an injunction restraining defendant 2 from interfering with the plaintiff's possession and enjoyment of the said properties, for declaring defendant 2's right to a half-share to the immovable properties and for division of the same by metes and bounds and for other reliefs. In the plaint defendant 2 alleged that the decree was not binding on him and moreover the plaintiff in O. S. no. 53 of 1940 was given a share to which she was not entitled by virtue of the Hindu Women's Rights to Property Act. To this plaint the plaintiff as defendant 2 filed a written statement stating among others that the insurance policy amount claimed by defendant 2 in the suit was the separate property of her husband and also claiming that the properties conveyed under the settlement deed were the self-acquired and separate properties of her husband besides other contentions. Issues were framed raising besides the question as to the validity and binding nature of the compromise decree, other questions as to what are the family properties, movable and immovable, to be divided, and what the plaintiff's share therein was and also an issue as to the nature of the properties conveyed under the settlement deed. A preliminary decree was passed in the said suit, O. S. No. 44 of 1942, declaring that the compromise decree in O. S. No. 53 of 1940 on the file of that Court was not binding on the plaintiff and that the parties should be restored to their status quo ante as it stood before the said compromise decree ; that defendant 2 and his father were each entitled to a half-share in the joint family agricultural properties ; that the plaintiff was entitled to a one-third share in the joint family movable and immovable properties other than agricultural lands and that the plaintiff was solely entitled to the insurance amount got under her husband's life insurance policy and that the properties conveyed under EX. P-2, the settlement deed, were the private properties of Anjaneya Reddi and not of the joint family.

2. The plaintiff applied in I. A. No. 95 of 1945 filed in the said suit O. S. No, 44 of 1942 for passing a final decree in respect of the properties described in the schedule to that petition, for a division into three shares as per directions in the preliminary decree and for the appointment of a Commissioner, if necessary, to make the division either in specie or otherwise. Defendant 2 opposed the said application and in his counter-affidavit he stated that it was not open to the plaintiff to ask for inclusion in the final decree new movables mentioned in the schedule to the application which were not the subject-matter of the suit or of the preliminary decree. On that an order was passed dismissing the petition, the Court observing that most of the properties sought to be partitioned were not included in the suit and that she has to seek her remedies otherwise and that she cannot be allowed to agitate the matter hereafter once the preliminary decree had been passed.

3. Soon after the order in I. A. No. 95 of 1945, the plaintiff filed I. A. No. 367 of 1945 in O. S. No. 53 of 1940 for an order to restore the suit O. S. No. 63 of 1940 to file and proceed to try the same on merits and dispose it off according to law. In the affidavit she stated that she is entitled to such an order by reason of the clause in the preliminary decree in O. S. No. 44 of 1942, that the compromise decree in O. S. No. 53 of 1940 was not binding and that the parties should be restored to status quo ante and on the observations of the lower Court in the order in her application for passing a final decree, that she might seek other remedies in respect of the properties which were not mentioned in the plaint or in the preliminary decree. The application was opposed on the ground that there was no provision of law under which she could ask that the suit O. S. no. 53 of 1940 could be restored to file and tried afresh. The lower Court found in favour of the respondent that such an application was not maintainable and the present petitioner was at liberty to seek such proper and legal remedies as are open to her to get all the properties of the joint family divided if they were really left out in the prior partition.

4. It is contended on behalf of the petitioner that she is entitled to have the same tried on merits by virtue of Clause (a) of the decree in O. S. No. 44 of 1942. The decree declares that the compromise decree in O. S. No. 53 of 1940 is not binding and adds that the parties should be restored to status quo ante as it stood before the compromise decree. It is argued relying on the latter part of the clause that she is entitled to foe relegated to the position of the plaintiff in O. S. no. 53 of 1940 and to proceed with the trial of that suit, It would no doubt be a correct contention if the trial in O. S. no. 44 of 1942 related only to the validity of the compromise decree and did not deal with the other questions raised in the suit, viz., the rights of the parties to partition, their respective shares and the properties in which they would be entitled to a share, the subject-matter of the suit in O. S. No. 44 of 1942 being practically the same as in the previous suit O. S. No. 53 of 1940. The petitioner sought to file a written statement, allowed issues to be raised not only on the question of compromise decree but on other matters and the Court gave its finding on several of the issues and passed a decree declaring the shares of the parties, directing a partition and giving other reliefs. It may be pointed out that there was no appeal against the preliminary decree and at no time any contention was raised that it was not open in O. S. no. 44 of 1942 to decide any other issue excepting the issue relating to the compromise decree. Not content with that the petitioner also accepted the preliminary decree and in pursuance of it applied for a final decree in I. A. No. 96 of 1945 but did not get the order which was sought for in that application. I do not think that on the ground that she was not allowed to have other properties mentioned in the preliminary decree brought in for partition she could seek this remedy of reopening a suit the questions involved in which having been raised and disposed of in the subsequent suit, O. S. No. 44 of 1942.

5. The learned counsel relied on the decision in Lakhanlal v. Sitaram , where it is held that when a decree against a minor is set aside on the ground that the minor was not properly represented in the suit, the original suit is not wiped out as against the minor but will continue from the stage at which the minor had a right to defend the claim against him. That will no doubt be the correct position here if, as I have already pointed out, the lower Court in O. S. No. 44 of 1942 had dealt with the issue relating to the compromise decree alone.

6. To similar effect is the other decision cited by the learned counsel for the petitioner in Loke Nath Das v. Biharee Lal : AIR1936Cal421 . There it was held that when a decree passed against a minor is declared to be invalid and inoperative against him in a subsequent suit by the minor on the ground that there was no proper appointment of a guardian ad litem the Court has the power to revive the former suit against the minor. The objection to the revival of the suit was raised on the ground that it was only a declaratory decree and there was no direction as to the revival of the other suit. The learned Judges held that a further decision was not necessary, a simple declaration would be sufficient. In Manoharlal v. Jadunath Sing, 28 ALL. 585 : 33 I. A. 128, which was an appeal against the decree of the Judicial Commissioner of Oudh where the Judicial Commissioners set aside certain compromise and decrees in a foreclosure suit and specifically directed that they be set aside 'in their entirety' and that they 'have to be decided afresh', their Lordships of the Privy Council held that it would be quite sufficient if there was a declaration that the compromises and decrees were not binding upon the minor and the minor would be remitted to his original rights. Clause (a) of the decree in O. S. No. 44 of 1942 is in the same terms as laid down by the Privy Council meaning thereby that the parties should be restored to their status quo ante. If their original rights being the matters involved in the previous suit had not been decided they would be entitled to proceed with the suit and have the same adjudicated. Their Lordships of the Privy Council have thought it necessary to say that the language of the decree of the lower Court was rather too wide and that it would be sufficient if there was a declaration. It is therefore enough if there was a mere declaration since the steps to be taken in consequence of the declaration would depend on the particular circumstances of each case. The lower Court could have contented itself by giving a declaration without mentioning that the parties should be restored to their status quo ante. The addition, however, does not change the position but was only superfluous. In this case the matters which have been in issue in the previous suit having been tried and a preliminary decree having been passed in O. S. No. 44 of 1942, there was no necessity, nor any justification for the Court for reviving the earlier suit O. S. No. 53 of 1940 and allow it to be tried. I am therefore of opinion that the order of the Subordinate Judge's Court of Chittoor is right, in holding that the petition was not maintainable.

7. The civil revision petition is dismissed with costs.


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