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S.M.A.M.S. Meyyappa Chettiar Vs. Seethachi Achi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1937Mad200
AppellantS.M.A.M.S. Meyyappa Chettiar
RespondentSeethachi Achi and ors.
Cases ReferredVijayanagram Maharajah v. Sitarama Raju
Excerpt:
- - he was inclined to the view that before a suit is terminated by a decree that question whether a suit has been lawfully adjusted in part or in whole by an agreement outside the court will be a matter in controversy in the suit, and if third parties are involved in such an agreement it would be unjust to decide on the question of the truth and validity of the compromise in the absence of such a third party and the third party should be added so that the court may be enabled to adjudicate effectively and once for all on the questions raised relating to the compromise. it would have been better if the learned judge had kept both of them on the file, but as it is, there is only the appeal before me. sreenivasa iyengar stated that he would argue this appeal on the footing that the.....venkataramana rao, j.1. this is a civil miscellaneous appeal against an order refusing to make the appellant a party defendant to the suit, o.s. no. 56 of 1930, on the file of the subordinate judge of devakotta. there is another connected c.m.a. no. 313 of 1934 refusing to record a compromise alleged to have been entered into between the parties to the said suit and also the appellant. there is another c.r.p. no. 1061 of 1934, arising out of the same matter permitting withdrawal of the suit by the plaintiff. these matters have been dealt with by no less than three subordinate judges and have come up to the high court in some form or other and were dealt with by no less than five learned judges of this court. the result has been that some of the orders are not reconcilable one with the.....
Judgment:

Venkataramana Rao, J.

1. This is a Civil Miscellaneous Appeal against an order refusing to make the appellant a party defendant to the suit, O.S. No. 56 of 1930, on the file of the Subordinate Judge of Devakotta. There is another connected C.M.A. No. 313 of 1934 refusing to record a compromise alleged to have been entered into between the parties to the said suit and also the appellant. There is another C.R.P. No. 1061 of 1934, arising out of the same matter permitting withdrawal of the suit by the plaintiff. These matters have been dealt with by no less than three Subordinate Judges and have come up to the High Court in some form or other and were dealt with by no less than five learned Judges of this Court. The result has been that some of the orders are not reconcilable one with the other, and when the matters came up for final disposal it caused not a little embarrassment to the trial Judge so as to prevent him from having a correct approach to the several questions presented to him for decision. Before dealing with the contentions advanced on either side by the learned counsel it is necessary to advert briefly to the history of this litigation. There were four brothers who formed a joint family, namely Soliyappa, Arunachala, defendant 1 in O.S. No. 56 of 1930, Muthuveerappa and Ramaswami, defendant 3 in the said suit. The plaintiff is the widow of the said Muthuveerappa and the appellant in this case, Meyappa, is the son of Solayappa who died in or about 1908. The appellant had a brother Natesa alias Ramaswami who was given in adoption to defendant 1 in this case, and he is also now defendant 2 in the said suit. The family appears to have owned considerable property. Apart from immoveable properties it carried on extensive trade in Rangoon, Penang, Saigon and other places. In or about 1924 the parties became divided with the aid of arbitrators. It appears that an arrangement was entered into at that time, that having regard to the incapacity of Muthuveerappa, the properties and moneys that fell or would fall to the share of Muthuveerappa should be taken care of and managed by defendants 1 and 3, and in pursuance of the said arrangement they did really undertake that duty and have been in possession of the said properties and moneys.

