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Gangamirtham Pillai, Minor, by His Guardian, Chidambaram Pillai Vs. Rajamanikkathammal anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in53Ind.Cas.555
AppellantGangamirtham Pillai, Minor, by His Guardian, Chidambaram Pillai
RespondentRajamanikkathammal anr.
Cases ReferredMuthukumarasami Odayar v. Subramania Iyer
Excerpt:
hindu law - widow--compromise of suit effected by widow--reversioner, whether bound by compromise. - - in that petition the 2nd defendant expressed herself as satisfied with receiving rs. in the face of those documents it is impossible to say that the 2nd defendant was adjusting a bona fide dispute in regard to the estate, and the facts which have already been mentioned show clearly that the 2nd defendant was not making any attempt to protect the interests of the reversioner. 'when there is a litigation pending, the widow is also interested in the subject-matter of the litigation and she must have a discretion as to how to conduct that litigation and to come to an arrangement with her opponent, if as a matter of fact she believed that it would be in the best interests of the estate. the..........did make allegations that the properties standing in the name of krishnaswami were joint family properties and that the 2nd defendant was a member of the joint family, and it may be taken that the 2nd defendant, the widow of krishnaswami, acquiesced in that allegation on several occasions and even accepted the allegation as true. but any such statement of hers cannot amount to an estoppel by which the plaintiff would be bound and it is not so contended. these various statements of the 2nd defendant have been referred to only as showing that there was a bona fide dispute and that the razinamah was executed in settlement of that dispute. the most significant fact, however, *is that in the very razinamah petition all the properties are alleged by the parties as belonging to.....
Judgment:

Abdur Rahim, J.

1. The first question raised in the appeal relates to the effect of a compromise in a previous proceeding between the 2ad defendant, the widow of Krishnaswami Konar, his father, Karuppanna Pillai, his brother, Perumal, and the 1st defendant. Krishnaswami Konar who died in 1907 had, by his first wife, two daughter?, the plaintiff, and another daughter now deceased. After the death of his first wife he married the 2nd defendant, Muthukannammal. Karuppanna, his father, died in 1912 and Perumal, his brotner, died in 1910. The first defendant is the son of Perumal. It is not necessary to refer to the other defendants, for these are the principal parties concerned.

2. It would appear that, on the death of Krishnaswami Konar, his father and brother laid claim to the properties standing in his name as belonging to the joint family They applied for succession certificate and the 2nd defendant, the widow, apparently acquiesced at that time in their claim and made no objection to the grant of a certificate to Perumal. Then apparently she changed her mind not long afterwards, for we have got a number of notices, MM series, which she gave to the debtors of her husband; they were asked not to pay over outstandings to Perumal because he was making a fraudulent attempt to secure the moneys which did not belong to him. Thereafter the parties seem to have come to an amicable understanding, for a deed of maintenance was executed in 1909. Under that document the widow accepts Rs. 20 a month for her life as maintenance and also a right of residence in the family house. But again apparently she fell out with her husband's relations, for we fied that Karuppanna, Perumal and the 1st defendant instituted a suit, Orignial Suit No. 44 of 1910, for recovery of debts due under certain bonds in the name of Krishnaswami Konar, and in that suit the 2nd defendant filed a written statement alleging that the properties were the separate property of her deceased husband, being his self-acquisitions. Then apparently there was an attempt at mediation by common friends, with the result that a document, Exhibit XVIII, called settlement Sridhanam deed, was executed under which Perumal assigned to the plaintiff and her deceased sister hypothecation bonds to the value of Rs. 2,300. This was on 28th May 1910. The suit was compromised by a Razinamah petition Exhibit XX. In that petition the 2nd defendant expressed herself as satisfied with receiving Rs. 3,200 cash in quit of all her claims to the property of her deceased husband. A decree based on that petition, Exhibit XXI, was passed, the Court sanctioning the compromise on behalf of the minor 3rd defendant (1st defendant in this suit). The present plaintiff or her sister was not a party to that suit; and the Court's sanction was naturally not obtained on behalf of them, who were also minors at the time, for the compromise. It is the effect of Exhibits XX and XXI that we are mainly concerned with in this appeal. I might also mention another suit which was filed (Original Suit No. 3 of 1915) by the 1st defendant seeking to set aside the settlement in favour of the plaintiff and her sister under Exhibit XVIII. The plaintiff in this suit filed a written statement, Exhibit GG1, contesting that suit.

