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(Garapati) Bulliraju and ors. Vs. (Garapahi) Butchi Seetayyamma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily ;Civil
CourtChennai
Decided On
Reported inAIR1930Mad412
Appellant(Garapati) Bulliraju and ors.
Respondent(Garapahi) Butchi Seetayyamma and ors.
Cases Referred and Gurulingaswami v. Ramalakshmama
Excerpt:
- .....were not entitled to institute this suit. the decree of the subordinate judge will be reversed and the case remanded for disposal on the merits. respondent 1 will pay the costs of the appeal. costs of suit will abide and follow the result. the stamp duty will be refunded.reilly, j.6. i agree.
Judgment:

Kumaraswami Sastri, J.

1. The plaintiffs are the appellants. Defendant 1 is the widow of one Subbarayudu who died on 21st March 1919 leaving a will which is alleged to have been executed on 10th March 1919. It is conceded that this will gave the widow absolute rights. The next reversioners filed O.S. No. 50 of 1920, for a declaration that the will which was set up by the widow, defendant 1, was a forgery. The suit was filed on 19th November 1920. Ex. B is the proceedings in that suit and it appears from the diary of the proceedings that the suit was on 25th July 1922 withdrawn by the plaintiffs unconditionally, each party bearing his own costs. It appears also that from 3rd March there was a talk of compromise. We find from the diary that some adjustment was hoped for on 3rd March. Then on 29th April we find an entry A compromise is hoped for. On request the suit is allowed to stand over to 10th July 1922.' Then there is a note on 10th July, 'as some time is requested for settlement, it is adjourned to 25th July,' and on the 25th the note is:

the plaintiffs withdraw the suit. Defendant 2 signed the petition. The pleader for defendants 1 and 2 do not press for costs. The suit is dismissed without costs.

2. The compromise petition Ex. 1 runs as follows:

Now that, subsequently, to the suit, we learn that the said will of the late Subbarayudu is just, genuine and one executed when he was in a state of sound sense and as such it is enforceable in every respect we hereby with draw the said suit (para. 2).

3. This is a statement which really admits the will to be genuine, valid and enforceable so that the plaintiff gave up the whole of their case as set up in their plaint. The present plaintiffs are the next presumptive reversioners who have filed this suit for a declaration that the will is not genuine. They state that they are entitled to sue as the next immediate reversioners defendants 2 to 6 who by receipt of money from defendant 1 admitted the genuineness of the will and withdrew the suit, precluded themselves from disputing the genuineness by their conduct. Various issues were raised, but the Subordinate Judge dismissed the suit on the ground that the plaintiffs are not entitled to sue.

4. As regards the case of the plaintiffs that the compromise in the previous suit was brought about by receipt of money, the Judge on the evidence finds that money was paid for the suit being compromised. The evidence as regards payment is that of witnesses P. Ws. 1 and 2, 3 and 4. Their evidence is corroborated by Ex. A series which contain endorsements of payment made on 25th, 26th and 27th July, the compromise being on 25th July 1922. The Subordinate Judge accepts their evidence and finds that there must have been consideration paid for the withdrawal of O.S. No. 50 of 1920 by the plaintiff in that suit. This evidence is attacked by the respondent, but we are unable on the evidence to come to a different conclusion having regard to the probabilities of the case, the date of the compromise and the dates on which the money was paid-it was paid on the date of the compromise and on the two succeeding days-and also to the fact that the plaintiffs who filed that suit and went on with the proceedings for nearly two years suddenly stated that they had no case at all and that the will was genuine. We find, therefore, in this case that the next reversioners who filed the previous suit to declare the will invalid compromised the suit by receiving consideration. There is no evidence worth the name to show that there was any arbitration or any meeting of the pleaders or the persons interested, that the pros and cons were discussed and that it was really the withdrawal of a hopeless case for the purpose of avoiding the costs of litigation.

5. On these facts we find it difficult to hold that the present plaintiffs are precluded from filing the present suit. There can be little doubt that the will materially prejudices the interests of the reversioners as it really cuts off the reversion and the widow can do what she likes with the property. It has been held in Ramalinga Mudali v. Arumugha Mudali : AIR1918Mad495 that the withdrawal of the suit by the next reversioner without a trial on the merits gives a right to the next presumptive reversioners to file a suit. It is clear from Rani Anand Koer v. The Court of Wards [1891] 6 Cal. 764 and Gurulingaswami v. Ramalakshmama [1895] 18 Mad. 53 that where the next reversioners have precluded themselves from suing by their fraudulent or collusive conduct thereby prejudicing the reversion it is open to the next succeeding reversioners to file a suit to establish their rights. It is difficult to conceive of a case in which their rights are not prejudiced when the next reversioners file a suit and unconditionally withdraw it admitting in their petition the genuineness of the transaction which they had been impeaching all alone. It is clear evidence of fraud where they received money for themselves for such withdrawal. I think that the judgment of the Subordinate Judge cannot be supported. The suit was wrongly dismissed on the preliminary point that the plaintiffs were not entitled to institute this suit. The decree of the Subordinate Judge will be reversed and the case remanded for disposal on the merits. Respondent 1 will pay the costs of the appeal. Costs of suit will abide and follow the result. The stamp duty will be refunded.

Reilly, J.

6. I agree.


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