1. The second defendant appeals. The suit out of which the appeal arises were laid in forma pauperis by respondents 1 to 3, who were minors and were represented by their next friend and mother Kamalammal, for partition and a separate possession of their 3/8th share in the suit properties with mesne profits and costs. Sadagopan, who is no other than the father of the plaintiffs (respondents 1 to 3) was impleaded as the first defendant (fourth respondent) herein. Nallathambi Goundan. the appellant, figured as the second defendant in the suit.
2. The facts leading to the institution of the suit may be briefly stated: Vijayaraghavan, Venkatesan and Ranganathan, the plaintiffs in the suit, are the three sons of Sadagopan, the first defendant, whose father Venkatesa Iyengar instituted two suits O. S. 2 and 26 of 1945 on the file of the Sub Court Salem, for specific performance of two agreements of sale in respect of the suit properties, One agreement related to a portion of the suit properties and had been concluded between Venkatesa Iyengar and Ramaswami Gounder, the father of Nallathambi Gounden, the second defendant in the suit. The other agreement related to the remaining portion of the suit properties and was concluded between Venkatesa Iyengar, on the one hand, and one Perumal Chetti, on the other. Before the trial of the suits commenced. Venkatesa Iyengar died and his son Sadagopan impleaded himself as the second plaintiff in both the suits and continued the suit as the legal representative of his deceased father. Ramaswami Gounden, the father of the second defendant also died pendente lite with the result the second defendant was impleaded as heir of Ramaswami Goundan and the suits were proceeded with. The trail Court dismissed both the suits. Thereupon, Sadogopan preferred A. S. 186 of 1947 and A. S. 12 of 1948 on the file of the High Court. By judgment dated 11-1-1950. a Bench consisting of Govinda Menon and Basheer Ahmed Sayeed. JJ., allowed both the appeals--vide Ex. A--1--with the following observations--
"In view of what we have stated above and our finding in regard to the genuineness of Exs. P-1 and P-2 and the failure on the part of the plaintiffs (Venkatesa Iyengar and Sadagopan) to prove payment of consideration we set aside the decrees of the learned Principal Subordinate Judge of Salem and direct the first, second and third defendants in O. S. 2 of 1945 (Perumal Chetti and Nallathambi Goundan respectively) to transfer. convey and assign the one half share of all the suit properties in favour of the present appellant (Sadagopan) on receipt from the appellant (Sadagopan) of the sum of Rs.1930 and Rs. 536-4-0 being half the consideration paid to Court for the purchase of the suit properties and to deliver possession of the said half share of the properties to the present appellant (Sadagopan after partition and also to execute the necessary documents to effectuate the said transfer. We further direct that each party will bear his costs throughout and that there will be no claim for either party in respect of the mesne profits."
Nallathambi Goundan, the second defendant in this suit, preferred appeals to the Supreme Court in C. As. 15 and 16 of 1954 against the said judgment of this Court. But both the appeals were dismissed by the Supreme Court on 21-11-1958. Meanwhile, Sadagopan applied in I. As. 19 and 73 of 1954 to the Sub-Court, Salem, for the grant of final decree after division of the suit properties, into two equal moieties and allotment of one such equal moieties and allotment of one such moiety to him. In these applications, he also prayed for ascertainment of the mesne profits. A Commissioner was appointed by the Sub-Court. Salem, in these final decree could be granted, the proceedings were stayed pending disposal or the appeals filed in the Supreme Court. According to the plaintiffs, though the Supreme Court dismissed the appeals on 21-11-1958 information of dismissal was received at Salem only on 24-11-1958. The very next day, a document was presented for registration before the Sub-Registrar. Omalur whereby the first defendant, was alleged to have received from the second defendant a sum of Rs.5,000/- in cash and 10 acres of land. and relinquished his claim to the rest of properties and to mesne profits and costs. The suit properties are about 103 acres in extent. Besides a right to a half share therein. Sadagopan was also entitled on account of his half share of mesne profits, to a sum of Rs.17,938 for the period from 1-4-1950 up to 15-12-1958 at the rate of Rs.4,120/- per annum. The complaint of the plaintiff was that the second defendant, taking advantage of the fact that Sadagopan was not endowed with sufficient education or intelligence. fraudulently and collusively obtained a release deed from him and filed applications in the two suits on 1-12-1958, praying for the grant of final decrees in accordance with the terms of the release deed, and with the such decrees on 31-1-1959. It was also the complaint of the plaintiffs that Sadagopan neglected to support his wife and children and was living away from them during the five years preceding the date of the release. the relinquishing the date of the release. The relinquishment effected by Sadagopan was detrimental to the interests of the plaintiffs and was not binding upon them. Consequently, the plaintiffs prayed (1) for a declaration that the final decrees passed in the aforesaid suits and orders recording full satisfaction of the final decrees were fraudulent and collusive and void and not binding on the plaintiffs; (2) for a decree setting aside the same; and (3) for partition and separate possession of the plaintiffs three-fourths share out of the half share in the family properties and for payment of interim mesne profits of Rs.13,553/- and future mesne profits at the rate of Rs.1,545/- per year from the date of suit till delivery of possession.
