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Krishnaswamy Asari and anr. Vs. Muthulakshmi Ammal - Court Judgment

LegalCrystal Citation
SubjectCivil ;Family
CourtChennai
Decided On
Reported inAIR1928Mad1097
AppellantKrishnaswamy Asari and anr.
RespondentMuthulakshmi Ammal
Cases Referred and Kushodhaj Bhuta v. Braja Mohan Bhuta
Excerpt:
- - d, a joint statement, was put in by the mother and the daughter to the effect that the gift and the othi should be cancelled and that items 1 and 2 should be taken by the defendants absolutely and that items 3 and 4 should be enjoyed by the mother and after her death 2/3 should be given to the defendants in this suit and 1/3 to her other daughter the present plaintiff, in whose favour the othi was taken and cancelled. the fraud that was practised upon her really was that representation was made that she would get 1/3. it is only a question of the shares she was to get and there is no different ease as to the nature of fraud she complained of. the consideration was what the other side gave up and that will be good consideration if consideration was necessary......must be made to bear her own costs and also pay costs of the appellants calculated on value of the suit properties, throughout.reilly, j.6. this is a very curious case. the plaintiff has come to court in the present suit to free herself from a consent decree in o.s. 1261 of 1915 on the file of the district munsif of kulithalai, to which she was a party, on the ground that it was obtained by fraud, namely, that she was deceived in regard to the terms of compromise, upon which that decree was passed. her story is that she was made to believe that under the compromise she was to get 1/2 of each of the four items of property, though the compromise itself provided that she was to get only 1/3 of two items. the district munsif dismissed her suit except in respect of 1/3 of those two items. the.....
Judgment:

Kumaraswami Sastri, J.

1. Defendants 1 and 2 are the appellants. This appeal arises out of a suit filed to set aside a decree passed by consent and for partition of the suit property and for half share in the property. The plaintiff and defendant 2 are the daughters of one Mookan Asari who left a widow named Chinnammal. The plaintiff's case is that the decree in O.S. No. 1264 of 1915 on the file of the District Munsif's Court of Kulitalai which was a decree passed on a compromise entered into between Chinnammal and defendants 1 and 2 and the present plaintiff is not binding on her; that Chinnammal had only a widow's estate in the suit lands which were the property of Mookan Asari and that the plaintiff and defendant 2 are the daughters entitled to equal shares. The District Munsif held that there was no fraud so far as the decree was concerned and that it was binding on the plaintiff and dismissed the plaintiff's claim for one half of the property. On appeal the Subordinate Judge was of opinion that the compromise decree was obtained by fraud and gave her a decree for one half of the properties on the ground that she is entitled to one half as the daughter of Mookan Asari. He was also of opinion that the compromise in the previous suit was only in respect of a spes successionis and would not bind the plaintiff.

2. The suit O.S. 1264 of 1915 arose in this way. Chinnammal in 1910 executed a deed of gift, Ex. B, whereby she gave these properties to her daughter, defendant 2. At that time the present plaintiff was a widow and in order to provide for her, Chinnammal got a othi for Rs. 200 in her favour. In 1915 she seems to have changed her mind as regards what her daughter should get; she probably thought that she gave more to one daughter than to another and she filed a suit O.S. 1264 of 1915 to set aside the deed of gift. The suit was pending from 1915 to 1917 and in 1917 the suit was compromised. The parties to that suit were the mother of the present plaintiff, the defendant 2 in this suit and the husband of defendant 2, the first defendant. Various issues were raised in the suit and it is not necessary to consider them. Ex. D, a joint statement, was put in by the mother and the daughter to the effect that the gift and the othi should be cancelled and that items 1 and 2 should be taken by the defendants absolutely and that items 3 and 4 should be enjoyed by the mother and after her death 2/3 should be given to the defendants in this suit and 1/3 to her other daughter the present plaintiff, in whose favour the othi was taken and cancelled. It appears that; after this agreement was come to, the present plaintiff was made a party to that suit and Ex. B, a statement, was taken from her by the District Munsif where she said that she agreed to be joined as defendant and that a decree can be passed in terms of Ex. D which she said was read to her. The statement which she made was read to her in Court and she must have known what she was stating and as regards Ex. D, which was previously read to her, she said that she had it read to her before. The fraud alleged is that it was represented, to her that Ex. B was a statement whereby she was to get half of those properties and her case is that defendants 1 and 2 and P.W. 2 made that representation to her and that she, believing in that representation admitted the razinama in pursuance of which the compromise decree was passed. The District Munsif found that the allegations were false, that there was no fraud practised upon her and confirmed the arrangement under Ex. D, The Subordinate Judge was of opinion that her case, as laid in the plaint, is substantially true; that she was told that she was to get one third of the properties under the compromise and acting on the representation of P.W. 2 she signed the razinamah. He says in para. 12 of his judgment:

P.W. 2 Kamaswami Asari and the plaintiff are no doubt lying when they say that it was. represented to them that the razinamah was to the effect that plaintiff would have a half share in all the properties after Chinnammal's death. But it is equally certain that what was represented to plaintiff was that she would get 1/3 share in all the four items after Chinnammal's death and that it was only under that belief that she affixed her mark to the original oil Ex. B.

3. This finding makes it clear that she would have consented to sign Ex. B, if it had stated that she would get 1/3 of the entire property. It is argued by the appellant's counsel that fraud as alleged has not been proved and that the plaintiff's suit should have been dismissed; and that it is not open to the Subordinate-Judge to take the evidence of D. Ws. 2. and 4 and construct a case of fraud on that evidence which is at material variance with the evidence of the plaintiff as to the nature of the fraud perpetrated.

4. Reference is made to Abdul Hoossain Zenail Abadi v. Charles Agnew Turner [1887] 11 Bom. 620, Mahomed Mira Ravuther v. S.V. raghunatha Gopalar [1900] 23 Mad. 227, Lalit Mohan Nandy v. Haridas Mukerjee [1916] Cri.L.J. 835. It is no doubt true that where fraud alleged is of one kind you cannot convert the suit for setting aside the transaction on a different kind of fraud, but in this case I do not think that the fraud is so entirely different from the fraud found as to entail dismissal of the suit. What the Subordinate Judge finds on the evidence is that the present plaintiff was told that Ex. D contained certain terms which it did not contain; and the Subordinate Judge adds that the fraud alleged, i. e., the representation that she would get 1/2 is not true; the fraud that was practised upon her really was that representation was made that she would get 1/3. It is only a question of the shares she was to get and there is no different ease as to the nature of fraud she complained of. It is difficult to see how the Subordinate Judge, on the finding that the representation was that 1/3 would be given to her and when the relief prayed for, is to set aside the compromise decree, gave her relief to 1/2 share of the properties. So far as the compromise decree is concerned, it is, as a matter of fact, a contract between the parties. All that is agreed to under the contract is embodied in the decree and there is no adjudication by the Court. The nature of a compromise decree has been considered in Nagappa v. Venkata Rao [1901] 24 Mad. 265, Thayammalachi v. Sevu Rajali [1911] 2 M.W.N. 327, Bheama Venkataramanna v. B. Gurappa : AIR1916Mad1006 . It stands on no higher footing than a contract between the parties and the authorities also show that such a decree can be corrected or rectified if owing to fraud or mistake it does not represent the real contract between the parties. I need only refer to Bepin Krishna Ray v. Jogeshwar Ray : AIR1921Cal730 , Venkatarama Ayyar v. Ellumalai Naicker A.I.R. 1923 Mad. 442, U. Latchayya v. G. Sitamma : AIR1927Mad1144 , Srish Chandra Pal v. Trigana Prasad Pal [1913] 40 Cal. 541 and Kushodhaj Bhakta v. Braja Mohan [1916] 43 Cal. 217. I have little doubt that the provisions of Section 31. Specific Belief Act, apply to this case and that section specifically provides for the rectification on the ground of fraud. Reference is made to Valliakkal v. Kaluppa Goundan : AIR1926Mad1146 , a decision of Devadoss, J., which follows S. A. 62 of 19-0, to show that a compromise decree is an instrument in writing. As Section 31, Specific Belief Act, applies to compromise decrees, and the authorities referred to are sufficient authority for holding that a compromise decree can be rectified on the ground of fraud, it is unnecessary to decide if a compromise decree is an instrument in writing.

