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Ramasamy Mudaliar and ors. Vs. Alagathai Anni and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1929Mad96
AppellantRamasamy Mudaliar and ors.
RespondentAlagathai Anni and ors.
Cases ReferredIn Kondava Naicker v. Kandasami Goundar
Excerpt:
- - the bhattar was a rich man. venkatachari are (1) that it is proved from the record that the basis of the compromise of the suit of 1910, namely, that the estate was small owing to the heavy debts of the deceased is not supported by the evidence and the documents filed and that the compromise is invalid because it was based on a misstatement of facts, and (2) that the judge should have called on the plaintiffs or allowed them to prove over again that they are the illegitimate sons entitled to a share and that if they can show that they are the illegitimate, sons, the compromise must necessarily fail as there could be no bona fide dispute between the parties as to the status of the plaintiffs. defendant 2 married into a rich family of dalavoy mudaliar and she inherited a very large.....kumaraswami sastri, j.1. this appeal arises out of a suit for partition filed by plaintiffs 1 and 2 claiming to be the illegitimate sons of one kumaraswami mudali against defendant 1,. his widow. defendants 2 and 3 are the daughters of defendant 1. defendant i is the daughter-in-law of a deceased daughter. defendant 5 is defendant 3's husband's brother. defendant 6 is the son of defendant 3. defendants 7 and 11 are the brothers of defendant 1's husband. defendants' 8, 9 and 10 are the sons of defendant 7. defendant 12 is the mother of plaintiffs 1 and 2.2. the case for plaintiffs 1 and 2 is that ramasundarathammal, their mother was under the continuous concubinage of kumaraswami mudali ever since she attained maturity and they are her sons by kumaraswami mudali that they (plaintiffs 1 and.....
Judgment:

Kumaraswami Sastri, J.

1. This appeal arises out of a suit for partition filed by plaintiffs 1 and 2 claiming to be the illegitimate sons of one Kumaraswami Mudali against defendant 1,. his widow. Defendants 2 and 3 are the daughters of defendant 1. Defendant i is the daughter-in-law of a deceased daughter. Defendant 5 is defendant 3's husband's brother. Defendant 6 is the son of defendant 3. Defendants 7 and 11 are the brothers of defendant 1's husband. Defendants' 8, 9 and 10 are the sons of defendant 7. Defendant 12 is the mother of plaintiffs 1 and 2.

2. The case for plaintiffs 1 and 2 is that Ramasundarathammal, their mother was under the continuous concubinage of Kumaraswami Mudali ever since she attained maturity and they are her sons by Kumaraswami Mudali that they (plaintiffs 1 and 2) and defendant 12 were under the protection of Kumaraswami Mudali till his death and under Hindu Law they are entitled to a share in Kumaraswami Mudali's estate. On the death of Kumaraswami Mudali and during the minority of plaintiffs 1 and 2, their mother filed pauper suit No. 40 of 1910 on the file of the Sub-Court, Tinnevelly, and she entered into a rajinama agreeing to receive Rs. 1,675 in full settlement of the plaintiff's claim. It is alleged that the rajinama was not bona fide and was entirely prejudicial to plaintiffs 1 and 2 and that it was entered into because defendant 12 was under the influence of defendant 1 and was defrauded, she being helpless and not having proper advice. They state that the compromise is not binding on them and claim their share in their father's estate. Various schedules are annexed to the plaint.

3. Defendant 1 denies that plaintiffs 1 and 2 are the illegitimate sons of Kumaraswami Mudali or that they are entitled to any share in his estate. She states that their mother is a dancing girl and was not the permanently kept concubine of Kumaraswami Mudali, that the compromise in O.S. No. 40 of 1910 was bona fide and is valid and binding on plaintiffs 1 and 2. She raises some other defences with regard to the schedules annexed to the plaint which it is unnecessary to consider in this appeal.

4. Plaintiff 3 is no relation of the other two plaintiffs but is an assignee of the half-share of, plaintiffs 1 and 2 in the properties and he is added as a party.

