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Sistla Yagnanarayana Sastri Vs. Chilukuri Lakshminarayana and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberAppeal No. 301 of 1947
Judge
Reported inAIR1952Mad495; (1951)IMLJ502
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 3; Limitation Act, 1908 - Schedule - Article 125; Hindu Law
AppellantSistla Yagnanarayana Sastri
RespondentChilukuri Lakshminarayana and ors.
Appellant AdvocateC.V. Dhikshitulu and ;N. Rajeswara Rao, Advs.
Respondent AdvocateV. Subramanyam, Adv.
DispositionAppeal dismissed
Cases ReferredVaramma v. Gopaladasayya
Excerpt:
.....can well be regarded as an alienation by the widow within the meaning of article 125. alienation' in article 125 is not used as synonymous with a transfer by way of sale, mortgage, exchange, lease or gift. in the present case the widow effectively, though indirectly, parted with her proprietory right in the suit properties in favour of deft. 13. i have the less hesitation in applying article 125 to a case like the present where the nearest male reversioner sues to declare the invalidity of an alienation by the widow & where the presumptive reversioner is herself a limited owner for, it is not even necessary for the plff......& rs. 4,000. o. s. no. 14 of 1936 was brought by the present deft. 2 on the allegation that the suit properties & others which formed the subject of the partition decree, were the self-acauired properties of narayanamurthi & that the partition decree obtained by his sons in respect of these properties was fraudulent & collusive. the deft. 1 along with other defts had filed a written statement denying these allegations. she was a minor represented by her father as guardian 'ad item' when the written statement was filed. directly she attained majority, she withdrew her defence & suffered a decree in favour of deft. 2 in respect of the whole of his claim against her except mesne profits & costs. if the compromise had been entered into during her minority, the court might have had an.....
Judgment:

Viswanatha Sastri, J.

1. This is an appeal by deft. 2. against a decree of the Court of the Subordinate Judge of Tenali granting a declaration that a compromise of a prior suit effected as between deft. 1, the widow of the last male owner & deft. 2, who claimed a title adverse to the widow, was not binding on the phis., the reversioners. Mr. Dikshitulu for the appellant raised two main contentions, namely, that the suit was barred by limitation & that the compromise was a bonafide settlement of a dispute by the widow of the last male owner & was therefore binding on the reversioners. There were subsidiary contentions which would be noticed when dealing with these main points.

2. The relevant facts have to be stated: Narayanamurthi, a merchant & land-owner, died in 1931, leaving his widow, plff. 2. & two sons Lakshminarayana plff. 1. & Anjaneyulu who died after his lather leaving his widow, deft. 1. Narayanamurthi became heavily involved in debts & was adjudicated an insolvent on 28-2-1931 on a petition, I. P. No. 30 of 1830, filed by his creditors on 22-8-1930. On 4-12-1930, the two sons of Narayanamurthi filed a suit for partition, each claiming a l/3rdi share of his properties on the footing that they were joint family properties. A preliminary decree passed on 10-l-1931 was followed by a final decree dated 3-2-1931. Lakshminarayana, pltf. 1, & Anjaneyulu, his brother, obtained possession in December 1931, of the properties allotted to each of them by the final decree. On 30-6-1934 Kushaljee, a creditor of Narayanamurthi, sued on a prepartition debt & obtained a decree in O. S. 390 of 1933 against the sons' shares of the family properties & was taking steps by way of execution. Lakshminarayana, plff. 1, conveyed all the properties he got under the partition decree in favour of his wife. Anjaneyulu died leaving his widow Krishnaveni Amma, deft. 1 who entered into possession of her husband's properties which consisted of 2 acres 30 cents of agricultural land, a separate portion of a house & some sites.