3. In their separate answers (prepared by the same counsel), the first defendant (Sadagopan) and the second defendant (Nallathambi Goundan), attacked the plaintiff's claim as false and unsustainable and as not being for the benefit of the minor plaintiffs. In the first defendant's answer the plaint allegation that the first defendant was not endowed with sufficient education or intelligence was vehemently denied. Though the first defendant admitted that the plaintiffs were living in their maternal grandfather's house along with their mother for the previous five years. he asserted that they used to visit him now and then. The plaint allegation that the half share in the suit properties would be worth Rs.50,000/- was denied, and the allegation that the annual mesne profits from the suit properties would come to Rs.4,120/- was characterised as an exaggeration. though the fact that the first defendant would be entitled to mesne profits from 1-4-1950 was admitted. As some of the lands were in possession of the third parties and the other lands were in possession of the second defendant's tenants, the first defendant felt that he could not get actual possession with out taking legal proceedings against third parties and the other tenants. Further, the lands were not in good condition on account of the prolonged litigation and several acres of lands were uncultivable and the first defendant was not in a position to reclaim the same and bring them under cultivation. According to the first defendant, after taking these factors into consideration, he agreed to receive five acres of the best garden lands and five acres of very good dry lands which could be brought under garden cultivation and cash of the Rs.5,000/-. Further, under the compromise the first defendant became entitled to receive back the amount of Rs.2,500/- deposited by him in the Sub-Court for specific performance of the decree. Respectable Panchayatdars inspected the properties, took all relevant factors in to consideration and effected the settlement which was bon fide and prudent in the circumstances of the case. Further, the first defendant did not conduct the suits in the Sub-Court as the manager of the joint family. If he did, the compromise entered into by him would be binding on the plaintiffs.
4. The second defendant contended inter alia that the final decrees in O. S. 2 and 26 of 1945 and the orders recording full satisfaction of both the decrees were not the result of fraud or collusion and had become final and blinding upon the plaintiffs who were disentitled to question the same.
5. The learned Subordinate Judge held. upon a consideration of the entire evidence (1) that the first defendant had inherited from his father the right to enforce specific performance of the agreement of sale and that right which ripened into two decrees for half share in the suit properties was undoubtedly ancestral property, in which the plaintiffs acquired a three-fourths share by birth; (2) that taking all the circumstances into consideration, Ex. B-1, the release deed executed by Sadagopan in favour of Nallathambi Gounder was highly prejudicial and detrimental to the interests of the plaintiff, that it did not embody a bona fide transaction. but was the result of fraud and collusion between the defendants 1 and 2 and had conferred no benefit upon the plaintiffs; and (3) that the applications made by the defendants 1 and 2 to record satisfaction of the final decrees were also vitiated by fraud and collusion and, therefore not binding on the plaintiffs. In the result, the trial Court granted a decree as prayed for with costs and directed that mesne profits be ascertained at the time of the final decree and that the defendants should pay the court-fees due to the Government.
6. It is against this decision that the present appeal has been filed.
7. Before investigating the true scope and effect of Ex B-1. the registered partition release deed executed by Sadagopan (the first defendant) and Nallathambi Gounden (the second defendant) on 24-11-1958, it is necessary to examine the antecedents of the parties and the relationship inter se between Sadagopan and the members of his family. on the one hand and between Sadagopan and Nallathambi Gounden. on the other, at the time of Ex. B-1...........................................
(After discussing the evidence in the case, his Lordship proceeded):
Thus, it will be seen that the compromise is invalid and would not be binding upon the plaintiffs because (a) defendants 1 and 2 colluded to defraud the sons of the first defendant or (b) the first defendant himself was not a free and voluntary party agent and his illiteracy and helplessness had been fully exploited by the second defendant and the second defendant was also guilty of fraud and misrepresentation or (c) the compromise. in any event, is not for the benefit of the family, but is prejudicial to the interests of the plaintiffs in as much as, under the compromise, the family had been deprived of their 4/5ths share in the properties. without being conferred any corresponding benefit.
8. Evidently, the second defendant knew that any delay in implementing this inherently unfair transaction would expose it to attack from he children of the first defendant and even from the well-wishers of the first defendant. That is why, on 1-12-1958. he had a joint application prepared, in each suit as per Ed. A-6 and A.10. in which it was prayed that in view of the settlement dated 24-11-1958. full satisfaction of the decree be entered. It was also alleged in the petitions that by virtue of the said compromise, a division of the properties in the suit had been effected as per the panchayat settlement and separate possession had been given to the plaintiffs. It is noteworthy that these joint applications have been signed only by Sadagopan and Nallathambi Gounder, and not by P. W. 5, who was the advocate of Sadagopan in these very proceedings. It is not explained why these petitions should have been presented behind the back of the first defendant's advocate who was on record and who had been taking enormous interest in the conduct of this long-protracted litigation. His evidence shows that it is only because of the great personal interest which he took that he was able to persuade the relatives of Sadagopan to render financial assistance in the conduct of the appeal before the High Court and the proceedings in the Supreme Court. But for the valuable help rendered by P. W. 5. it would not have been possible for Sadagopan to successfully carry on this litigation. The evidence of P.W. 5 at pages 73 and 75 shows that it is only on 24-11-1958, he came to know that the litigation ended in favour of Sadagopan and the Supreme Court appeals were dismissed. The successful manoeuvre of the second defendant and his partisans in keeping P. W. 5 out of the picture in the matter of the settlement shows that the first defendant was not a free and voluntary agent and he was in the complete grip of the unscrupulous second defendant. That the dominating influence which the second defendant exercised over the first defendant oft he written statement of the first defendant, in which the first defendant is tutored to make the extraordinary statement that it was only on account of the influence of P. W. 5 over the first defendant and the plaintiffs, that the matter could be compromised. The following portion in the written statement betrays the fraudulent conduct of the second defendant i.e., how he saw to it that there was no contact between the first defendant and (P. W. 5) his counsel.