2. The said Muthuveerappa died on 6th January 1928, and on 8th January 1928 a document came into existence from which it is evident that the management was continued by defendants 1 and 3. The document provides that an arrangement should be made for an adoption to the said Muthuveerappa. It also purports to cut off the widow with a sum of Rs. 31,000 for her maintenance. The plaintiff was apparently dissatisfied with the treatment accorded to her by defendants 1 and 3 and misunderstandings arose. It also appears that there were misunderstandings between the appellant Meyappa and defendants 1 and 3, and there were two suits filed as the result of such misunderstandings between Meyappa and defendants 1 and 3 being O.S. No. 42 of 1927 and O.S. No. 75 of 1929 on the file of the Sub-Court of Devakotta. The plaintiff was contemplating a litigation against defendants 1 and 3. Meyappa took this opportunity and offered financial assistance to her as is evident from Ex. 1 under which he agreed to finance to the extent of Rs. 20,000. With his aid the said suit, O.S. No. 56 of 1930, was launched, and it is in evidence that he engaged a law agent, one Venkatachala Aiyar, to assist her in the conduct of the litigation. He also engaged one Mr. V.S. Lakshmi Narayana Ayyar as Vakil and it is also in evidence that he was giving instructions on her behalf. In the suit filed by the plaintiff she prayed for an account of the management by defendants 1 and 3 and for delivery to her of all the documents, securities, title deeds and moneys in their possession. According to her a very large amount would be due and owing by defendants 1 and 3 to the extent of about 20 lakhs. In the plaint she stated that her husband had given her authority to adopt. The defence was a denial of this authority and that the plaintiff had no right or claim in regard to her husband's estate in view of the fact that she had also received a sum of Rs. 31,000 in full quittance of her claims. The suit was filed in or about April 1930 and issues were settled on 6tb September 1930. It does not appear how it originated but attempts at settlement of all the litigations between the parties were set on foot in or about March 1931. It was obviously to the interests of defendants 1 and 3 to have not only O.S. No. 56 of 1930, the suit filed by the plaintiff, but also two other suits pending between them and Meyappa should be settled.

3. There seems to be no doubt that the object of defendants 1 and 3 was to somehow get at the estate of Muthuveerappa and not to let it go into the plaintiff's hands. It may also be presumed that Meyappa was anxious to have not only the litigations which he was involved in settled but also to get some share of Muthuveerappa's estate. It is also evident Meyappa being the next reversioner in degree to defendants 1 and 3, any arrangement entered into by defendants 1 and 3 in regard to the estate may be attacked by Meyappa when the succession really opened and the participation of Meyappa in any such settlement to be arrived at in regard to the estate would have been thought of by the parties; and further Meyappa actively helped the plaintiff, and in view of the fact that the deed between Meyappa and the plaintiff provides that no compromise should be entered into in the said suit O.S. No. 56 of 1930 without the consent of Meyappa, Meyappa would be a necessary party to be consulted in regard to any compromise that may be arrived at between the plaintiff and defendants 1 and 3 in the said suit. Rajah Sir Annamalai Chetti being the most influential member of the community to which the parties belong was naturally looked up to as the person with whose aid and intervention the matters in dispute between the parties may be adjusted. Thus we find about the end of March 1931 the parties assembling in the house of Raja Sir Annamalai and discussing the ways and means of a settlement of the various litigations between the parties. The undisputed facts are that all the parties to the suit, the appellant and the Vakils of respective parties were present in Rajah Sir Annamalai's house in or about March 1931; some draft of a compromise was also made; it does not appear by whom it was prepared; it is also in evidence that the draft was seen by Sir Alladi Krishnaswamy Iyer, the Advocate-General, and also by Mr. K.V. Ramaswami Iyer of Madura, but that draft is not forthcoming.

4. It is not possible to know what the terms embodied therein are. It is also not disputed that again on 16th April 1931 there was a meeting of the parties in the house of Rajah Sir Annamalai in Kanadukathan, that on that day the defendant, the appellant, Vakil Lakshminarayana Aiyar, O.A.P. Arunachalam Chetty and the Rajah were all present. On that day certain documents came into existence, a deed of compromise, Ex. A in the case, and a petition, Ex. B, and an affidavit in support thereof to enable the appellant to be a party to the suit. The affidavit was sworn before the Rajah Sir Annamalai. The said compromise was signed by the appellant and also by defendants 1 and 3 and their signatures appear to have been attested on the said date. Similarly the petition, Ex. B, also appears to have been signed by both the appellant and defendants 1 and 3 on the said date. Originally the case was, the plaintiff also signed on the 16th and the appellant swore falsely in chief examination in regard thereto but subsequently gave it up. And it is a fact that her thumb impression was taken only on the next day, the 17th. It is also in evidence that on that date the Rajah was not in the village but came away to Madras, and when the thumb impression was taken nobody on her behalf was present except Venkatachala Aiyer. Both the razinamah and the petition to make the appellant a party ultimately reached the hands of the Rajah and remained with him until 20th January 1931 when, by the direction of the Rajah, the papers were handed over to the appellant. The appellant immediately filed two applications: one to make him a party to the suit and another to record the compromise and pass a decree in accordance therewith. The former petition was numbered as I.A. No. 673 of 1931, the latter petition was numbered as 674 of 1931. The applications were opposed both by the plaintiff and defendants 1 and 3. The case of the plaintiff as set out in her counter affidavit is that given in para. 5:

I was told that the Kumbabhishekam of the temple at Virkadi in which the family of the parties was interested had to be performed and for that defendants 1 and 3 and the applicant had to co-operate and for that purpose my mark had to be taken to a paper which contained some arrangement between them. I was requested to affix my thumb impression to a paper that was placed before me by the applicant. Relying on the express assurance that nothing would be done without the consent of my aforesaid relatives and without knowing anything about the contents of the paper to which I was asked to affix my thumb impression I made my thumb impression and then the paper was left with Kumara Rajah M.A. Muthiah Chettiar. The paper was not read over to me nor were its contents translated or explained. I was not informed of its terms, purport or import; and I was absolutely kept in the dark about its contents. Further I was told that the paper would be left with Rajah Sir M.A. Annamalai Chettiar and his son, the said Muthiah Chettiar, pending final settlement between the parties and the obtaining of the consent of my aforesaid relatives. I had no independent advice in the matter and I never assented to the giving up of my right to make an adoption. I never consented to the partition of my husband's estate.

5. The case of defendants 1 and 3 is quite different. They had not repudiated the terms of the compromise in so far as the plaintiff was concerned. But they allege that there was no final compromise in that the arrangement should only form part of other arrangements still remaining to be effected between themselves and the appellant, that not only this rajinamah and the petition to make the appellant a party were brought into existence on that date, but there was also a letter of reference executed on the same date, 16th April 1931, in and by which the matters in dispute in O.S. No. 42 of 1927 and O.S. No. 75 of 1929 were referred to the arbitration of Rajah Sir Annamalai Chetty, one Murugappa Chetty and another Arunachalam Chetty, that the present compromise would not be said to be operative till those outstanding matters are also settled by arbitrators and that those papers were left with Sir Annamalai only on the said condition but somehow by misrepresentation the appellant got the papers from him and filed the same into Court. The plaintiff and defendants 1 and 3 have also taken the legal pleas that as the appellant was a stranger to the suit he has no locus standi to present either of the petitions and he can neither be made a party to the suit nor can the compromise be enforced at his instance. On 26th September 1931 the then Additional Subordinate Judge, Mr. E. Rangaswami Iyengar, first dealt with both the applications. He was inclined to the view that before a suit is terminated by a decree that question whether a suit has been lawfully adjusted in part or in whole by an agreement outside the Court will be a matter in controversy in the suit, and if third parties are involved in such an agreement it would be unjust to decide on the question of the truth and validity of the compromise in the absence of such a third party and the third party should be added so that the Court may be enabled to adjudicate effectively and once for all on the questions raised relating to the compromise. He accordingly declined to reject the petition in limine and directed that the evidence should be gone into, and proposed to deal with both the applications together.