3. On 17-1-1936 the .Official Receiver in the insolvency of Narayanamurthi sold for Rs. 1,100/-the right, title & interest of the insolvent in the entire properties to the present deft. 2. who immediately thereafter filed O. S. No. 14 of 1936 on the file of the Court of the Subordinate Judge of Tenali for recovery of possession of the properties sold to him, impleading among others, Lakshminarayana (the present plff .1.) as deft. 1, his wife in whose favour he had conveyed his share of the properties as deft. 5, the widow of Anjaneyulu (the present deft. 1.) as deft. 2, Kushaljee the D. H. In O. S. 390 of 1933 as deft. 3. The suit was filed on the allegation that the properties purchased by the plff. from the Official Receiver were the self-acquired properties of the insolvent Narayanamurthi, that the partition decree obtained by the sons against him was fraudulent & collusive & that the sale by the Official Receiver conveyed the entire interest in the properties & not merely a third share of the insolvent. Defts. 1, 2, 3 & 5 among others flled written statements denying the plffs' allegations & repudiating the claim of the pltf. to anything more than the third share of the insolvent. Anjaneyum's widow (the present deft. 1.) then deft. 2, was a minor when the suit was instituted & was declared a major on 2-2-1938. On the same day I. A. 74 of 1938 was filed into court signed by the pltf. (now deft. 2), & deft. 2 (now deft. 1.) praying for a decree in terms of a compromise under which she withdrew her defence & consented to a decree for possession as prayed for by the pltf. & the latter gave up his claim for mesne profits & costs against her. On 3-2-1938 the Court passed an order on I. A. 74 of 1938 in these terms:

'Pltf. & defts. 2 & 20 admit Decree In terms.'

The suit O. S. 14 of 1936 was tried on the merits against the other defts. & was dismissed except with regard to one item of property, the Court holding that the properties purchased by the pltf. were the joint family properties of Narayanamurthi & his sons & that the partition decree obtained by the sons in respect of those properties had been validly passed. The decre in O. S. 14 of 1936 was drawn up on 21-9-1939. An appeal against the decree was dismissed by the District Court on 23-2-1942.

4. The present suit was Instituted on 9-8-1945 by Lakshminarayana, the brother of Anjaneyulu for a declaration that the compromise in I. A. No. 74 of 1938 on which a decree was passed by the Court O, S. 14 of 1936 was a fraudulent & collusive arrangement entered into between Anjaneyalu's widow, the present deft, 1 & the plff. In O. S. 14 of 1936 (the present deft. 2) & was not binding on the reversioners of Anjaneyulu. At the close of the trial the mother of Lakshminarayana was impleaded as plff. 2 on 8-8-1946 in order to overcome an objection that the suit was not filed by the presumptive reversioner. The suit was decreed In favour of the plffs. on 8-8-1946. Hence the appeal by deft. 2.