"In fact the learned Judges of the Supreme Court adjourned the case on certain occasions advising the parties to compromise the matter and (it) could not be compromised then, on account of the dominating influence which these plaintiffs; counsel had over his defendant and the conduct (counsel) for the plaintiffs wanted to wreak his vengeance against the second defendant herein who is not on good terms with him and he did not allow this defendant to live a peaceful life".
Unfortunately for the defendants, the office of the Subordinate Judge. Salem. returned their petitions on 6-12-58. On e of the objections raised in the return was that the advocate on record had not signed the applications. These petitions were represented on 31-1-1959 by the advocate for the second defendant. who signed the endorsement of representation, and said that the signature of the advocate was not necessary because both the parties personally appeared and presented the petitions. In these circumstances, the second defendant's advocate Mr. K. Srinivasaraghavan urged the Court to excuse the delay in the representation of the petitions and to pass orders forthwith. The learned Subordinate Judge. Salem. readily obliged Mr. Srinivasaraghavan by recording the compromise straightway on 31-1-1959 itself. We think that this order was unfair in view of what had happened in the meantime. On 12-12-1958. P. W. 5 who was till then appearing for the first defendant. was approached by the wife and children of the first defendant. at whose request he filed an application (Ex A-15) in O. S. 2 of 1945 and another application (Ex. A-17) in O. S. 26 of 1945, praying that the three sons of the first defendant be added as petitioners in the final decree applications. In support of these applications (Exs. A-15 and A-17) affidavits (Exs. A-16 and A-18 respectively) were filed by Kamala, the wife of Sadagopan and the mother of the plaintiffs herein. In those affidavits it was alleged that owing to misunderstandings between the first defendant and his wife Kamala, the later had been living with her children in her father's house at Dhankanikottai for the past five years and during that period of five years, there was no connection whatsoever between the first defendant, on the one side and his wife and children on the other, and that the first defendant had been acting during that period in hostility to the interest of his minor children. The affidavits further alleged that though by virtue of the Supreme Court judgment dated 21-11-1958, the first defendant had become entitled to 52 acres of Punjab and nanja lands and to mesne profits and cost of the tune of Rs. 15,000/- the first defendant had executed a deed accepting ten acres and a sum of Rs.5,000/- in full quit of his share and had filed even memos along with the second defendant for recording full satisfaction of the decree. Paragraph 7 of the affidavits asserted that the release deed and the satisfaction memos represented fraudulent transactions and were not binding upon the minor sons of the first defendant. In these circumstances, Kamala prayed that her minor sons be impleaded as parties to the final decree proceedings and thereby enabled to preserve their estate against the fraudulent proceedings of the first and the second defendants. P. W. 5 signed Exs. A-15 and A-17 on 12-12-1958 and gave notice of the same to Mr. K. Srinivasaraghavan who was on record as advocate of the second defendant in those proceedings. But Mr. Srinivasaraghavan without canceling his vakalat, made an endorsement on each of the petitions, Exs. A-15 and A-17, to the following effect:--
"I have not got the address of the client, He has not been coming to me. So I request that notice may be taken to the party for whom I had put in appearance previously".
This dodging endorsement illustrates the paltry kind of court-craft resorted to by the second defendant's advocate evidently at the instance of the second defendant, who must have been anxious to get the unfair compromise recorded without having to face the inconvenient applications filed by P. W. 5 on behalf of the minor-sons of the first defendant. Exs. A-15 and A-17 show that though they were presented by P. W. 5 into Court on 13-12-1958, they were being returned by the office for some reasons or other, and they were being represented by P. W. 5 with dogged pertinacity. It appears from the seals of Exs. A-15 and A-17 that they were represented first on 2nd January 1959 then on 16th January 1959 and again on 31st January 1959, that is to say on the very day Mr. K. Srinivasaraghavan, the advocate for the second defendant, represented Exs. A-6 and A-10 requesting that the compromise might be recorded even though the signatures of the first defendant's advocate had not been affixed on the 31st January, 1959, we have the evidence of P. W. 5. According to him, he was present in court when Mr. Srinivasaraghavan represented Exs. A-6 and A-10. At that time, P. W. 5 represented his petitions Exs. A-15 & A-17 in open Court, whereupon Mr. Srinivasaraghavan opposed these applications stating that he had no locus stand to oppose the compromise. The learned Subordinate Judge took a course, which in our view is most improper. He first passed orders on 31-1-1959 recording the compromise in pursuance of Exs.A-6 and A-10 and he refrained from passing any orders on Ex A-15 on 6-2-1959 and passed an order to the following effect:--
"The main petition has been disposed of. The petition is therefore rejected". Above this order, we find the office note to the following effect:
"This is an application by the minor sons of the plaintiff represented by their next friend mother to bring them on record and implead them as parties to final decree petition.
I. A No. 19 of 1953 in O. S. 2 of 1945: (I. A. 19 of 1953 is a mistake for 73/63). Final decree recording full satisfaction was passed in I. A. 73 of 1953 as per memo filed by both parties on record. No proceedings pending".
This note of the office saved the Court from the trouble of going into the merits from the trouble of going into the merits and solving the inconvenient problem presented by the first defendant's sons. But the ingenious procedure adopted by the Court is most irregular and unjust.
