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Muthukumarasamy Odayar Vs. Subramania Iyer and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in33Ind.Cas.687
AppellantMuthukumarasamy Odayar;subramania Iyer and anr.
RespondentSubramania Iyer and ors.;allamelu Ammal and ors.
Cases ReferredKhunni Lal v. Gobind Krishna Narain
Excerpt:
compromise, nature of - bona fide transaction--widow, whether can validly enter into compromise--reversioners, whether bound, by it. - .....of those items for rs. 300 in 1904. that sale purported to be made to discharge certain promissory notes, exhibits xi series, amounting to about rs. 320. as the subordinate judge points out, there is no recital of these promissory notes in the sale-deed, exhibit d, nor were these notes received by the vendee. it may be that the amounts due on the promissory notes have been discharged afterwards. but i am not prepared to hold that they were paid with the proceeds of exhibit dl. at any rate it is not shown that there was not sufficient income from the property to pay off the money due under the promissory notes. in addition to the income from the property the 1st defendant obtained rs. 800 under the razinamah with reference to items nos. 1 and 2. and as i have pointed out her husband was.....
Judgment:

Abdur Rahim, J.

1. The plaintiffs in the suit in which these two appeals have arisen sought a declaration that certain alienations made by the 1st defendant, the widow of one Aiyavier, were not binding upon them. Appeal No. 155 of 1914 is preferred by the 3rd defendant and relates to items Nos. 14 to 24, while Appeal No. 176 of 1914 is preferred by the plaintiffs with reference to items Nos. 1 and 2 and 3 to 11. The 2nd defendant purchased items Nos. 14 to 24 from the 1st defendant. The 2nd defendant's husband is a cousin of Aiyavier and he has been examined in the suit as the plaintiffs' 4th witness. The sale to the 2nd defendant was on the 6th February 1904 and the gale by 1he 2nd defendant to the 3rd defendant was on the 17th February 1909. The sale to the 2nd defendant was for Rs. 300 and that to the 3rd defendant of the same property was for Rs. 1,000. The question raised with regard to these items is, whether there was necessity for the sale on the 6th February 1904 and whether that sale is binding on the reversioners. It appears that Aiyavier was not indebted to any large extent, the evidence being that all that he owed during his life-time was about Rs. 50 under Exhibit XI. Then there was a litigation which lasted from 1900 to some time in 1903. It appears that Aiyavier purchased items Nos. 1 and 2 at a Court auction, but the 4th defendant Krishnasami Iyer, who claimed to be the purchaser of the very land by a private sale, instituted a suit in 1900 for the recovery of items Nos. 1 and 2. That suit was dismissed in the first Court and the appeal to the District Court was also dismissed. Aiyavier died after the decree of the first Court was passed and before the District Court passed its judgment, that is, sometime between 1901 and 1902. Then there was a second appeal preferred by Krishnasami Iyer to the High Court. That, however, was compromised by a razinamah, Exhibit I (a), on the 14th September 1903. By the terms of the compromise the 1st defendant relinquished her claims to items Nos. 1 and 2 and received as consideration Rs. 800 and the claim against her for mesne profits for 3 years was also given up. Whether the compromise was bona fide and is binding upon the plaintiffs is the question which arises in Appeal No. 176. It was necessary to mention this litigation in connection with the case regarding items Nos. 14 to 24 in order to ascertain whether there was necessity for the sale of those items for Rs. 300 in 1904. That sale purported to be made to discharge certain promissory notes, Exhibits XI series, amounting to about Rs. 320. As the Subordinate Judge points out, there is no recital of these promissory notes in the sale-deed, Exhibit D, nor were these notes received by the vendee. It may be that the amounts due on the promissory notes have been discharged afterwards. But I am not prepared to hold that they were paid with the proceeds of Exhibit Dl. At any rate it is not shown that there was not sufficient income from the property to pay off the money due under the promissory notes. In addition to the income from the property the 1st defendant obtained Rs. 800 under the razinamah with reference to items Nos. 1 and 2. And as I have pointed out her husband was not indebted to any extent during his life-time and apparently paid the expenses the litigation so long as he was alive out of the income of the family property. The 1st defendant is a very young widow and her advisers were the 2nd defendant's husband and her father. Some of the promissory notes at all events appear to have been executed by the father, and nothing appears on the face of those documents to show that they were executed for necessary purposes of the widow. In these circumstances I think the Subordinate Judge's conclusion that necessity has not been proved for Exhibit D is right. As the sale under Exhibit D, is invalid, the sale to the 3rd defendant also must fall to the ground. Appeal No. 155 of 1914 is, therefore dismissed with costs.

2. Now, as to Appeal No. 176 of 1914, the question with reference to the razinamah is whether it was a bona fide compromise. If it was a bona fide transaction, the plaintiffs are not entitled to re-open the matter. That that is really the test applicable to such cases is made clear by the latest decision of the Privy Council on the point: Khunni Lal v. Gobind Krishna Narain 38 I.A. 87 The passages which lay down the proposition bearing on this point are to be found in pages 102 and 103; where it is pointed out that the case of a razinamah does not stand on the same footing as an alienation. It is argued by the learned Pleader for the appellants that necessity must be shown even in the case of a compromise just in the same way as in the case of an alienation. I do not think that is a sound proposition. When there is a litigation pending, the widow is also interested in the subject-matter of the litigation and she must have a discretion as to how to conduct that litigation and to come to an arrangement with her opponent, if as a matter of fact she believed that it would be in the best interests of the estate. On the other hand, the reversioner is entitled to show that the compromise was not arrived at with due care and caution and was such as really showed negligence on the part of the widow. It is true that she had succeeded in the two lower Courts, and Krishnasami Iyer, her opponent, had to prove that the Courts or at any rate the lower Appellate Court was wrong on a question of law before he could succeed in second appeal. But having looked into the judgment of the District Court, I am not satisfied that the adviser of the 1st defendant was not justified in advising her to settle the dispute by private arrangement. She was represented by a Pleader and he signed the razinamah as well as the 1st defendant herself. And if we look also to the value of the properties involved in that litigation and the amount received by the 1st defendant as consideration for the compromise taking into account the mesne profits she had enjoyed, it is impossible to say that the compromise was not a justifiable transaction. In fact I am not sure that it was not quite advantageous to the 1st defendant. I think on this point also the conclusion of the Subordinate Judge is right.

3. Items Nos. 3 to 11 refer to manaikat lands and are of a small value. There are items which the 1st defendant released her claims to by Exhibit E shortly after the razinamah with respect to items Nos. 1 and 2. It is true that these lands are not mentioned in the razinamah; but there can be no doubt that they formed part of the consideration for the compromise of the second appeal. This appears from the recitals in Exhibit E and also from the evidence of the uncle of the 1st defendant, the 2nd witness for the defendants. These lands are in the nature of house sites which would be utilized by the tenants for the cultivation of items Nos. 1 and 2, and naturally when the parties arrange with regard to items Nos. 1 and 2 they would include these items as well in the arrangement.

4. Appeal No. 176 will also be dismissed. There will be two sets of costs one set to respondents Nos. 6 and 7 and another set to the 3rd respondent; the 3rd respondent will only be entitled to Rs. 50 as Pleader's fees.

Srinivasa Aiyangar, J.

5. I agree.


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