5. The Subordinate Judge dismissed the plaintiffs' suit on the ground that the rajinama is binding on plaintiffs 1 and 2 and hence the appeal. It is not disputed that defendant 12 is a dancing girl by profession. On the death of Kumaraswami Mudali she as the mother and guardian of plaintiffs 1 and 2 filed O.S. No. 40 of 1910 on the file of the Sub-Court Tinnevelly, a certified copy of which, is filed as Ex 1. The plaintiffs, in that suit were the present plaintiffs 1 and 2 and their next friend was their mother defendant 12 in this suit. The defendants were defendant 1 here (the widow, of Kumaraswami Mudali) and Subbammal her daughter who is the present defendant 3. In that plaint it was stated that the plaintiffs were the illegitimate sons of Kumarswami Mudali by his permanently kept concubine and they claimed their share of the properties described in the schedules annexed to the plaint. Defendant 1 filed a written statement denying the plaintiffs'' rights. She denied that the plaintiffs were the sons of Kumaraswami Mudali and stated that their mother was a dancing girl, who, since she attained puberty, was following her profession and was not the permanently kept concubine of Kumaraswami Mudali. She denied the correctness of the schedules to the plaint, and in the schedule to the written statement she set out the debts which were due by Kumaraswami Mudali amounting to about Rs. 41,193-0-0. Defendant 2 also filed a similar written statement. She claimed that about Rs, 18,715 was. due to her from the estate.

6. The suit was compromised. The next friend in that suit filed an affidavit (Ex. 5-a) stating that with a view to benefit the minor plaintiffs a compromise is entered into with defendant 1, and that the terms are beneficial and favourable to the plaintiffs and she prayed for permission to enter into the compromise. The compromise is Ex. 3 dated 15th September 1911. It sets out the substance of the contentions and proceeds as follows:

Thereupon issues we're framed and the suit has now come up for trial. In the meanwhile, both parties have entered, into a compromise in the manner set out below as 'decided by arbitrators without entering into the merits of the contentions of the parties, in view to the various losses which both parties might be put to by proceeding further with the suit and taking it as far as the High Court, to the fact that the properties likely to remain after discharging the othi, mortgage, simple money debts, decrees, etc., set out in the written statements of the defendants and borrowed by the said Kumaraswami Mudaliar and due, from his estate would be very little and to the welfare and advantage of the said minor plaintiffs in particular.

7. Then it refers to the particulars of the compromise which are:

(1) Defendant 1. should pay Rs. 1,675 to the minor plaintiffs in full settlement of the plaintiff's claim, costs incurred in Court, etc., put of which Rs. 220 is for payment of Court-fee.

(2) Rupees 1,000 is the amount deposited in Court so that the minor plaintiffs' mother might purchase substantial property free of encumbrances for the benefit of the said minors, Rs. 300 is the amount received by the minor plaintiffs' mother towards the* expenses of the construction of the minors' house and Rs. 155 is the amount received by the plaintiffs' mother for the costs of suit and for payment of vakil's fee, Rs. 1,675 in all. The plaintiffs shall not hereafter have any right whatever to or further claim on all the properties which had belonged to the said Kumaraswami Mudali inclusive of the plaint properties. Defendants 1 and 2 shall bear their own costs. We pray that a decree may be passed in the terms above mentioned.

8. Upon this the Court passed the following order:

The compromise has been sanctioned by the Court as beneficial to the minors, Decree accordingly against defendant 1. Defendant 2 does not claim costs.

9. It appears from Ex. 4 that a special vakalat was executed by the plaintiff's' mother to her vakil to enter into the compromise. Ex. 4 sets out the contentions of both parties and the terms of the rajinama and concludes as follows:

As I have given to you this vakalatnama for filing in Court the rajinama which has been executed with these provisions for signifying consent thereto, for taking necessary steps for disposal and for obtaining and giving copies, I shall acquiesce in all that you do in that matter as if I do them myself.

10. The vakil on this special vakalat filed a petition (Ex. 5) praying that permission may be granted to the next friend of the minors to sign the rajinama and the Court passed the following order: 'The compromise appears to be beneficial to the minors. It is sanctioned.' The judgment (Ex. 6) simply says that a decree will be passed according to the razinama. The decree which was actually passed is Ex. 7.

11. It appears from the evidence that defendant 12 was helped in that suit by one Peddu Bhattar who was keeping her sister and also by Arunachala Mudali, the present defendant 7. Shadagopa Pillai, who was examined as defendant's witness 2 in this suit states that he appeared for the plaintiffs in O.S. No. 40 of 1910 and that he signed the original of the compromise petition (Ex. 3) and accepted the special vakalat (Ex. 4). He says that he must have certified that the compromise was for the benefit of the minors and that he believed from what was represented to him that the compromise was for the benefit of the minors. This is what he says in cross-examination.

Peddu Bhattar of Shankarankoil helped the plaintiffs' next friend in that case. I do not remember if Arunachala Mudaliar helped her...Peddu Bhattar made representations to me. It is on his representations that I believed that the compromise was for the benefit of the minor. The plaintiffs' mother did not come then.