9. The Sub-Court failed to appreciate another crucial aspect. This suit by the plaintiffs impugning Ex. B-1 and claiming partition and separate possession of their share had been filed even on 15-12-1958. i.e., about one and a half months before the compromise was recorded. The effect of the institution of the suit for partition. when ultimately decreed, would bring about a division in status from 15-12-1958 and that is all the more reasons why the Court should have impleaded the plaintiffs in the two suits. O. S. 2 and 26 of 1945. The second defendant, who must have learnt of the institution of the suit for partition, must have realised the vital changes that had taken place in the family between 1-12-1958 the date on which the memo for recording the compromise was filed and 31-1-1959. the date on which the Court recorded full satisfaction of the decree. The lower Court overlooked the fact that it was clearly open to the plaintiffs to resist the passing of the compromise decree instead of being obliged to file a separate suit to set aside the same, thereby giving rise to unnecessary multiplicity of proceedings and avoidable expense. It was the clear duty of the Court to have impleaded the plaintiffs as parties, exercising its jurisdiction under Order 1. Rule 10 and its inherent powers under Section 151, Civil P. C. Under order XXIII. Rule 3, Civil Procedure Code, the Court must be satisfied that the compromise is a lawful compromise. How could this compromise be said to be a lawful compromise when it rested upon a fraudulent device to shut out and keep away persons who were vitally affected by the compromise from placing their points of view before the Court? It is not the mere filing of the application to record the compromise but it is the stroke of the judicial pen entering full satisfaction of the decree, that would terminate the suits, and before that stage was reached, the plaintiffs had a right to be impleaded (vide:Nanjammal v. Eswaramurthi Gounder, 1954-I Mad L J 530=(AIR 1954 Mad 592). Had the court impleaded the minor sons of the first defendant and heard their objections to the compromise it would have easily seen that the compromise was totally lacking in bona fides and was patently injurious to the interests of the minor sons of the first defendant and would therefore have refused to record the compromise not he ground that it was not a lawful compromise, within the meaning of Order XXIII, Rule 3, Civil P. C. The subterfuge and the dilatory tactics adopted by the second defendant in refusing to face the petitions filed on behalf of the minors and the suspicious hurry with which he proceeded to secure an order of the court recording the compromise would only serve to underline his consciousness of the infirmities which attached to Ex. B-1 and which have been thoroughly exposed in these proceedings.
10. It is, however, contended on behalf of the second defendant that the mere right to sue for specific performance of an agreement of sale is not property much less joint family property, in which the plaintiffs could have acquired any right by birth. An illuminating discussion of what is property is to be found in a judgment of the Division Bench of the Allahabad High Court reported in Bansgopal Shoe Narain v. P. K. Banerji ILR (1949) All 746-(AIR 1949 All 433). There it was held that the claim fro damages for breach of contract, which was the subject-matter of the suit in that case, was property. It was also pointed out in that case that all properties need not be transferable or attachable and saleable and even heritable and that we should keep the idea of the property distinct from the idea of transferability or attachability of heritability. In this case, Venkatesa Iyengar, the paternal grandfather of the plaintiffs had entered into a contract of sale in respect of the suit properties. Under that contract, he acquired a right not merely to sue for damages for breach of contract but a right to enforce specific performance of the contract of sale of immoveable property. This right he enforced by instituting two suits and upon his death pendente lite his son Sadagopan got himself impleaded as his legal representative and continued the suits, in which he was ultimately granted decrees of land on payment of about Rs. 2,500 to the opposite parties. This amount of Rs. 2,500 was paid, not by Sadagopan, but by Srinivasaraghavan, the brother-in-law of Venkatesa Aiyangar, who was the first defendant and who paid the same for the benefit of the plaintiffs. The right to get an undivided half share in the suit properties. Which descended from Venketesa Iyengar to Sadagopan was certainly property., which in the hands of Sadagopan vis-a-vis Sadagopan's sons. was ancestral property. In Ananda Behera v. State of Orissa, , even profit a prendre has been held to be immovable property. The right in question is certainly property, no matter whether it is moveable or immovable. When once such property has descended from father to son. it becomes impressed with the character of ancestral property in which the son's sons are entitled under the Hindu Law to claim a share by birth. We, therefore, repel the contention of the learned counsel for the appellant and hold that the properties dealt with under Ex, B-1 were not the separate properties of the first defendant. but properties belonging to the joint family of the first defendant and the plaintiffs herein.