3. The contention on behalf of the appellant is that the compromise evidenced by Exhibits XX and XXI was in the nature of a family settlement arrived at by the widow and, there fore, binding on the plaintiff, the presumptive reversioner. No doubt the father and brother of Krishnaswami did make allegations that the properties standing in the name of Krishnaswami were joint family properties and that the 2nd defendant was a member of the joint family, and it may be taken that the 2nd defendant, the widow of Krishnaswami, acquiesced in that allegation on several occasions and even accepted the allegation as true. But any such statement of hers cannot amount to an estoppel by which the plaintiff would be bound and it is not so contended. These various statements of the 2nd defendant have been referred to only as showing that there was a bona fide dispute and that the Razinamah was executed in settlement of that dispute. The most significant fact, however, *is that in the very Razinamah petition all the properties are alleged by the parties as belonging to Krishnaswami himself and not as belonging to the joint family. There is no allusion whatever either in Exhibit XX or XXI to any claim by Perumal or by Karuppannah that Krishnaswami was a member of the joint family, that the properties belonged to the joint family and that the parties were adjusting their disputes in the manner stated in Exhibit XX. In Exhibit XXI also, the decree, they, in more than one place, speak of the properties as belonging to the deceased husband of the 2nd defendant. How came these documents to be drafted in that way it is impossible to tell, because no evidence has been brought to our notice which furnishes any explanation. In the face of those documents it is impossible to say that the 2nd defendant was adjusting a bona fide dispute in regard to the estate, and the facts which have already been mentioned show clearly that the 2nd defendant was not making any attempt to protect the interests of the reversioner. All that she was content with was a sum of Rs. 3,200, and for that amount she parted with all the properties of her husband amounting to about Rs. 20,000. These documents really are in the nature of an alienation purporting to be made by the widow of her husband's properties and not a settlement of a bona lide disoute as to the title of these properties. We have been referred to a ruling of the Privy Council on the subject of compromise by widows in Khunni Pal v. Gobind Krishna Narain 10 Ind. Cas. 477; 15 C. W. N. 545; 8 A L. J. 552; 13 C. L. 575; 11 Bur L. R. 427; 10 M. L. T. 28; (1911) M. W. N. 432; 21 M. L. J. 645; 38 I. A. 87 All that their Lordships lay down is to this effect, that a compromise is based on the assumption that there was an antecedent title of some kind in the parties, and the agreement acknowledges and defines what that title is.' Such an agreement is altogether wanting in this case, for it proceeds on the assumption not that Karuppanna and Perumal had any title to those properties but that they belonged solely to the 2nd defendant's deceased husband. Farther, as pointed out by a Bench of this Court in a case reported as Muthukumarasami Odayar v. Subramania Iyer 33 Ind. Cas. 687; 31 M. L. J. 87. a compromise effected by a widow, in order to be binding, must be shown to have been made with due care and caution. 'When there is a litigation pending, the widow is also interested in the subject-matter of the litigation and she must have a discretion as to how to conduct that litigation and to come to an arrangement with her opponent, if as a matter of fact she believed that it would be in the best interests of the estate. On the other hand, the reversioner is entitled to show that the compromise was not arrived at with due care and caution and was such as really showed negligence on the part of the widow.' In this case, as already stated, the 2nd defendant cannot be said to have taken any caution whatever to protect the interests of the reversioner. All the evidence points to the conclusion that she was from time to time acting either at the whim of the moment or at the advice of persons who happened to surround her at the time. I, therefore, agree in the conclusion arrived at by the Subordinate Judge on this point.

4. Then Mr. T. V. Muthukrishna Ayyar appearing on behalf of the appellant argued that the finding that the family was divided and that these properties were the self acquisitions of Krishnaswami is wrong. He did not in fact attempt to take us through the entire evidence in the case which has been fully dealt with by the Subordinate Judge, but he brought to our notice what apparently he thought was the most important evidence in favour of his client in this connection and as we did not think that that evidence in the light of the admitted facts of the case showed that the family was joint and the properties in dispute were properties of the family, he did not think it would serve any useful purpose to go further into the matter. I shall assume that he has succeeded in showing that Exhibit CO, which is a mortgage of the two houses for Rs. 3,000, alluded to two previous mortgages, Exhibits BB and Z. The mortgage under Exhibit Z for Rs. 1,000 purports to be in favour of Karuppanna, the father of Krishnaswami. But Exhibit CC does not, as pointed out by the Subordinate Judge, say that part of the consideration was a previous mortgage in favour of Karuppanna.

5. Whether Exhibit Z was a Benami transaction or whether there is some other explanation forthcoming as to how that is included in Exhibit CC, if that be a fact, we are not in a position to determine because no evidence has been given as to the circumstances under which Exhibit CC was executed, and as to how it referred to Exhibit Z even though it purported to be in favour of Karuppanna. It would be going much too far to say that these transactions showed that Krishnaswami was joint at their date with Karuppanna and Perumal. Krishnaswami admittedly left the family house in 1889, and he carried on separate business in contracts in his own name. A long list of documents which have been filed stand in his name alone. Similarly Karuppanna had a business in his own name and Perumal also was earning money and acquired properties separately, There cannot be any doubt whatever that the finding of the Subordinate Judge that Krishnaswami had separated from the family and all the3e properties were his self acquisitions is correct.