5. It would be inconvenient to deal with the merits of the case relating to the binding character of the compromise decree before I consider the question of limitation. The properties now in suit consist of 1 acre 64 cents of wet land & a separate part of a house & a site in Tenali, which deft. 1 Inherited as heir to her husband. The wet landshad been purchased in 1926 at about Rs. 1,500/- per acre. The house is valued by the plff. at Rs. 2,000/-in his evidence, but this is probably an exaggerated valuation. The deft. 2 would value the properties at Rs. 700 or Rs. 800 which is an absurdly low figure. The value of the properties in suit might safely be assumed to be somewhere between Rs. 3,000 & Rs. 4,000. O. S. No. 14 of 1936 was brought by the present deft. 2 on the allegation that the suit properties & others which formed the subject of the partition decree, were the self-acauired properties of Narayanamurthi & that the partition decree obtained by his sons in respect of these properties was fraudulent & collusive. The deft. 1 along with other defts had filed a written statement denying these allegations. She was a minor represented by her father as guardian 'ad Item' when the written statement was filed. Directly she attained majority, she withdrew her defence & suffered a decree In favour of deft. 2 In respect of the whole of his claim against her except mesne profits & costs. If the compromise had been entered into during her minority, the court might have had an opportunity to consider if it was beneficial to her. It was however effected Immediately after she attained majority, & the court had to record the compromise irrespective of its fairness or otherwise. The court tried the suit on the merits as between the plff. & the other defts. who had raised the same defence as deft. I & dismissed it except as regards a small item. The appellate court also confirmed the decision of the trial court. I am not relying on this circumstance as decisive one way or the other. A bona fide compromise might validly be entered into, even though a trial might have resulted in the contentions of one or other of the parties being upheld in their entirety. I am referring to the further course of the litigation in order to show that deft. 1 had a good & honest defence to the suit. There was a prior decree of court for partition in favour of her husband. There were other defts. contesting the suit on the same grounds as she did when she filed her written statement. It is not as If the burden of the defence or any part of the defence rested exclusively on her. It is not as if the widow gave up only a portion of the properties claimed by the plff. retaining the rest for the estate of her husband. She withdrew her defence & suffered a decree in favour of the plff. (present deft. 2) in respect of the entire claim against her except mesne profits. The benefit that she is supposed to have got by way of exoneration from liability from mesne profits was In my opinion, illusory. Her liability was to say the least, highly problematical. There is one circumstance which, in my opinion, fells strongly against the fairness & 'bona fides' of the compromise. The defts 1 & 2 entered into a secret bargain by which the latter allowed the former to enjoy 1 acre 11 cents of the lands absolutely as if it was a free gift by him to her. She has been in enjoyment of this land since the compromise. She has also paid the kist for the land & deft. 2 has been paying kist only for the rest of the property. This appears clearly from the evidence of P. W. 1 & the karnam P. W. 2. D. W. 1, the father of deft. 1, is not In a position to state whether his daughter would retain the 1 acre 11 cents or disclaim her right. D. W. 2, the deft. 2, states that he gave the land on lease to one Ramayya for 20 or 25 years & that he does not know whether Ramayya gave the land to deft. 1 or whether he is paying rent to her. This is merely a disingenuous explanation for covering up the fact that deft. 1 is in possession of 1 acre 11 cents. Deft. 1 herself has not been examined as to how she retains possession of one acre 11 cents of land in spite of the compromise decree & under what circumstancesthe compromise was entered into. She filed a written statement in the present suit fully supporting the case of deft. 2, & the omission of deft. 2 to examine her as a witness in support of the compromise is a serious defect in his case. Her father, D. W. 1, Who had filed a written statement on per behalf in the previous suit contesting the claim of deft. 2, admits that the compromise was not entered into on account of any apprehension that the defence would fail as a result of the evidence adduced or likely to be adduced on behalf of deft. 2. The property formed the bulk of the estate inherited by deft 1, & it is not likely that he would have suffered a decree to be passed in favour of deft. 2 on a confession of judgment unless she had bargained for & obtained 1 acre 11 cents for herself. Under the guise of the compromise she gave away her husband's property to deft. 2 receiving a portion of it absolutely for herself as a secret benefit.

6. A Hindu widow or other limited owner has power to compromise claims against the estate represented by her. But a compromise of a litigation entered into by the limited owner must, in order to bind the reversioner, be bona fide, fair & reasonable, or for the benefit of the estate & not for the personal advantage of the limited owner at the expense of the estate. 'Ram Sumran Prasad v. Shyam Kumari', 1 Pat. 741, 'Mata Prasad v. Nageshar Sahai', 47 All. 883, 'Ram Gowda Anna Gowda v. Bhau Saheb', 52 Bom. 1, 'Appasami v. Thyammar : AIR1939Mad830 nd Perireddi v. Venkataraju', I. L. R. (1947) Mad 681 . It has been urged by Mr. Dikshitulu that a compromise of a disputed claim does not amount to an alienation but is based on the antecedent title of the parties which It acknowledges, reliance being placed on the well-known decision of the Judicial Committee in 'Kunni Lal v. Goblnda Krishna Narain', 33 All. 356 & the cases which followed it. The effect of these decisions is that when a person puts forward a bona fide claim based on a pre-existing title & that title is to some extent recognised by a compromise, the estate which passes under the compromise to a limited owner would be of the same quality & amplitude as that of the title put forward. The true position is thus stated in Mayne's Hindu Law, Edn. 11, at p. 794 & 795:

'If the compromise is fair, reasonable & prudent in the circumstances in which a widow is placed, the alienation which is involved in the compromise must bind the reversioners. The alienation cannot be considered apart from the compromise....If the arrangement or settlement is between the limited owner on the one hand & a person who has no claims on the estate & who could not have had any bona fide belief in the justice of his claim on the other, any property which the latter lakes under such arrangement will be held by him only as ah alience from a limited owner & with no higher rights'.

7. It is impossible to hold that the widow acted bona fide in the interest of the estate when she withdrew her defence & confessed judgment. The circumstances referred to by Mr. Dikshitulu for the appellant are, in my opinion, not sufficient to repel the Inference that follows from the circumstances already adverted to. The fact that there was a D. H. in the person of Khushaljee who had to be paid is not a relevant consideration. The debt was scaled down to Rs. 405/-, Madras Act IV (4) of 1938 having been passed by the Provincial Legislature was awaiting the assent of the Governor-General at the time when the compromise was entered into. The D. H. had a right to proceed against the properties allotted not only to the share, of deft. 1's husband, but also against the properties of his brother. In any case I do not seewhat connection that decree debt had with the withdrawal of her defence to the suit by the widow. Nor has the fact that deft. 2 paid the D.H. a sum of Rs. 629/- in 1945, long after the compromise. any significance in this connection. It was suggested that there was some trouble from the tenants of the land. But this trouble assuming there was much of a trouble was long after compromise & did not relate to the lands in the possession of the widow. It was said that the value of the property given up must have been only about Rs. 1,000/-judging by the price stated in the sale deeds, Exs. D-6 & D-7 effected by plff. 1 in favour of his wife As plff. 1 himself naively stated, they were after all sales effected by a husband in favour of his wife. They were evidently intended as a ruse to put off his creditors & there was no need to waste more money on stamp & registration charges than was absolutely necessary for the end designed. The Court below has reached the conclusion that the compromise was brought about with the object of defeating the reversionary right of the plff. Deft. 2 was a speculative purchaser of property for about a tenth of its value & the widow played into his hands in consideration of a secret advantage which she gained at the expense of the reversioners I agree with the Court below in its finding on issue (3). Mr. C. V. Dikshltulu contends that the suit should have been dismissed as barred by limitation under Article 120, Limitation Act. The suit was filed by the brother of the last male owner while a nearest reversioner, the mother, was living for a declaration that the compromise decree in O. S. 14 of 1936 was fraudulent & collusive & not binding on the reversioners. The brother admitted in his evidence that he was aware of the compromise in O. S. 14 of 1936 before It was filed into Court on 2-2-1938. The Court made an order 'decree in terms' of the compromise on 3-2-1938. The suit was filed more than six years after the compromise was recorded & an order thereon was made. The fact that the suit was tried on the merits against the other defts. & a formal decree in respect of the whole suit was drawn up by the Court on 21-9-1939 would not give a fresh starting point of limitation, time having begun to run from 3-2-1938 the date of the Court's order. This defect could not be cured by the addition of the nearer reversioner, the mother, as a party to the suit on 8-8-1946.

8. The compromise decree cannot be considered to be an alienation so as to attract the operation of Article 125, Limitation Act, & save the suit from the bar of limitation. So ran an elaborate 6 strenuous argument which I have summarised as above.