6. Against this order a revision petition was filed being C.R.P. No. 1514 of 1931, and Madhavan Nair, J. dismissed this application holding that he cannot interfere at that stage as no final order was passed by the learned Subordinate Judge and it would be open to the parties to bring up the order in revision after he passed a final order after taking the necessary evidence. It may be stated that the evidence of the plaintiff was taken on commission between 11th September and 25th September 1932 and after the return of the commission both the petitions were taken up for hearing. The then Subordinate Judge, Mr. Parthasarathy Iyengar, made an order in and by which he directed that the plaintiff must adduce evidence first and then defendants 1, 3 and 4. In pursuance of that order I find R. Ws. 2 and 3 were examined and evidence of defendant 3 as R.W. 4 was taken in part. Against this direction by the learned Subordinate Judge while the case was proceeding, a revision petition was filed in the High Court being C.R.P. No. 1440 of 1932. Krishnan Pandalai, J. stayed proceedings of the lower Court and the said C.R.P. was taken up for hearing on 27th October 1932 and by his order bearing the said date he dismissed the C.R.P. but gave certain directions in regard to the conduct of the suit. He was of opinion that the two matters namely that covered by I.A. No. 673 of 1931 and that covered by I.A. No. 674 of 1932 must be separately dealt with and decided each on its own merits and in regard to both he made the following observation:

The petition to implead Meyyappa Chetty must be disposed of first on its own merits in which one of the matters to be considered will be whether the parties have freely and genuinely agreed to that course. The matter of the compromise, which involves first of all the fact of a valid and complete agreement free from such faults and taints as are alleged against it, and second its legal validity even if an agreement is proved are matters that will arise only if and after the party petition is allowed. For none of the parties on the record have put forward any compromise, and unless Meyyappa Chettiar is added it is difficult to see how a stranger to the record can enforce a compromise of a pending suit except of course by separate suit.

7. In my opinion this order, with great respect to the learned Judge, has caused not a little difficulty, uncertainty and confusion in the further conduct of the litigation. While taking the view that the two matters must be separately dealt with, in regard to the petition to implead a party the learned Judge directs that one of the matters to be considered should be 'whether the parties have freely and genuinely agreed to that course.' The petition to add a party to the suit, it will be seen, is one of the terms of the deed of compromise itself and was part and parcel of the same transaction as the compromise. It is not possible to comprehend how the two matters can be dissociated one from the other and how the question 'if the parties have freely and genuinely agreed to that course' could be investigated without going into the truth and validity of the compromise. Again it is difficult to understand the observation of the learned Judge 'how a stranger to the record can enforce a compromise except of course by a separate suit' with the direction that the petition to implead a party should be gone into. If the view of the learned Judge is correct the petition ought to be dismissed in limine. But however there the order stands and I find the learned Judge had the approval of the eminent counsel on both sides, at any rate counsel for the appellant because he says:

It may be pointed out and in this learned counsel for the respondent in this Court agrees that both according to sound procedure and logic the two matters must not be mixed up.

8. When the matters went up to the lower Court and were taken up for hearing, an application was made on behalf of defendant 3 to expunge his evidence from the record on the ground that he would not have given evidence in the party petition but for the fact that the enquiry in both the petitions were taken up. The learned Judge, Mr. Parthasarathy Iyengar, having regard to the directions of Krishnan Pandalai, J. that one of the matters to be considered in the party petition was 'whether the parties freely and genuinely agreed to that course' thought that the evidence in regard to the one cannot be separated from the other, that he could not in justice expunge the evidence and that the appellant must have the opportunity of cross-examining him. Against this order C.R.P. No. 1810 of 1932 was preferred and it came before Burn, J., who allowed the petition. The learned Judge thought that the request of defendant 3 was quite reasonable. He observed as follows:

Defendant 3 gave evidence in both the interlocutory applications when they were being tried together; he is quite entitled to say that if I.A. No. 673 of 1931 is disposed of first he does not propose to adduce evidence.