12. The plaintiffs' mother who was examined as plaintiffs' first witness states:

The village Munsif of Shankarankoil, Peddu Bhattar and Arunachala Mudaliar of Edakal (defendant 7) helped me in filing the previous suit. Arunachala Mudaliar is the brother of Kumaraswami Mudaliar whose property I wanted to divide in my suit. I had no money to spend for litigation. The Bhattar and the Mudaliar asked me to have the suit compromised. I consented to the razi. I received Rs. 1,000 deposited in Court. I utilized the same for my support and the support of my sons. I have taken an othi for Rs. 550 out of Rs. 1,000 I received in Court. I did not get any other amount except Rs. 1,000. I did not get Rs. 300 for repairing the house. The plaintiffs had no house. I have not purchased any land in the name of my sons. I do not know the terms of the razinama.

13. In cross-examination she says:

the Bhattar referred to by me was keeping my sister. The Bhattar was a rich man. The Bhattar spent for the previous litigation. He is dead. The Mudaliar did not spend any amount for the litigation. He is alive.

14. It was pressed in the argument by Mr. Venkatachari for the appellants that the evidence of the vakil Sadagopa Pillai shows that he did not get instructions from the plaintiffs' mother for filing the razinama and that the razinama would not bind the plaintiffs and it was suggested that the compromise was not entered into by the plaintiffs' mother with full knowledge of what she was doing. No, doubt Sadagopa Pillai says that the plaintiff's mother did not come to him when he put in the certificate and the compromise petition. But it is clear from the special vakalat which I have referred to above that the plaintiffs' mother knew the terms of the razinama, stated that it was beneficial to the minors and asked the vakil to take the necessary proceedings. She was assisted by Peddu Bhattar who was a Village Munsif and by Arunachala Mudaliar (a divided brother of Kumaraswami Mudali) who must have known the affairs of the family. So far therefore as the suit of 1910 and the proceedings therein which terminated in the razinama are concerned, there is nothing in the record of those proceedings which would suggest that there was any fraud or any other circumstance which would render the razinama not bidding on the plaintiffs in that suit. The plaintiffs before they could succeed in this suit have to prove the allegations in the plaint that the razinama is not binding on them. This is the subject-matter of Issue 2 which runs as follows:

Whether the raji and decree in O.S. No. 40 of 1910 are not valid and binding on plaintiffs.

15. It is argued by Mr. Venkatachari for the appellants that the Subordinate Judge was wrong in treating this as a preliminary issue to be decided in the suit, that he ought to have allowed the plaintiffs to adduce all their evidence, and what the Subordinate Judge ought to have done was to have given the plaintiffs an opportunity of proving once again the case they had set up in the suit of 1910, namely, that they were the illegitimate sons of Kumaraswami Mudali, entitled to a share of the properties. So far as I can see from the record there is nothing to show that any evidence was shut out nor is there any affidavit filed before us that any witnesses whom the plaintiffs wanted to examine were not examined by the Court. It appears from the B diary that on 26th November 1923 issues 1 to 3 and 14 were referred to and discussed and the case was adjourned to 6th December 1923. On 6th December, the defendant's vakil wanted issues 1 to 3 and 14 to be tried first. Thereupon the plaintiffs' witnessess were examined and their case was closed. Then two witnesses were examined for the defendants and the suit was adjourned to 8th December 1923. No objections seem to have been raised to this course and this case proceeded. On 8th December the plaintiffs filed their documents and the defendants filed their documents; the case was closed and adjourned to 10th December for judgment. On the 10th judgment was delivered. so far as the documentary evidence is concerned, a number of documents having been filed on both sides. The plaintiffs filed Exs. A to A-7 and the defendants filed Exs. 1 to 36. The plaintiffs examined four witnesses and the defendants examined two witnesses. I cannot say on the record that any evidence which would Show that the compromise was not binding on the plaintiffs was shut out.

16. The main arguments of Mr. Venkatachari are (1) that it is proved from the record that the basis of the compromise of the suit of 1910, namely, that the estate was small owing to the heavy debts of the deceased is not supported by the evidence and the documents filed and that the compromise is invalid because it was based on a misstatement of facts, and (2) that the Judge should have called on the plaintiffs or allowed them to prove over again that they are the illegitimate sons entitled to a share and that if they can show that they are the illegitimate, sons, the compromise must necessarily fail as there could be no bona fide dispute between the parties as to the status of the plaintiffs.