6. The next question relates to the appointment of a Receiver. The learned Subordinate Judge thought that in. the circumstances disclosed the best thing for the parties was that there should be a Receiver to collect the outstandings due to the estate of the deceased Krishnaswami. The 2nd defendant parted with her interest in the properties as a widow in favour of Perumal and Karuppanna now represented by the 1st defendant. It is so held by the Subordinate Judge and although she is represented by a Pleader in this appeal, she takes no objection to the finding of the Subordinate Judge to that effect. She, therefore, has no interest in safeguarding the estate of Krishnaswami. As the bulk of the property of the estate consists of outstandings, the Subordinate Judge was right in the circumstances to appoint a Receiver. At the same time the 1st defendant, who, it may be pointed out, is still a minor though he will attain majority soon, is entitled to make the best use of the money which he is entitled to hold during the lifetime of the 2nd defendant, and the learned Pleader for the 1st defendant has asked us, therefore, to modify the decree by directing that as soon as the Receiver has collected a sum of Rs. 1,000 or thereabouts he should hand over the amount to the 1st defendant on his (1st defendant's) furnishing security to the satisfaction of the Court after due notice to the plaintiff. This, 1 think, is reasonable.

7. With that modification the decree of the Subordinate Judge must be confirmed and the appeal dismissed with costs of the plaintiff.

8. As regards the memorandum of objections, the first point urged by the learned Pleader for the plaintiff was that, as a matter of fact, the 2nd defendant did not alienate her interest in the properties to Perumal and Karuppanna. But the 2nd defendant herself, though there is, as already pointed out, the decree against her so far as her interest is concerned, does not contest it and even in this Court her Pleader is content with the decree. It is not open to the plaintiff to dispute this part of the judgment of the lower Court.

9. The same answer applies to the second point urged in the memorandum of objections, namely, that the suit comprised properties other than those setout in the schedule to Exhibit XXI, the decree on the compromise and, therefore, at least with respect to those properties, the 1st defendant has no right even during the lifetime of the 2nd defendant. The 2nd defendant in Exhibit XX, the Razinamah, says that she has relinquished all her rights to the estate of her husband. As she does not raise any question before us as regards any item of the properties, the memorandum of objections must be dismissed with costs of the 1st defendant.

Spencer, J.

10. The plaintiff is the daughter and nearest heir of the deceased Krishna-swami Konar, who died in 1907. The 2nd defendant is plaintiff's stepmother and Krishnaswami Sonar's 2nd wife. Plaintiff sued to obtain a declaration that the decree in Appeal Suit No. 44 of 1910 on the file of the District Munsif of Trichinopoly was not binding on the reversioner. The first point argued in appeal was that when the 2nd defendant entered into the compromise in Original Suit No. 44 of 1910, she represented the estate of her deceased husband and that the compromise should be upheld as a bona fide settlement of family disputes and as binding on the plaintiff. I feel quite clear that the widow, 2nd defendant, did not represent any interests but her own when she entered into the compromise embodied in Exhibits XX and XXI in Original Suit No. 44 of 1910. What Muthukannammal got out of that arrangement was a lump sum of Rs. 3,200 in quit of all her claims on the estate of her deceased husband and a right of residence for her lifetime in a certain house. This she took 'absolutely and for her sole and exclusive benefit,' as stated in Exhibit XX. If any one represented the reversionary interest in that suit, it was rather the plaintiff in that suit, as may be seen from the words 'that the plaintiffs or other reversionary heirs of the said Krishnaswami Konar be entitled to the house after her.' Beyond the words 'other reversionary heirs of the said Krishnaswami Konar,' there is no indication that the future olaim of the reversioners to Krishnaswami Konar's estate was even oonsidered at the time; muoh less that step3 were taken to protest the iinterest of those minors.

11. Although the leave of the Court was obtained under [Order XXXII, rule 7, of the Code of Civil Procedure for the present appellant Gangamirdham, who was then as now a minor, entering into that oompromise, Rajamanikkathammal (plaintiff in this suit) and her sister Meenammal (now deoeased) were not personally made parties to that suit and no similar permission was obtained on their behalf for compromising it, although they were then minors. It would be manifestly unjust to hold the plaintiff and her sister bound by the aots of their step-mother in that suit.

12. On the other questions argued before us I have noting to add to what my learned brother has said and 1 agree in the order proposed by him.


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