9. Again with great respect to the learned Judge I cannot see how it is possible to treat both the petitions compartmentally when the question to be decided is 'whether the parties have freely and genuinely agreed to that course' which necessarily raises the question whether there was a valid, effective and binding compromise. However there the order stands. This order was pronounced on 10th January 1933. Before the matter was finally taken up for hearing, a clever move was made by defendants 1 and 3. They somehow induced the plaintiff to agree to an adoption of the son of defendant 3 to her husband. She seems to have made the adoption on or about 9th February 1933 within a month after the disposal of the Revision Petition by Burn, J. Then, on 13th February 1933, four days after the alleged adoption, the plaintiff made an application for the withdrawal of the suit alleging that as she had made an adoption she had no right of any kind to her husband's estate, and the suit may be withdrawn as she does not propose to prosecute the suit and therefore the suit may be struck off the file. The learned Sub-Judge, Mr. Parthasarathy Ayyangar, was of opinion that in view of the fact that I.A. Nos. 673 and 674 were pending, he could not permit the plaintiff to withdraw the suit before they were disposed of. Against this order a Civil Revision Petition was preferred by the plaintiff being C.R.P. No. 328 of 1933 and it was heard by Sundaram Chetty and Pandrang Row, JJ. who delivered judgment therein on 9th February 1934. They were of opinion that the order of dismissal of the petition is not quite correct but that the petition should be kept pending till the other two petitions were disposed of. But in the course of the judgment they made certain observations regarding the rights of parties with reference to both the said petitions I.A. Nos. 673 and 674 of 1931. Sundaram Chetty, J. observed as follows with regard to the right, of the appellant to enforce the compromise:

If respondent 1 is a person claiming under defendants 1 and 3 within the meaning of Section 146, then the application to enforce the razinamah, which defendants 1 and 3 are entitled to make Under Order 23, Rule 3, Civil P.C., may also be made by respondent 1. If respondent 1 is an assignee of an interest in the subject matter of the suit from defendants 1 and 3 under the compromise agreement, the suit may by leave of the Court be continued by or against him Under Order 22, Rule 10, Civil P.C. The acquisition of such a right may weigh with the Court in exercising its discretion for adding him as party on his application Under Order 1, Rule 10.

10. Again he observed in respect of the alleged razinamah:

A third party, viz., respondent 1, claiming to have acquired an interest therein as an assignee, wants to be added as a party for the purpose of enforcing the compromise, while the plaintiff and the defendants on record do not wish to. have it enforced. But if there is a question common to the parties on record and a stranger, as regards the subject matter of the suit or any portion thereof, it should be tried once for all by allowing the stranger to be made a party. No other enquiry need be made in the present suit, besides the one connected with the razinamah petition Under Order 23, Rule 3. Moreover Order 22, Rule 10, Civil P.C., is not confined only to cases of undisputed assignment, creation or devolution of interest. It is open to the Court to make an inquiry and pass the necessary order.

11. It is clear from these observations that the appellant is entitled to be made a party if he can show that he claimed under defendants 1 and 3 or is an assignee of an interest from them in the subject matter of the suit. Under Order 1, Rule 10, even though the appellant was not a party to the suit by virtue of his being a party to the compromise, he is entitled to be added as a party to the suit, and for that purpose an enquiry can be made regarding the validity or otherwise of the compromise. At any rate this would seem to indicate that both the petitions must necessarily be tried together because the legality and the binding nature of the agreement cannot be gone into unless the petition I.A. No. 674 of 1931 is also enquired into. Pandrang Row, J.'s observation is as follows:

Respondent 1's application to be made a party to the suit purports to be one Under Order 1, Rule 10. It has however been contended before us that apart from Order 1 Rule 10, respondent 1 had a right to apply to be made a party Under Order 22, Rule 10, and Section 146, Civil P.C., was also relied upon in this connection, as he claims to be a person on whom the interest of defendants 1 and 3 under the compromise had devolved. It was conceded before us that not only any party to the suit but oven the legal representative of any party to the suit would be entitled to apply to be made a party for the purpose of enforcing a compromise even after the plaintiff's withdrawal of the suit. It was however contended that a transferee has not the same right, because while in the case of a legal representative his right to be made a party is absolute and the Court has no discretion in the matter, in the case of a transferee he has only a right to apply and the Court has discretion either to allow or to dismiss his application. This however is a distinction without a difference . * * * It must be noticed in this connection that respondent 1 applied to be made a party for the purpose of enforcing the compromise.

12. He observed again:

The application to be made a party was merely preliminary to the application to enforce the compromise and unless the former is decided on its merits it would not be possible to dispose of the other application which involves substantial rights.