17. As regards the first point the position was this. The plaintiffs in the suit of 1910 gave in the schedules to the plaint the extent of the properties. The defendants stated that there were heavy debts and that after the payment of those debts the assets would be small. Both the defendants gave an exhaustive list of the various debts so that it cannot be said that there was any concealment of the real state of affairs. It is not disputed and the evidence shows that when Kumaraswami Mudali died, he was indebted and that there were decrees against him some of which were being executed. There is not much dispute about the extent of the lands but the question is what was their value. The Subordinate Judge from para. 36 onwards of the judgment deals with the question of the value of the lands and the debts and in para. 52 gives his finding as follows:

Even allowing some margin for the valuation given in Ex. 33, and taking into consideration also the value given in Ex. A series, the properties of Kumaraswami Mudaliar are likely to be. worth between Rs. 40,000 and 50,000. That he had debts to the extent of about Rs. 35,000 would appear clear from the documents already referred to by me. I have allowed the largest margin possible in, favour of the plaintiffs. The estimated value has no doubt to be taken only approximately.

18. There is nothing to show that any of the debts mentioned in the written statements filed in the suit of 1910 are fictitious. I do not think there is any reason to disturb the finding of the Subordinate Judge as regards the value of the properties or as regards the debts. Defendant 2 married into a rich family of Dalavoy Mudaliar and she inherited a very large estate from her husband. It is said that she in order to benefit her sister defendant 3 got the decrees-against the estate of Kumaraswami Mudali assigned over to her. There is nothing improper in this course nor does it suggest any fraud. The fact that the widow did not contest some of the suits filed after her husband's death does not show any fraud. It is difficult to believe that the widow consented to collusive decrees and got her daughter defendant 2 to take assignments of all those decrees after paying consideration to the decree-holders and then got them transferred to her sister defendant 3. I do not think the compromise can be set aside on the ground that there was any material concealment of the value of the estate in the rajinama entered into.

19. Reference has been made by Mr. Venkatachariar, to Bibee Solomon v. Abdul Azeez [1881] 6 Cal. 687 where it was held that a compromise entered into with the sanction of the Court on behalf of the minors can be set aside where the Court sanctions it under a misapprehension of the material facts even though no actual fraud was proved. In that case the plaintiff who was a minor was entitled to 7/24ths of the estate of her father. The question was as regards the value of the estate. Sir Richard Garth, C.J., and Pontifex, J., following Brooke v. Lord Mostyn [1865] 2 De.G.J. & Section 373, held that the estate was much larger than what was represented to the Court and that consequently the compromise which was based on an erroneous assumption of facts was not binding on the minor.

20. Brooke v. Lord Mostyn [1865] 2 De.G.J. & Section 373, was a case of a compromise grounded on the supposed insufficiency of real estate to pay an infants' legacy and other legacies charged upon it which was sanctioned by the Court on behalf of the infant. It was found that the estate was much larger owing to the valuation being incorrect and it was held that the compromise must be set aside. Turner, L. J., observed:

It is to be considered, then, what are the circumstances which will furnish sufficient ground for impeaching a compromise made under the order of the Court, and I think they must be such as to amount to fraud in the party claiming the benefit of the compromise, meaning by fraud not moral fraud, but what in the eye of this Court is considered as amounting to fraud. A compromise of doubtful rights between adult parties cannot, as I conceive, be set aside on any other ground. If there be no fraud, and equal knowledge on both sides, the compromise cannot be disturbed, but if there is knowledge on one side which is withheld, the compromise cannot stand, because the withholding of the knowledge amounts in the view of a Court of equity to fraud. The rule which applies between adults seems to me to be not less applicable to compromises by the Court on behalf of infants. The orders of the Court cannot be set aside on grounds less strong than those which would be required to set aside the transaction between competent parties.

21. Applying this test to the present case I do not think it has been shown that the compromise in the suit of 1910 can be set aside on the ground that there was any fraud as regards the non-disclosure of any material facts relating to the value of the properties such as would render the compromise invalid.

22. As regards the question whether the 1st and 2nd plaintiffs in this suit are entitled to go into the merits of their claim in the previous suit as regards their legitimacy I can find little authority for holding that where a suit is filed to set aside a compromise properly entered into and sanctioned by Court, the compromise can be re-opened by proving; over again facts which the parties to the compromise alleged in the previous litigation. To hold otherwise would be to hold that no compromise can be binding if a party can claim to be entitled to re-open the whole question which it was the object of the compromise to settle-without adjudication.

23. As regards the question of the plaintiff's rights as the illegitimate sons of Kumaraswami Mudali it was alleged by their mother as next friend that she was the permanently kept concubine of Kumarswami Mudali and that the plaintiffs are her sons by Kumaraswami Mudali. This was a fact; within her knowledge as to which no representations by the defendants could possibly affect her judgment. 'When the plaintiffs' mother compromised the suit, it cannot be said that she compromised it because of any statement made by the defendants which she relied upon. While the widow had not the same means of knowledge as to the connexioa between the plaintiff's mother and Kumaraswami Mudali or as to its permanent or exclusive character, the plaintiffs' mother was the person who best would have known the facts. It is difficult to say that because the widow denied the right of the plaintiffs, the compromise can be set aside if it is shown that the widow cannot prove her allegation.