11.It is next contended that Ex-B-1 represents a settlement of disputed rights and ought not therefore to be regarded and attacked as an alienation or as a surrender effected by the father manager of a joint family. It is true if Ex. B-1 had been entered into during the pendency of the appeals in the Supreme Court, we would be guided by different considerations while judging the property of Ex.B-1. Having regard to the uncertainties involved in litigation and having regard also to the fact that the Supreme Court had advised the parties to enter into a settlement, the first defendant might have with greater justification, entered into a transaction of this type during the pendency of the litigation, surrendering valuable rights which he had acquired under the decrees in the High court, and in a spirit of give take. But Ex. B-1 was entered into, not during the pendency of the litigation before the Supreme Court, but after the termination of the litigation and after the termination of the litigation and after the highest Court in the land had set its seal of approval and finality to the decrees granted by this court in favour of the first defendant entitling him to an undivided share in the entirety of the suit properties. There was, therefore, no element of uncertainty of unpredictability about D-1's rights when he entered into an arrangement under Ex.B-1with the second defendant. His rights has become irrevocably crystallised under the Supreme Court's decrees, and the only thing that remained was to work out his rights by pursuing the final decree proceedings. Which he had already initiated in the trial court. The cost of the final decree proceedings would be as nothing in comparison, with the costs already incurred in the suits. There was, therefore, no settlement of any bona fide dispute involved at the time Ex.B-1 was executed ; nor was there any justification for the first defendant to surrender to, and sacrifice in favour of, the second defendant 40 out of 50 acres of lands he and his family had become entitled to under the Supreme Court's decrees. The surrender was a gratuitous surrender and brought no benefit to the joint family of the first defendant. It was both imprudent and mala fide, brought about either by the second defendant imposing his will upon the first defendant to the detriment of the latter and his sons or as a result of the fraudulent collusion between the first and the second defendants to the detriment of the plaintiffs, whose interests were totally overlooked or disregarded.
12.On the merits, we are clearly of the view that the compromise arrangement. Ex.B-1 followed by the joint Memo, Ex.A-10, dated 1-12-1958, which was filed into court, and on the basis of which the court passed and an order recording full satisfaction of the decree in the partition suit, O.S. 2 of 1945, were vitiated by fraud and collusion and that the arrangement, Ex. B-1, was mala fide, imprudent and highly detrimental to the interest of the plaintiffs and that it was a virtual surrender and relinquishment of valuable rights of the plaintiffs in the properties. It is therefore unnecessary to refer at length to the arguments advanced by counsel on both sides and the decisions cited by them as to the circumstances under which the junior members would be entitled to question the validity and the binding nature of a decree passed by consent on an arrangement entered into by the father as representative of the family. The law on this aspect is well settled; even so, we shall make a brief reference to the same.
13. Learned counsel for the appellant urged that in entering into the compromise, the father, Sadagopan, at the most, can only be said to be guilty of negligence, in not prosecuting the final decree proceedings to the end and that even if the compromise and the order recording full satisfaction were vitiated by the gross negligence of the father, it would still be binding upon the sons of Sadagopan. Particular reliance was placed upon two Bench decisions of this court reported in Krishnamurti v. Chidambaram Chetti, 1946-1 Mad LJ 58 = (AIR 1946 Mad 243). The Privy Council settled the law in Lingangowda v. Basangowda. ILR 51 Bom 450 =(AIR 1927 PC 56) to the effect that if a decree is obtained against the managing member of the joint family, it would be binding upon all the junior members under Section 11. Explanation V1, Civil P.C. In 1946-1 Mad LJ 58 = (AIR 1946 Mad 243) a Bench of this court held that the decree obtained against the Hindu father who was sued as managing member of the joint family was binding on the junior members and cannot be set aside on the ground that the father was grossly negligent in the conduct of the suit. The principle of this decision and the principle of the decision of the Privy Council in ILR 51 Bom 450 = (AIR 1927 PC 56) were applied in the decision in Nagamma Shedthi v. Korathu Hengsu, to a case of a decree
obtained against the karnavan of a family tharwad or the kartha of an Aliyasanthana family, in this Bench decision it was held that the karnavan must be deemed to have litigated in good faith or bona fide within the meaning of Section 11 Explanation V1, C.P code on behalf of all the junior members of the tarwad as well and representing them. This Bench decisions far from advancing the contention of the appellant, is really against him. A perusal of the discussion in the said decision shows that, if the proceedings are vitiated by fraud and collusion and bereft of bona fides and good faith, and not by mere negligence, however gross the position would be different. The capacity of the head of the family to effectively and validly represent the junior members of the family under the personal law read along with Explanation V1 to Section 11. P.C Code could avail the other party to the litigation, only if there is no fraud or collusion and the managing member has acted with bona fides and in good faith. The Bench pointed out that, while negligence, even if it be gross negligence, would not be a ground for setting aside a decree, the character of the gross negligence in such cases may itself be evidence of fraud and collusion and the junior members can seek to set aside the decree, if they make out fraud and collusion.
14. In the instant case, the decree is not a decision on the merits, but it is based upon a compromise between the parties, and so, there is no question of res judicata. On the question that the compromise decree does not operate as compromise decree does not operate as res judicata within the meaning of Section 11 C. P Code, it is sufficient to refer to two recent decisions of the Supreme Court. In Subba Rao. v. Jagannadha Rao. . while dealing with the incidents of a compromise decree. it was observed as follows :
" A compromise decree is not a decision by the court. It is the acceptance by the court of something to which the parties had agreed. A compromise decree merely sets seal of the court on the agreement of the parties. The court does not decide anything. Nor can it be said that a decision of the court was implicit in it. Only a decision by the court can be res judicata whether statutory under Section 11 C.P Code or constructive as a matter of the public policy on which the entire doctrine rests. Such a decree cannot strictly be regarded as a decision on a matter which was heard and finally decided and cannot operate as res judicata. Such a decree might create an estoppel by conduct between the parties., but such an estoppel must be specifically pleaded."