13. In one portion of the judgment the learned Judge suggests that if respondent 1 is an assignee he is entitled to be made a party to the suit and therefore whether he is an assignee under the compromise has to be gone into. This may be deemed to accord with the view of Sundaram Chetty, J. But in another portion of his judgment he seems to indicate that the party petition must be proceeded with before the compromise petition Under Order 23, Rule 3, is proceeded with. I do not know if the learned Judge wanted that the order of Krishnan Pandalai, J. should be allowed or not. The petition Under Order 1, Rule 10 was finally taken up for hearing by the learned Subordinate Judge Mr. Krishnamacharion 18th April 1934. The learned Judge says:

The petitioner's right to maintain the application has to be considered on its merits unaffected by the consent or otherwise of the parties to the action.

14. Having taken this view the learned Judge proceeds to consider whether the plaintiff executed the documents, the compromise and the party petition under coercion and undue influence. Having decided to consider the party petition first he must therefore necessarily be deemed to have excluded all evidence in regard to matters, which according to Krishnan Pandalai, J. would arise Under Order 23, Rule 1, namely:

Whether there was an effective and valid agreement and whether it is free from such faults and taints that are alleged,

that is, whether it was obtained by undue influence, fraud or collusion. But as he was asked by the same learned Judge to go into the question whether the parties have freely and genuinely agreed to the compromise he proceeded to consider whether the party petition and the other document were obtained under coercion and undue iufluence and he came to the conclusion that the plaintiff was not a free agent when she affixed her thumb impression to Ex. A, the deed of compromise, and Ex. B, the party petition, and her consent taken under those circumstances has no legal import. He further found that:

It was expressly agreed between the parties that the papers should remain with the Rajah until the disputes were decided finally by mediators under the reference, and if contrary to the directions of the Rajah, if not on any misrepresentation which is very likely, the papers were got at by Meyappa and put into Court,

he had no right to do it. While purporting to deal with the application Under Order 1, Rule 10, he also considered the application also as having been made Under Order 22, Rule 10, and came to the conclusion that the petitioner could not be the assignee within the meaning of that rule and therefore he cannot be made a party. He further held that having regard to the subsequent adoption and the adverse attitude of the defendants he 'would exercise his discretion in not making the petitioner appellant a party to the suit. It is against this order the C.M.A. has been preferred. A preliminary objection has been taken by Mr. T.M. Krishnaswami Iyer appearing on behalf of defendant 3 that no appeal lies on the ground that the appellant had filed the application in the lower Court Under Order 1, Rule 10, and no appeal lies against an order made under that section. Mr. Sreenivasa Iyengar contends the learned Judge also dealt with the application Under Order 22, Rule 10 and he filed both a C.M.A. and a C.R.P. When both the matters came on for admission before Burn, J. he admitted the C.M.A. taking the view that an appeal lay and dismissed the C.R.P. on the ground that in view of the fact that an appeal lies no revision can lie. It would have been better if the learned Judge had kept both of them on the file, but as it is, there is only the appeal before me. Mr. Sreenivasa Iyengar stated that he would argue this appeal on the footing that the application is sustainable Under Order 22, Rule 10 but should he fail to convince me in regard to that he would request that the appeal may be treated as a revision petition against an order made Under Order 1, Rule 10 and that he would satisfy me that the application made by his client is sustainable also under the said rule. It seems to me, on reading the judgment of the lower Court, the learned Judge, though he purported to deal with the application Under Order 1, Rule 10, still he proceeded to treat the application as having been made also Under Order 22, Rule 10. I will first deal with the matter on that footing. It seems to me that when the learned Judge took up the matter for final hearing he was bound to have followed either the course indicated by Krishnan Pandalai, J. or that indicated by Sundaram Chetty, J. I do realize that in following the course indicated by Krishnan Pandalai, J., one is naturally placed in considerable difficulty in following the directions indicated by that learned Judge.