24. Mr. Venkatachariar's main argument is that if the widow's denial was false, there was no bona fide contest and therefore no valid compromise and that in the present case he can go into all the facts-over again in order to show that there was no bona fide contest and no bona. fide compromise. Reliance has been. placed by him on Kondava Naicken v. Aparanji Amma [1919] 10 M.L.W. 544, where a dispute arose as to the property left by one Mayilchami the last male holder. He left behind him a daughter, a daughter-in-law of a predecesed son and a distant cousin Mandalathipathi. Disputes arose regarding the succession to his properties. The daughter-in-law put forward a will alleged to have been executed by Mayilchami under which she claimed one-third of the property. The daughter contested the genuineness of the will and claimed the property as the heir. Mandalathipathi claimed the property to be joint family property to which he was entitled by survivorship. During the course of the trial the parties entered into a compromise by which the daughter-in-law was given some property less than one-third and the rest of the property was divided between the defendant 1 and Mandalathipathi. Mandalathipathi mortgaged his property and the mortgagee obtained a decree. The daughter's son filed a suit to set aside the mortgage and questioned the bona fides of the settlement. Sir John Wallis, C.J., and Seshagiri Aiyar, J., were of opinion that the Subordinate Judge had not considered the effect of the evidence as to the property which was the subject of the suit and in the hands of the alienee having been the separate property of Mayilchami and his branch and that he had not also considered with reference to the question of bona fides the evidence as to whether the two branches were divided or not. The Subordinate Judge submitted the following findings : (1) that the property was not the separate property of Mayilchami and his branch, (2) that Mayilachami and Mandalathipathi were divided, (3) that the compromise and the partition were not bona fide and did not amount to a family settlement and (4) that the will alleged to be executed by Mayilchami was not genuine.

25. The learned Judges accepted the findings and held that so far as defendant 1 was concerned there was not sufficient evidence for holding that in assenting to the terms of the compromise she was not acting bona fide in the light of the circumstances then brought to her notice. As regards the alienee from Mandalathipathi, the learned Judges were of opinion that if the question arose between Mandalathipathi and the plaintiffs, the plaintiffs would be entitled to succeed on the ground that Mandalathipathi had no bona fide claim as regards the property and there was no bona fide dispute to be settled. They, however, held that the alienee was a bona fide transferee and must be protected. The case was carried in appeal and the decision of their Lordships of the Privy Council is reported in Kondava Naicken v. Kandasami Gounder A.I.R. 1924 P.C. 56. The only question before their Lordships was as regards the alienee from Mandalathipathi. Their Lordships reversed the decision of the High Court on the ground that on the findings and the facts of the case Section 89, Trust Act, did not apply and that as the compromise was invalid he had no right. As regards the compromise their Lordships observe as follows:

It has been hold by the High Court, and their Lordships adopt the finding, that Mayilchami and Mandalathipathi were separata and not joint, and there can be no doubt that this was known to Mandalathipathi at the time of the compromise. But the compromise was based on the supposition that there was a question as to whether there had been a separation between the two lines of the family.

The High Court has further found that there is no evidence that Aparanji, with full knowledge that there was no truth in the claim put forward by Mandalathipathi, agreed to the compromise from ulterior motives and that there is not sufficient evidence to show that in assenting to the terms of the compromise she was not acting bona fide in the light of the circumstances then brought to her notice. Their Lordships do not dissent from this appreciation of the evidence. Aparanji at the time of the compromise stood in need of special protection. She was a purdanashin lady recently widowed, the mother of infant sons, and, so far as the evidence disclosed, without any adult male relation except Mandalathipathi to advise her.

But it was under his advice and influence that she acted in the litigation with Sennamman and in the compromise by which Mandalathipathi took, to the detriment of herself and her infant sons, the benefits to which, as he well knew; he had no honest claim.

In these circumstances the High Court came to the conclusion that against defendant 2, Mandalathipathi's son and heir, the plaintiffs established the invalidity of the compromise after their mother's death. From this part of their adjudication no appeal has been preferred and the only contest now is with the mortgagee in whose favour the High Court decided. Their Lordships then deal with the rights of the mortgagee.