9. I am of the opinion that Article 125, Limitation Act, governs this case. Where a person in assertion of an ostensible title sues to recover properties from a Hindu widow of which she is in possession as heir of her husband, & the widow having entered upon her defence, withdraws It & confesses judgment & suffers a decree for possession to be passed In favour of the pltf., on foot of a compromise entered into by her in fraud of the rights of the reversioners & in consideration of a personal benefit to herself, the transaction can well be regarded as an alienation by the widow within the meaning of Article 125. 'Alienation' in Article 125 is not used as synonymous with a transfer by way of sale, mortgage, exchange, lease or gift. These are the kinds of transfers dealt with by the Transfer of Property Act. but they are not exhaustive of the modes in which the alienation contemplated in Article 125, Limitation Act. could be effected. If a compromise decree or an award or a release is used by the widow as a pretext or cloak for parting with property belonging to the estate in favour of another person, there In an 'alienation' by thewidow, though no formal conveyance of the property is executed by her. In the present case the widow effectively, though indirectly, parted with her proprietory right in the suit properties in favour of deft. 2 under the compromise decree & also put him in possession thereof. There has been in truth & substance an alienation by the widow through the medium of a compromise. The court was bound to record the compromise & pass & decree according to its terms so far as they related to the suit, its jurisdiction being limited to an enquiry into the lawfulness of the compromise. The basis of the compromise was only the contract between the parties. Article 125 would apply to a suit by a reversioner to have such a compromise which resulted in an alienation declared invalid. See 'Ranga Rao v. Ranganayaki Animal', 35 M. L. J. 364, 'Kamakshi Ammal v. Poochammal', 21 M. L. W. '277, 'Sheo Singh v. Jeoni', 19 All. 524, 'Ram Sarup v. Ramdei', 29 All. 239, 'Anant Bahadur Singh v. Tirathraj : AIR1939All526 . In Timmali v. Subba Raju', 33 Mad. 473 relied upon by the appellant the question was whether the possession of the property under a compromise with the widow & who did not get any title or possession from the widow herself under the compromise, was adverse to the reversioner. The learned Judges while holding that the possession was not a derivative possession from the widow recognised that a compromise might be regarded as an alienation so as to enable a reversioner to sue for a declaration of its invalidity beyond the life-time of the limited owner who entered into the compromise. All that they said was that In that case the possession of the adverse claimant was adverse throughout & not a possession derived from the widow under the compromise. Where the nearest reversioner is a female who would only be entitled to a limited interest, it is open to the next male reversioner to sue for a declaration that an alienation by a widow is not binding beyond her life-time. In such a case it is not necessary for the plff. to allege, or prove that the presumptive reversioner his disabled himself from suing or has refused without sufficient cause, to institute a suit. Kandasami v. Akkammal', 13 Mad. 195, Raghupathi v. Tirumalal', 15 Mad 422, 'Chidambar Reddiar v. Nallammal' 33 Mad. 410. Though a literal interpretation of the first column of Article 125 would make it applicable to a suit only by a presumptive reversioner, a Wider interpretation has been put upon it so as to make it applicable even to a suit by a remoter reversioner in view of the fact that a suit by a reversioner to set aside an alienation by a limited owner is a representative one brought on behalf of all the reversioners & that all of them have only a single cause of action. At any rate, this is the view of a Full Bench of this Court in 'Varamma v. Gopaladasayya', 41 Mad. 659. See also 'Neelkan-tamier v. Chinna Ammal', 52 M. L. J. 13. I have the less hesitation in applying Article 125 to a case like the present where the nearest male reversioner sues to declare the invalidity of an alienation by the widow & where the presumptive reversioner is herself a limited owner for, it is not even necessary for the plff. to allege that the presumptive reversioner refused without sufficient cause to sue or has disabled herself from suing for the relief sought by the plff.

10. For these reasons I hold that the suit was governed by Article 125, Limitation Act, & was instituted In time by plff. 1. The addition of plff. 2 was unnecessary & in no way have affected the result of the suit.

11. This appeal fails & is dismissed with costs.


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