The same principle was reiterated in Baldevas v. Filmistan Distributors. and it was held that a consent decree
does not operate as res judicata because the content decree is merely the record of a contract between the parties to a suit, to which is superadded the seal of the court and that the matter in contest may operate as res judicata only if there is an adjudication by the court on the merits, and that the terms of Section 11 C.P leave no scope for a contrary view. The validity and the binding nature of Ex. B-1 will have, therefore, to be adjudged on the basis that it is a compromise entered into between the managing member of the joint family and a third party. It is beyond dispute that,. whether it is dispute outside the court or a dispute in a pending litigation, the managing member has undoubted authority and power to settle the dispute, by a compromise. As the managing member stands, in a fiduciary relationship with the other members of the joint family and as he is acting on his own behalf and on behalf of the other members of the family, his authority to enter into a compromise is not unqualified and unlimited. It is the peculiar position which clothes him with the power to enter into compromise and it is the very same peculiar position which imposes certain limitations upon the exercise of that power. He has not the same freedom in entering into a compromise as in a case in which he presents none but himself and deals with his own separate properties. When he acts as the managing member of a joint family, he must enter into the compromise with bone fides and it must be for the benefit and advantage of the family as a whole. Both the conditions must be concurrently satisfied, i.e., the managing member must act with bona fides and, at the same time, the compromise must secure some demonstrable benefit and advantage to the family; under the compromise the managing member cannot give up or relinquish substantial rights of the members of the family. The compromise must be prudent, and the merits of the rival claims of both the parties, the family on the one side, and the third party, on the other, should be such as to warrant a settlement to avoid the risk of the family or the third party being prejudicially affected in the event of the litigation running its full course. The managing member cannot enter into a capricious compromise or for his own personal law confers upon him the authority to enter into a compromise. We may, in this connection, refer to the statement of the law in Mullah's Hindu Law, 13 th Edn. at page 283, paragraph 248 and Mayne's Hindu Law and Usage, 11th Edn. at page 391, para 310. A survey of some of the relevant decisions shows that the tests which are applied in judging the validity of an alienation by the managing member of a joint family have been applied while judging the validity and the binding nature of compromise. In Pitam Singh v. Ujagar singh (1875-77) ILR 1 All 651 (even though, on the facts of that case, the court held that the compromise would be binding on the junior member), it was pointed out that the compromise would not be binding upon the junior member if it was vitiated by fraud and collusion or if it was proved that it was not prudent for the manager to have put an end to the litigation by a compromise if the merits of the claim did not warrant such a course to be adopted by the manager i. e., in the sense it was not for the benefit of the family. In Dwaraka Das v. Krishan Kishore, ILR 2 Lah 114-(AIR 1921 Lah 34) the authority of the managing member of the joint family to enter into a compromise came in question. Where a reference of the dispute to arbitration resulted in an award. A perusal of the discussion shows that the reference to arbitration must be entered into in good faith and the compromise should not be vitiated by fraud or collusion or by any other good reasons to the contrary, in the sense that there must be sufficient ground for the managing member to resolve upon a settlement having regard to the nature of the claim and the litigation. The Bench points out that the compromise would be binding in the absence of fraud, collusion or undue influence or other like reason. In Dangal Ram v. Jaimangal Saran, ILR 5 Pat 480 = (AIR 1926 Pat 364) it was pointed out that the compromise resulting in a partition arrangement cannot be sustained if the course adopted by the managing member was so detrimental to the interests of the other members of the family that it would be inequitable to allow that partition to stand. We may refer to the following observations at page 487-
" The rule there is very clearly stated, that in the absence of proof of mistake, inequality of position, undue influence, coercion or like ground, a partition or family arrangement made in settlement of the disputed or doubtful claim is a valid and binding arrangement which the parties thereto cannot deny, ignore or resile from; and this principle is applicable where some of the members of the family are minors, or where the settlement has been effected by a qualified owner whose acts in this respect will bind the reversioner".
From the portion extracted above, it will be seen that the test of benefit and legal necessity will have to be satisfied in the case of a compromise between the managing member, on the one side and the third party, on the other though a more liberal test would be applied if it is a family settlement between the members of a family. In Dasaratharama Reddi v, Narasa Reddi. ILR 51 Mad 484 = (AIR 1928 Mad 601) a release by the managing member of a joint family, of a substantial portion of a mortgage debt due to the family merely out of charity or sympathy with the mortgagor was held to be not binding on the other members of the family as the transaction was not prudent and constituted virtually a waiver and relinquishment of valuable property rights of the family. It is settled law that like the managing member of the joint family, a Hindu widow could enter in to a bona fide compromise with a third party and that it would be binding upon the reversioner. Though the widow is not a trustee for the reversioners and she has succeeded to the estate as an heir, and is in enjoyment of the properties as an owner thereof, the same limitations are imposed upon her power to compromise. The Privy Council has pointed out in judging the validity and the binding nature of a compromise entered into by the widow, the same tests as would apply to the case of an alienation would be applied. (vide the statement of the law in Mullah's Hindu Law, 13 th Edn. at page 222. paragraph 193) vide also observations Lord Phillimore in Ramsumran Prasad v. Shyam Kumari. ILR 1 Pat 741 at pp. 745 and 746 = (AIR 1922 PC 356). At this stage, we may refer to the Bench decision of P.V Rajamanner.Offg C.J (as he then was) and Satyanarayana Rao. J. in Kaliammal v. Sundarammal. ILR (1949) Mad 171-(AIR 1949 Mad 84). The Bench did not accept the argument that it was sufficient to show that the compromise entered into by a widow was not a dishonest one and that