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Kalianarama Aiyar Vs. Sivarama Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in51Ind.Cas.439
AppellantKalianarama Aiyar
RespondentSivarama Chettiar and ors.
Cases ReferredThuljaram Row v. Gopala Aiyan
Excerpt:
compromise decree - decree wrongly passed, whether nullity--jurisdiction of court--party consenting to decree, right of, to impeach decree--estoppel--evidence act (i of 1872), section 115. - - a court has jurisdiction to decide wrong as well as right, and if it decides wrong, the wronged party can only take the course prescribed by law of setting matters right......even if the charity properties were included in the compromise, they were not affected by the decree passed thereon, because the properties not forming the subject-matter of the the suit, the compromise decree could not affect them. as these properties were referred to in the plaint as being family properties though not divisible, and in the written statements an allegation was made that they were divisible before giving a decree for partition, it would have been necessary for the court to decide the question of their partibility and if it found that they were partible, these properties must necessarily have been included in the partition decree. in this respect they undoubtedly formed the subject-matter of the suit. the contention that no stamp duty had been paid specifically in.....
Judgment:

1. The 3rd defendant's husband, one Ramaswami Chetti, brought a suit in 1907 against defendants Nos. 1 and 2, who were the sons of his nephew, for partition. The 2nd defendant was then a minor. Eventually, Ramaswami Chetti was allowed to withdraw the suit as against the 2nd defendant with liberty to bring another suit and the suit was compromised between him and the 1st defendant, and a decree was passed in terms of the compromise. Under this compromise, the 1st defendant took a certain share of the family property and separated himself from the family. This was on 17th November 1908. In 1912 the 1st defendant sold certain properties which were the subject matter of this suit to the plaintiff, these properties being certain properties which belonged to the family of Ramaswami Chetti and defendants Nos. 1 and 2 but which were alleged in the prior litigation by Ramaswami Chetti to have been dedicated to charity. The question we have to consider now is whether the 1st defendant at the date of sale had any interest in the plaint properties.

2. In the prior Original Suit No. 80 of 1907 Ramaswami Chetti expressly mentioned these charity properties in his plaint, but said that, as definite arrangements had been made in the family for their management, it was unnecessary to obtain any relief in respect of them and, therefore, they were not included in the suit. The 1st defendant in his written statement no doubt asked that the plaintiff's suit should be dismissed, but in paragraph 24 he claimed that if there were a partition those charity properties should also be divided, and the 2nd defendant put forward a similar plea. The razinamah does not specifically relate to these charity properties, but we are clear, after a careful consideration of its terras, that they also formed the subject-matter of the compromise. The razinamah begins with the following words: 'Whatever may be the claims of us both', and we see from the plaint and written statements in that suit that a claim had been put forward in respect of the charity properties by the defendants, and the plaintiff had pleaded that they were not divisible. The razinamah then goes on to deal in detail with several of the contentions in the 1st defendant's written statement, and in respect of one of them it says in paragraph 6 that the dispute had already been settled, and finally paragraph 7 reads as follows: 'That the parties herein...have no right against one another in respect of property.' It is clear that there had been no prior settlement between them about the charity properties and it is equally clear that the compromise was in respect of all their claims, and amongst these claims must be included the claim of 1st defendant to share in the charity properties. We are, therefore, of opinion that the charity properties formed part of the subject-matter of the compromise.

3. The next contention of the appellant is that, even if the charity properties were included in the compromise, they were not affected by the decree passed thereon, because the properties not forming the subject-matter of the the suit, the compromise decree could not affect them. As these properties were referred to in the plaint as being family properties though not divisible, and in the written statements an allegation was made that they were divisible before giving a decree for partition, it would have been necessary for the Court to decide the question of their partibility and if it found that they were partible, these properties must necessarily have been included in the partition decree. In this respect they undoubtedly formed the subject-matter of the suit. The contention that no stamp duty had been paid specifically in respect of these properties is not of much importance, for even if the decree had been given without stamp duty being paid, it would not invalidate the decree, and we see that in valuing partition suits it has been held by this Court that the valuation is to be according to the amount at which the relief sought is valued in the plaint vide Boganadam Rangiah Chetty v. Boganadam Subramania Chetty 8 Ind. Cas. 512 In this view of the matter, we must hold that the razinamah decree did deal with the charity properties and consequently it is unnecessary for the respondent to fall back upon the razinamah itself. It is, therefore, unnecessary to decide the objection taken by the appellant that the razinamah, not being registered, cannot have effect as against the immoveable property.

4. The next objection urged against the razinamah decree is that it is a decree which could not have been passed in that suit and consequently is an absolute nullity. Reliance is placed on Lakshmana Chetti v. Chinnathambi Chetti 24 M. 326 and Gobind Chandra Sardar v. Bhagabat Sardar 27 Ind. Cas. 242. The case of Lakshmana Chetti v. Chinnathambi Chetti 24 M. 326 however, does not seem to be authority for such a broad proposition, for all that was decided there was that when parties to a partition suit had submitted to arbitration, the award made upon their submission could not be passed into a decree because there were some minors who were parties to the suit and leave of the Court had not been obtained under Section 462, Civil Procedure Code, either before the submission to arbitration or after the award. The case of Gobind Chandra Sardar v. Bhagabat Sardar 27 Ind. Cas. 242 is somewhat more in favour of the appellant, though it does not in terms say that such a decree is a nullity, for the decree in that case had been based on a compromise to which several of the defendants had not been parties, and it was held that it would not be binding upon them and that no decree ought to have been given in accordance with its terms and consequently the consent decree was set aside by the order in that case. Although this is authority for saying that the consent decree was wrongly made, it does not appear to be any authority for holding that that decree was a nullity ab initio. In order that the decree should be a nullity, it must be one passed without jurisdiction. If the Court had jurisdiction, the fact that it passed a wrong order would not make its order a nullity. A Court has jurisdiction to decide wrong as well as right, and if it decides wrong, the wronged party can only take the course prescribed by law of setting matters right. In this case the Court has jurisdiction to try the partition suit and whether it was right or wrong in passing the decree it did, it certainly had jurisdiction to do so. This question has been considered in Thuljaram Row v. Gopala Aiyan 40 Ind. Cas. 611; (1917) M.W.N. 234 and we agree with Srinivasa Aiyangar, J., that the 'true rule is that if the Court has jurisdiction to pass orders of a particular kind, that in a particular case it passed an order which it should not have passed is not a case of total want of jurisdiction so as to render that order a nullity.' If the decree is not a nullity, it must be binding, at any rate, on the 1st defendant and under that decree he gave up all his rights to the plaint property and was, therefore, unable to pass any title to the present plaintiff. Whether that decree is binding on the 2nd defendant who was not actually a party to it, the suit as against him having been withdrawn previously, need not, we think, be decided now. It is open to him to question it if he so wishes, but whether he can do so effectually when the managing member of his family effected a partition between the 1st defendant and the other members of the family is a doubtful point which can be left for determination when necessary.

5. In the result the second appeal fails and is dismissed with costs.


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