26. It is difficult to see how the decision of their Lordships of the Privy Council can be authority for holding that where a compromise is sought to be set aside, a party is entitled to prove the facts in the suit over again and work backwards by showing that the facts proved before the Court establish his contention and consequently that the compromise is invalid because on the facts now proved there was no bona fide claim on the other side. I do not think Sir John Wallis, C.J., and Seshagiri, Aiyar, J., lay down any such proposition. It certainly does not follow from any of the observations of their Lordships of the Privy Council in the case above referred to. Reliance has also been placed by Mr. Venkatachari on Gunjeshwar Kunwar v. Durga Prasad Singh A.I.R. 1917 P.C. 146. In that case the plaintiff claiming as the heir of her deceased father sought to recover possession of the properties from the defendants who were her uncle and certain assignees from him and alleged that the compromise entered into between defendant 1 and her mother and the decree which was passed on the terms of that compromise were not binding on her. The contention was that the plaintiff's father was born blind and therefore incapable of inheritance and that it was because of that contention the parties compromised the suit. Their Lordships of the Privy Council on the evidence found that the plaintiff's father was not born blind and was divided from his brother Durga Prasad Singh; and in holding that the compromise was not binding on the plaintiff observed:

Their Lordships have without any doubt come to the conclusion that Bishambar Prasad Singh was not born blind, and that Durga Prasad Singh could not possibly have been in ignorance or in doubt as to that fact, and had, when he induced Mt. Hasbans Kunwar to enter into the compromise on behalf of the plaintiff which is in question in this suit, no honest and bona fide belief in the claim which ho was making. That compromise, and the decree which was made in pursuance of it, could not be allowed to affect in any way the right of the minor, and she was entitled to the declaration which the Subordinate Judge made in her favour.

27. It is clear from the facts in this case that while the plaintiff's mother who was married and who came into the family after the birth of the plaintiff's father could not have known whether the plaintiff's father was not congenitally blind defendant 1 his brother must have known of the fact. It was held that on the facts-disclosed in that case there could be no question of a bona fide compromise where a person knowingly raises a dispute by setting up a false claim which he knows to have no foundation and in fact induces the other party to settle the claim.

28. It has been settled law that where a' party seeks to set aside a compromise of a disputed claim he must first of all show grounds of fraud, undue influence, mistake etc., which would entitle the party to set aside the transaction before he can be allowed to agitate the merits of his claim. In Rameshwar Pershad Singh v. Ram Bahadur Singh [1907] 34 Cal. 70 a minor sought to set aside a compromise entered into between the adult members of the family and claimed the property in the suit on the ground that the compromise was not binding on him. The contention of the appellants before their Lordships of the Privy Council was that in sanctioning the compromise the Court had not the proper materials before it and that it was misrepresented to the Court that property which was really worth Rs. 30 lakhs was only five lakhs in value. Lord Macnaghten, observed:

The first step the appellant has to take is to set aside the compromise of a former litigation instituted for the very same purpose as the present suit.

29. His Lordship after pointing out that there was nothing to show that the compromise was not entered into bona fide observes as follows:

It seems to their Lordships hopeless now to attempt to set it aside. Sir Robert Finlay has admitted very properly that, unless he can make good his point and have this compromise set aside, it is idle to go into the remaining questions which have been raised.

30. I may also in this connexion refer to Sidh Gopal v. Behari Lal : AIR1928All65 which was a case where the compromise was. between a person who claimed to be a legitimate son but whose legitimacy was denied and the other heirs. The question as to what was a bona fide claim was considered.

31. I am of opinion that the decision of the Subordinate Judge as regards the binding nature of the compromise is correct.

32. The next question is as regards the properties in Schedules 2 and 3. Defendants 5 and 6 are interested in the properties specified in Schedule 2. Defendants 7 to 11 claim an interest in the properties specified in Schedule 3. Defendants 5 to 11 were not parties to the previous suit. As regards the properties in Schedule 2 the plaintiff's case is that Kumaraswami Mudali was the real owner of those properties. Defendants 5 and 6 deny that Kumaraswami Mudali had any interest in the properties. As regards the properties in Schedule 3 the plaintiff's case is that Kumaraswami Mudaliar was entitled to 21/30ths share while according to defendants 7 to 11 he was entitled to 12/30ths share. It is contended that this claim is barred by res judicata in so far as the items included in the previous plaint are concerned and by Order 2, Rule 2 in so far as the items not included in the previous plaint are concerned. I do not think the claim can be barred either because the matter is res judicata or because it falls under Order 2, Rule 2. I need only refer to Gopala-swami Vastad v. Govindasami Vastad [1912] M.W.N. 1071 where it was held that Section 13 of the Act of 1882 which deals with the question of res judicata was not strictly applicable to compromise suits as it applied in terms to what was actually heard and finally decided and that Section 43 of the old Code corresponding to Order 2, Rule 2 of the present Code had no application where the parties to the suits are not the same. Mr. T. M. Krishnaswami Ayyar for the respondents does not dispute this.