it was not brought about solely for the personal advantage of the limited owner and that when the validity of the compromise is questioned., it must be established that it was reasonable and prudent and for the interest of the estate. It was also observed that a compromise which amounted to an entire abandonment by the limited owner of valuable rights of the reversion would not be binding of the reversioner. Rajamannar. C.J in the course of the discussion observed that it every case, the court had examined the terms of the compromise to ascertain whether, in the circumstances of the particular case, the terms could be held to be reasonable and prudent and for the benefit of the estate and that the Bench did not come across any case in which a compromise was upheld without holding that the terms thereof were reasonable and for the benefit of the estate. It may be mentioned that our attention was not drawn to any case in which any compromise entered into by the managing member of a family was upheld without a discussion and consideration as to how far it is bone fide, prudent and beneficial to the family. In fact in every one of the case cited the compromise was either upheld or set aside only after considering the merits of the compromise, from the point of view of prudence, necessity, benefit, etc. and presence or absence of fraud and collusion. It was also pointed out in the case in ILR (1949) Mad 171= (AIR 1949 Mad 84) (above referred to) that a compromise in consideration of a right to maintenance is not a big concession securing a benefit to the estate, because there was an undoubted right to maintenance and that right could never be denied, and that a mere desire by the widow to live in peace with a provision for maintenance would not be sufficient to sustain the compromise. In the instant case, we have already observed that the right of the plaintiff's family to a half share in the properties and for mesne profits for over a decade is undoubted and has been upheld by the highest court of the land and that all that remained was merely to effect a partition by metes and bounds and the ascertainment of mesne profits. The suit by the plaintiff's grand father for specific performance and for recovery of possession of the properties had been filed as early as 1945and, even if any person or persons had acquired any rights over the suit properties either as tenants or otherwise, it would only be as transferees pendente lite and they would not avail against Sadagopan and the plaintiffs (vide Section 52 of the Transfer of Property Act and Order XXI, Rule 102, P.C Code). Further, as already observed. the recital in the compromise about difficulties in securing possession from tenants in possession of the land is untrue and artificial. deliberately introduced into the compromise for justifying a wholly unjustifiable transaction involving the relinquishment and surrender of valuable properties. Our attention was also drawn to a Bench decision reported in Krishnamanchari v. Chinnammal, (1913) 24 Mad LJ 192 which dealt with the case of a compromise in a litigation which was brought in a representative character under Order 1, Rule 2 C.P Code. The Bench observed that if a decree had been passed by one court in their favour, a compromise by which any portion of the benefit obtained by the decree is given up, would require explanation and it would be more easy to impeach such a compromise as a dishonour, unreasonable and fraudulent compromise. In Basantlal v. Rameswar Prasad. the Allahabad High
Court held that a consent decree is no better than the original contract on the basis of which the decree is obtained and that the view that once a consent decree has been passed., it should be dealt with as a decree passed after consent or on merits so far as the junior members are concerned, would lead to absurd and anomalous results, that it would be open to an unscrupulous father or a father. Who has no interest in the welfare of the family in his mind, to enter into a compromise and, under that compromise, surrender valuable rights i.e., that would enable the father to indirectly achieve something which he cannot directly achieve. In other words, if in the absence of a pending litigation, the father would have no authority to make such a relinquishment, the father cannot exercise such authority by entering into a transaction which masquerades as a compromise pendente lite. Even though the position of a widow under Hindu Law cannot be assimilated to that of a managing member of the joint family in all its aspects. We do not see why the principle underlying the decision in ILR (1949) Mad 171= (AIR 1949 Mad 84) should not be applied while judging the validity of a compromise entered into by the managing member of a joint family. In both the cases, the authority to enter into compromise is not unlimited and absolute and, while entering into a compromise the widow or the managing member cannot, for the personal advantages of either, act to the detriment of the estate as a whole. We have already adverted to the clever manoeuvre resorted to by the defendants the thwarting the attempts of the plaintiffs; to expose their fraud. When the plaintiffs attempted to serve the copies of the proceedings (to implead themselves as parties) upon the counsel for the first defendant with a view to get themselves impleaded in the partition action to protect their interests and also resist the attempts of Sadagopan and the first defendant to enter full satisfaction of the decree, the counsel for the first defendant evaded service, saying that he had not got the address of his client and that the notice might be taken to the party direct. So long as he was on record and his vakalat had not been withdrawn, counsel could not and ought not to have take this attitude. Under the circumstances, service on the second defendants of notice of the proceedings initiated by the plaintiffs. Be it noted that the same advocate, throughout continued to represent and appear on behalf of his client in the matter of complying with the objections pointed out by the Sub-Court with regard to the memorandum of compromise filed in court and on 31--1959, he actually appeared in court and represented that the signature of the advocate to the compromise was not necessary as both the parties personally appeared and presented the compromise petition and that even the deed of compromise was not necessary and, as both the parties were adults and had agreed to the compromise, full satisfaction of the decree might be recorded. The plaintiffs, who are junior members of the family, had no other remedy except to intervene in the partition action to get themselves impleaded and protect their interests. We may, of the law in Mayne's Hindu Law, 11th Edn. at page 373,where, in the footnote, the learned author has observed that if the other members be not satisfied with the prosecution of the suit or the defence, they could apply to be made parties and ordinarily the court would make them parties. Then the attitude adopted by the first