5. In the present case, on the finding of the Subordinate Judge that by reason of a false statement made that the compromise under Ex. B gave the plaintiff a right to 1/3 properties, she signed the contract and agreed to the decree, I think that the proper relief to give her would be, to put her in the same position in which she would be if there had been no mistake and she must be declared entitled to 1/3 properties. So far as the decree of the Subordinate Judge which says that she is entitled to half the properties, we do not think it can be supported. It is argued that the compromise decree is invalid as effecting an alienation of a spes successionis which could not be transferred. We do not think that so far as a party to a decree is concerned, he can be heard to say that the decree is not binding on him. The alienation by the widow is only voidable at the instance of the reversioners and is. not void. This has been held by the Privy Council in Ramgowda Annagowda Patil v. Bhausaheb . If the widow had sold the property it would have been open to the next reversioners to agree to that transaction and if they did not set aside that transaction it would be valid. In this case the alienation was in favour of her daughters and they having agreed to it one of them cannot now turn round and say that the transaction is void and get her share as if there was no compromise. It is argued that the plaintiff got no consideration for the compromise, but it is clear that the defendants gave up certain rights which they claimed, namely, the right to be in possession of the properties under the gift deed at least during the widow's lifetime. The consideration was what the other side gave up and that will be good consideration if consideration was necessary. It is also clear from Ramgowda Annagowda Patil v. Bhausaheb , that a transaction where a reversioner consents to an alienation and receives some benefit is binding on him and thereafterwards he cannot on the death of the widow seek to set aside the transaction on the ground that the alienation is not binding on him. I am of opinion that the decree of the Subordinate Judge cannot stand and that it must be modified by giving plaintiff a decree for 1/3 share in all the properties and mesne profits, Rs. 46-10-8, for 1/3 share for two years prior to suit. Subsequent mesne profits will be provided for in the final decree. As regards costs, as the plaintiff tried to make out a false case she must be made to bear her own costs and also pay costs of the appellants calculated on value of the suit properties, throughout.

Reilly, J.

6. This is a very curious case. The plaintiff has come to Court in the present suit to free herself from a consent decree in O.S. 1261 of 1915 on the file of the District Munsif of Kulithalai, to which she was a party, on the ground that it was obtained by fraud, namely, that she was deceived in regard to the terms of compromise, upon which that decree was passed. Her story is that she was made to believe that under the compromise she was to get 1/2 of each of the four items of property, though the compromise itself provided that she was to get only 1/3 of two items. The District Munsif dismissed her suit except in respect of 1/3 of those two items. The Subordinate Judge did not believe her story in regard to the deception practised upon her and says that she and her only witness, her brother-in-law, are liars. But in spite of that he has come to the conclusion that the compromise decree ought to be set aside on the ground of fraud, because, although she was not deceived in the way she alleged, yet according to him she was deceived to some lesser extent. He has found that her story is not true, but that it is true that she was deceived because it was represented to her that she was to get 1/3 of all the items. That appears to me to be an unsatisfactory way of disposing of the case. It is a very serious thing for a party to, a decree to come to Court in a later suit and try to free himself from the decree on the ground of fraud. If he wishes to do so, he should be required to specify the exact fraud of which he complains and to make out that fraud. But in the present case the Subordinate Judge has found as a fact that the plaintiff was deceived, and rather reluctantly I agree to the conclusion that we ought not to interfere with that finding of fact in second appeal. But on that finding what decree should be made? It has been represented for the plaintiff that, if the decree in the previous suit was obtained by fraud, then it does not bind her and she is entitled to enforce her claim as if the decree has never been made at all. But this was not a decree made after contest; it was a decree on a compromise. Curious as the Subordinate Judge's finding of fact may be, it is admitted that the plaintiff did bargain for a compromise with the other parties, and the Subordinate Judge finds that the bargain she understood she was making was that she was to get 1/3 of all the items.

7. It appears to me to be inequitable that in this suit she should get more than what she has been found to have bargained for. Nagappa v. Venkata Rao [1901] 24 Mad. 265 is an authority for the proposition that a decree on a compromise may be treated as a contract with all the incidents of a contract, and in that case relief against forfeiture was allowed, treating the compromise decree as a contract. And Bepin Krishna Roy v. Jogeshwar Roy : AIR1921Cal730 and Kushodhaj Bhuta v. Braja Mohan Bhuta [1916] 43 Cal. 217 are authorities for the position that a decree made upon a compromise may be rectified on the principle of Section 31, Specific Relief Act, as if it was a contract. In the circumstances, I agree that at the most it is proper that the plaintiff should be allowed to get out of this litigation 1/3 of all the four items and that we should make a decree to that effect. I agree also that she is certainly not entitled to get costs in any part of the litigation, as she has come forward with a false case. I agree too that it is only on the ground of fraud that she can be heard to attack the decree in the former suit.


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