15. The learned Subordinate Judge has followed neither the one nor the other. In doing so I am inclined to agree with Mr. Sreenivasa Iyengar considerable prejudice has been caused to his client in regard to the finding relating to fraud and coercion and the incomplete nature of the agreement arrived at by the learned Judge. The learned Judge having elected to deal with the matter Under Order 22, Rule 10 and proceeded to inquire into the question whether there was a binding compromise and whether it was arrived at by the plaintiff as a free agent having independent advice free from undue influence or coercion, it was his bounden duty to have intimated to the parties and called on them to let in all the evidence they can relating to this matter. When the learned Judge proceeded to deal with the matter the state of the record was this: The evidence on behalf of the plaintiff was taken in regard to both the petitions but before the evidence was concluded there was a direction by the High Court that both the matters must be dealt with compartmentally. It was on this footing that the evidence of defendant 3 was expunged from the record. The plea of the plaintiff, if closely analysed, is a two-fold one: (1) a plea of non est factum, that is, that she affixed her signature to Exs. A and B believing that it dealt with a matter relating to Kumbabhishekam and not that it purported to be an arrangement relating to compromise, and (2) that she had no independent advice in the matter and that she was led to sign the document which she did under fraud, misrepresentation and coercion. As to the plea of non est factum, so far as I can gather from the judgment of the learned Subordinate Judge, it has not been found in favour of the plaintiff though he specifically does not deal with it.

16. In one portion of the judgment he contents himself with the remark: 'It is doubtful if it is wholly true.' But in regard to the other questions though the learned Judge has found in her favour, on the present state of the evidence having regard to the course the proceedings took, it will be difficult to sustain the findings. Relevant evidence has not been let in. In my opinion the evidence of disinterested persons like Rajah Sir Annamalai Chetty, K.V. Ramaswami Iyer, V.S. Lakshminarayana Iyer, will be very material in arriving at the truth of the pleas raised by the plaintiff and defendants 1 and 3 as to the legality and validity of this compromise. Their evidence would be absolutely material and one or the other of the parties would have let in the said evidence if the parties understood that a finding as to these matters will be given. But as it is the parties must be deemed to have been misled, no doubt partly owing to the conflicting orders which led the Court and the parties to believe that such evidence will not be taken in the party petition which was being enquired into first. Therefore the findings in regard thereto must be set aside. I should have been disposed to remand this matter for necessary evidence being taken had it not been for the fact that I am not allowing this party petition on the other grounds.

17. Apart from any question as to the truth or validity of the compromise, the question is whether the appellant fulfills the requisites required Under Order 22, Rule 10 in order to enable the Court to implead him as a party to the suit. Has there been an assignment, creation or devolution of interest within the meaning of Rule 10? 'Interest' means interest in the subject matter of the litigation. The words 'has come or devolved' connote interest in prasenti. It must be vested in the applicant on the date of the application to implead him a party to the suit and not merely contingent. On a careful reading of the compromise I am of opinion that there was no transfer of any interest in favour of the appellant in the estate which was the subject matter of the said suit and compromise. So far as defendants 1 and 3 are concerned, it may be that the deed was intended to operate as a present surrender of the estate and a consequent vesting thereof in defendants 1 and 3. But so far as the appellant is concerned, it is only an agreement to convey one-third of the estate which was vested in them. No doubt Under Clause 8 in regard to the properties which were allotted to the plaintiff there was a contingent interest created in favour of the appellant. But in my opinion that would not be enough to enable the plaintiff (appellant?) to come on record because no interest has come to or devolved on the plaintiff (appellant?) within the meaning of Order 22, Rule 10. Therefore if the application of the appellant is viewed purely as one Under Order 22, Rule 10, it is unsustainable. The next question is whether Under Order 1, Rule 10 the applicant will be entitled to ask the Court to make him a party thereto. Under the said rules before the Court can exercise its discretion the presence of a party must be felt by the Court to be necessary to enable it to effectually and completely adjudicate upon and settle all the questions involved in the suit. The words 'all the questions involved' in the rule have been variously interpreted. In Vaithalinga Pandara Sannidhi v. Sadasiva Iyer : AIR1926Mad836 , Srinivasa Iyengar, J. was inclined to think that it only relates to questions between the parties to the litigation, but a different view was taken in Vaidhyanadayya v. Sitaramayya (1878-80) 5 Mad 52. There Turner, C.J. observed:

To accept the more restricted interpretation involves the addition of words which we do not find in the section, namely, between the parties to the suit, and. there can be few if any questions. . which cannot be determined between the parties to the suit one way or the other, and of which the determination, if they be material, will, as between the parties to the suit, not be final. On the other hand, the interpretation warranted by the terms would enable the Court to avoid conflicting decisions on the same question which would work injustice to a party to the suit, and finally and effectually to put an end to litigation respecting them.