defendant and his counsel cannot have better evidence of fraud and collusion. It is true that on 1-12-1958 Sadagopan and the first defendant had filed the joint memo to accept the compromise and record full satisfaction of the decree and the application of the plaintiffs to be implead as parties was filed only on 12-12-1958. But that does not mean that the court was bound to uphold the compromise and record full satisfaction of the decree. So long as the application to record the compromise was pending, the court was bound to take not of any application made by junior member of the family to be impleaded as parties, especially when the complaint was the compromise lacked bona fides and would cause loss to the plaintiffs. We may in this context, refer to the decision of this court reported in Kunju Kombi Achan v. Ammu, AIR 1932 Mad 31, in which an appeal was pending on a decision in a suit filed against the karnavan of a family. The karnavan had made an application to withdraw his appeal and sometime later, the junior members of the tarwad applied to be impleaded in the appeal as supplemental appellants on the ground that the karnavan had applied to withdraw the appeal with the intention of causing loss to the tarwad. The court held that the matter must be regarded as pending and the junior members were entitled to come on record and resist the application of the karnavan to withdraw the appeal as their interests would be withdrawn. The court did not accept the contention that the application for withdrawal of the appeal being earlier, would prevail over the subsequent application filed by the junior members to be impleaded as parties. In the instant case, it cannot be said that the mere filing of the application to recognise the compromise and record full satisfaction of the decree would bring about the termination of the litigation. In is only after the court exercise its jurisdiction under Order XXIII, Rule 3, C.P Code, and passed a decree, that the litigation would come to an end. But in the meanwhile, the plaintiffs had filed the application, to be impleaded as additional plaintiffs in O. S 2 and 26 of 1945 with a view to assert and safeguard their interests. We see no substance in the contention that the order recording satisfaction of the decree could have retrospective operation from 1-12-1958, the date on which the joint memo to record the compromise was filed and that the plaintiff's application to be impleaded as parties which was filed subsequently would not affect the right of the defendants to have full satisfaction of the decree entered up. This argument overlooks the important fact that the order of dates in which the applications were filed is not of much significance, but the crucial point is that the plaintiffs filed the application while the suit was yet pending and had not come to an end. The principle underlying the decision of the Bench in 1954-1 Mad LJ 530 =(AIR 1954 Mad 592) clearly governs the instant case. In all cases of litigation which are governed by Explanation VI to Section 11 C.P Code, it is settled law that Explanation VI to Section 11 applies to a proceeding by or against the managing member of a joint family, common sense and natural justice require that persons, whose interests would be affected by the result of the litigation would be entitled to come on record to protest their interests in further prosecution of the litigation, especially when their complaint is that the party already on record in a representative character is either not taking necessary and proper steps in the further prosecution of the proceedings or threatens to do something which would jeopardise their interests. Order I, Rule 8, C. P. Code specially enables a party so represented, if he so desires, to come on record. It would be a travesty of justice to hold that a party who is bound by the result of a litigation, though not eo nomine a party to the litigation, shall be denied an opportunity to draw the attention of the Court to some step, which seeks to prejudice his interests behind his back. In all such cases, it is the plain duty of the court to implead the parties duty of the court to implead the parties concerned either under Order I, Rule 10, or in exercise of its undoubted, inherent power under Section 151, C. P. Code.
15. For all these reasons, we hold that gross miscarriage of justice resulted from the recording of full satisfaction of the decrees in O. S. 2 & 26 of 1945. We therefore agree with the learned Subordinate Judge and hold that the arrangements. Ex. B-1, and the order recording full satisfaction of the decree are not binding upon the plaintiffs as they were vitiated by fraud and collusion, besides being detrimental to the interests of the plaintiffs. In the course of the argument, the payment of the sum of Rs. 5,000 and the receipt by the first defendant for the same as recited in Exhibit B-1 was relied upon as proof of bona fides of the compromise. Learned counsel for the respondents relied upon the decisions of this court reported inSreeramulu v. Thandavakrishnayya, 1942-2 Mad LJ 452 = (AIR 1943 Mad 77) and Muthachi v. Kandaswami Muthirian, 1945-1 Mad LJ 207 = (AIR 1945 Mad 135) and contended that such a recital is not binding upon the sons and that there must be independent ad satisfactory proof of the payment of Rs. 5,000. Learned counsel urged that the circumstances of the case indicated that the ignorance and illiteracy and the weakness of the first defendant were fully exploited by the second defendant and no such payment could have been made. Reliance was also placed on the Bench decision of this court reported in Loorthia Odayar v. Gopalasami Aiyar. 19 Mad LW 135 at page 140 = (AIR 1924 Mad 450) to the effect that the recital of the payment before the Sub-Registrar, by itself, is not decisive of the matter. It is unnecessary for us to express any opinion upon this question as even otherwise, we have held that the compromise is not binding. Further, so far as the plaintiffs are concerned the payment of Rs. 5,000 even if true would not be binding upon them. To what equities, if any is the second defendant entitled as against the first defendant is a matter for decision by the trial court in the final decree proceedings. But so far as the plaintiffs are concerned, they are entitled to work out their rights, wholly unaffected by the alleged payment of Rs. 5,000. The result is, the decree passed by the trial court is upheld and the appeal is dismissed. The appellant will pay the costs of the plaintiff (respondents 1 to 3) both here and in the trial court. The first defendant will bear his own costs throughout. The appellant will pay to the Government the court-fees payable on the plaint. As this litigation is over 25 years old, the trial court should make every effort to dispose of the final decree proceedings as expeditiously as possible. The trial Judge will see that these proceedings are not further protracted. The records from this court will be despatched to the trial court within a fortnight's time.
16. Appeal dismissed.