33. I am, however, of opinion that as the compromise in the previous litigation is valid and binding on the plaintiffs and as the compromise in terms gives the plaintiffs only a sum of Rs. 1675 and vests the title to the properties left by Kumaraswami Mudali in the widow, the plaintiffs have no right to the properties of Kumaraswami Mudali and even assuming that they can prove that the properties in Schedules 2 and 3 belong to Kumaraswami Mudali it is difficult to see how they can claim any interest in those properties which under the compromise vest in defendant 1, the widow.

34. The appeal fails and is dismissed with costs.

Reilly, J.

35. The plaintiffs allege that the compromise in the previous suit was vitiated by fraud. As so often happens when fraud is alleged in suits in this Presidency, it is not described specific-ally. In para. 14 of the present plaint it is stated that defendant 12, who conducted the previous suit as next friend of her minor sons, the present plaintiffs 1 and 2, was

subjected to the influence and fraud of defendant 1 and others, and, as she was helpless, she was obliged to agree, but that she did not give her consent whole-heartedly to the said compromise

and in para. 16 it is stated that the decree in the previous suit

was obtained by defendant 1 without letting the Court know that the compromise was detrimental to plaintiffs 1 and 2.

36. The suggestion that undue influence was practised upon defendant 12 in the previous suit has not been pressed before us. Mr. Venkatachariar for the plaintiffs has confined himself to the charge of fraud, which, so far as defendant 12 is concerned, is so vague that it does not deserve any attention. Apart from this defect in pleading it is obvious that defendant 12 could not have been deceived on the first of the main questions between the parties in the previous suit, viz., whether her sons, plaintiffs 1 and 2, were the issue of exclusive concubinage between her and Kumaraswami Mudaliar, about which she of all the world had the best information. The other question in the previous suit on which it is suggested she might have been deceived was the extent of Kumaraswami Mudaliar's estate. Mr. Venkatachariar does not complain that in the present suit any evidence of the extent of that estate has been shut out. The learned Subordinate Judge has found that at the outside the excess of Kumaraswami Mudaliar's assets over his liabilities at the time of his death was Rs. 10,000. It appears to me not improbable that that is an over-estimate. But, assuming that to have been the net value of the estate, we cannot from that infer that, when defendant 12 agreed to accept for her sons Rs. 1,675 instead of Rs. 5,000 which would have represented their half-share had they succeeded in their suit, rather than pursue the uncertain course of what might have been very expensive litigation, she must have been deceived as to the amount of the estate. There is no other evidence to show that she was deceived in the matter. So far as it is alleged that fraud was practised upon defendant '12 in obtaining the compromise think it is clear that the present suit must fail. In the course of his arguments Mr. Venkatachariar suggested that, if defendant 1 and her daughter Subbammal knew at the time of the compromise that their denial that plaintiffs 1 and 2 were illegitimate sons of Kumaraswami Mudaliar entitled to a share in his estate was false, then there was no consideration for the compromise. But apart from the fact that this question does not arise on the pleadings in the present suit there was at any rate consideration in defendant 1 and her daughter giving up their contentions as to what the extent of Kumaraswami Mudaliar's estate would be when realized.

37. The more serious part of Mr. Venkatachariar's argument is that it is alleged in the plaint that in the previous suit the Court was deceived in regard to the compromise and its sanction obtained by fraud; the plaintiffs can now prove that defendant 1 and her daughter did not believe, and could not have believed, their denial that plaintiffs 1 and 2 were the sons of Kumaraswami Mudaliar by an exclusively kept concubine; the plaintiffs therefore ought to have been allowed to prove that under issue 7, which the Subordinate Judge did not consider before disposing of the suit. It is not clear from the record that the plaintiffs objected to the disposal of the suit without evidence being admitted in respect of issue 7. However, let us assume that the plaintiffs could prove that defendant 1 and her daughter knew that their denial that plaintiffs 1 and 2 were Kumaraswami Mudaliar's sons by an exclusively kept concubine was false. If that were established, would it follow that the learned Subordinate Judge who sanctioned the compromise in the previous suit was deceived in the matter? When sanctioning the compromise he must have been aware that either the plea of defendant 1 and her daughter or the plea of defendant 12 as next friend of her sons on this point was false and false to the knowledge of the party who put it forward. He was aware that there was a direct contradiction between the pleas, that one or other must be false and that the parties must all know the truth. But nevertheless it was still open to him to come to the conclusion that it was advantageous to the minors to accept the Rs. 1,675 rather than to fight out the question of their relationship to Kumaraswami Mudaliar and the question what, if any, was the surplus of his assets over his liabilities in litigation which might be protracted and expensive. But Mr. Venkatachariar contends that, if his clients' opponents put forward a plea false to their knowledge in the previous suit, they committed fraud on the Court which sanctioned the compromise and the plaintiffs must be allowed for that reason alone to prove in the present suit that the plea was false to their opponent's knowledge. For this he relies on Gunjeshwar Kunwar v Durga Prasad Singh (5) and Kondava Naicker v. Kandasami Gounder. In Gunjeshwar Kunwar v. Durga Prasad, a plaintiff putting forward a plea false to his knowledge induced a minor defendant's mother and guardian, a purdanashin lady, who had no independent advice, to accept an unfavourable compromise for which the Court's sanction was obtained. The minor was allowed in a subsequent suit to prove that the plaintiff's plea was false to his knowledge and obtained a declaration that the compromise was not binding on her. In Kondava Naicker v. Kandasami Goundar, again a compromise made with the sanction of the Court between one Mandalathipathi, who knowingly put forward a false claim to the property of minors, and the minors represented by their mother as guardian was set aside when it was found that the minor's mother was a purdanshin lady with no one to advise her but Mandalathipathi himself and unaware that Mandalathipathi's plea was false. Both those are decisions of their Lordships of the Privy Council, and, as Mr. Venkatachariar urges, they are unquestionably binding upon us.