18. The underlying principle regarding the addition of parties is that there must be finality to litigation, and to secure that purpose it would be incumbent upon the Court to add a party whose presence would be necessary to put an end to all the controversy in the litigation finally. This is the view taken by a Division Bench of this Court in Seethai Achi v. Meyyappa Chettiar : AIR1934Mad337 , in this very case where Sundaram Chettiar, J. relying on Vaidhyanadayya v. Sitaramayya (1878-80) 5 Mad 52 observed:

If there is a question common to the parties on record and a stranger, as regards the subject matter of the suit or any portion thereof, it should be tried once for all by allowing the stranger to be made a party.

19. This is also the view taken by Venkatasubba Rao, J. Secy. of State v. Murugesa Mudaliar : AIR1929Mad443 . This in my view would be the correct interpretation of the rule. Now, is the question whether a suit has been terminated by a valid compromise a question involved in the suit? Ordinarily a suit must be tried on a cause of action alleged in the plaint and on the state of facts on the date of the institution of the suit. Viewed from that standpoint it cannot be said that whether a suit has been terminated by a compromise subsequent to the institution of the suit is a question involved in the suit. But it seems to me that it would be taking a narrow view of the rule. Further it is not a rigid rule that a suit must be tried only on the state of facts existing on the date of the suit. The Court very often has to take notice of events which happened subsequent to the institution of the suit and mould relief according to the state of circumstances existing on the date of the decree. When a suit has been adjusted by a valid compromise and it is brought to the notice of the Court, as has been held in Vijayanagram Maharajah v. Sitarama Raju (1896) 19 Mad 100, the Court is bound to raise an issue whether the suit has been adjusted by a valid compromise and proceed to determine it. In that case the learned Judges, Collins, C.J. and Benson, J., observed thus

When the defendants alleged a compromise for consideration in the course of the suit and the plaintiffs denied it, an issue arose between them and the District Munsif was right to record it and determine it, so as to enable him to deal with the suit Under Section 375, Civil P.C.

20. By reason of subsequent events the issue as to compromise has become a question involved in the suit. If in regard to that matter in the opinion of the Court the presence of a third party would be necessary to enable it to effectually and completely adjudicate that issue it is open to the Court to do so. Viewed even on that footing it would be difficult to maintain that the mere addition of the appellant would enable the Court to effectually and completely adjudicate the question as to compromise. The Court cannot forget to notice the fact that the plaintiff had made an adoption before the compromise was made a decree of the Court. When the compromise itself is impeached on one ground or other by either party to the litigation and none of the parties seeks to enforce it, I do not think it would be a proper exercise of discretion at the instance of a third party who alleges that he has acquired rights thereunder to make him a party for the purpose of enforcing the compromise especially in the view I have taken that there is no transfer of any interest in the subject matter of the litigation in his favour. The matters relating thereto can and ought to be properly determined in a suit. Further I find a suit has been instituted by the appellant for a declaration that the compromise is binding on all the parties to the said suit and wherein the adopted son is also a party and the necessary issues have been framed thereunder. Mr. T.M. Krishnaswami Iyer on behalf of defendants 2 and 3 has also intimated to me that in regard to none of the issues raised in the said suit his clients would press the plea of res judicata. As therefore all the questions relating to the compromise will be gone into in the suit and the appellant's rights thereunder will be declared, I am not inclined to accede to the request of Mr. Sreenivasa Iyengar to implead his client as a party defendant Under Order 1, Rule 10, Civil P.C. In the result the Civil Miscellaneous Appeal fails and is dismissed with costs.


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