38. But it is clear that in both cases the Court which sanctioned the compromise was deceived and fraud was practised upon it. Each of those compromises must have come before the Court concerned as a compromise reached by free consent by parties negotiating at arm's length with full knowledge of the facts. But in each case it was found that the compromise was procured by the party who knowingly put forward a false plea and procured by taking advantage of the helplessness of the minor's guardian. In each of those cases there was plain fraud on the Court, which was deceived into believing that there was a compromise by free consent when there was no such consent. But in the present case, even if the plea of defendant 1 and her daughter that plaintiffs 1 and 2 are not Kumaraswami Mudaliar's sons by an exclusively kept concubine was false to their knowledge, there is no reason to suppose that defendant 12 did not give a free consent to the compromise. She knew the facts of the relationship better than any one else; there is no evidence that she was deceived about the extent of the property; the suggestion of undue influence has been abandoned. Then where was the fraud on the Court in obtaining sanction for the compromise? I think it is clear that, even if the plaintiffs proved that the plea of defendant 1 and her daughter was false to their knowledge, they would still not be entitled to re-open the compromise. Mr. Venkatachariar has gone so far as to contend that any compromise decree can be attacked in a subsequent suit by one of the parties to it alleging that his opponent in the compromised suit knowingly put forward a false plea and that allegation he must be allowed to prove in the subsequent suit. But neither reason nor authority will carry us so far.

39. In any suit between A and B, A may be well aware that part of B's claim or defence is false and false to B's knowledge and yet with his eyes open he may think, and think rightly, that it is wise to compromise the suit instead of fighting it out. If he enters into a compromise in those circumstances, can he afterwards prove that B knowingly put forward a false case and by that prove that the compromise was vitiated by fraud? Even if he proved that B deliberately put forward a false plea he would still fail to establish fraud in such circumstances as ex hypothesi he could not prove the deception or suppression of facts without which there can be no fraud. Fraud must be strictly proved. A man cannot complain of fraud simply because he regrets a bargain into which he entered with his eyes open. Nor can a minor attack a compromise sanctioned by the Court on his behalf on the ground that the Court was defrauded unless he can prove, not merely that the compromise was not very profitable to him or that his opponent put forward a false plea, but that the Court was deceived either by that plea or about the facts of the case or was deceived into believing that the compromise had been accepted by the minor's guardian or next friend with free consent and 'knowledge of the facts when it had not' been so accepted.

40. It was suggested at one stage of the hearing of this appeal that D. W. 2 Mr. Sadagopa Pillai, the pleader who appeared for defendant 12 as next friend for her sons in the previous suit, had certified that the compromise was for the benefit of the minors without sufficient care. In cross-examination he stated that it was on the representation of one Peddu Bhattar, who was helping defendant 12 in that suit, that he believed the compromise to be for the benefit of the minors and that he did not see defendant 12 on that occasion. But it does not follow from that that he was not fully acquainted with the facts of the case and did not exercise his judgment upon them, nor as was suggested, that he did not take instructions from defendant 12 in the suit. Ex. 4 is the special vakalat given to Mr. Sadagopa Pillai by defendant 12 for the compromise of the suit, and it sets out the reasons for the compromise in considerable detail. I am glad to be able to say that I see no reason to suppose that Mr. Sadagopa Pillai in any way failed in his duty in giving his certificate that the compromise was beneficial to the minors.

41. I agree that this appeal must be dismissed with costs.


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