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C. Thiruvengada Mudaliar Vs. C. Thangavelu Mudaliar and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1928Mad594; 108Ind.Cas.221
AppellantC. Thiruvengada Mudaliar
RespondentC. Thangavelu Mudaliar and ors.
Cases Referred and Taraprasanna Sarkar v. Kalika Mohan Sarkar
- .....the compromise under some sort of compulsion. mr. subramania ayyar, the son of mr. krishnaswami ayyar and a vakil of this court, has been examined on behalf of defendants 1 to 7. his evidence is very circumstantial and describes in great detail how the compromise was put through. it was the plaintiff that first approached him and the witness even believed that he was acting for him. the question naturally arises: how does it come about that the parties did not avail themselves of their own vakils and sought the help of a stranger vakil? i shall pass over the evidence of mr. subramania ayyar and the first defendant on this point, for the matter is described very vividly by mr. krishnaswami mudali (uncle of the plaintiff and defendant 1) with whose evidence i have been very well.....

Venkatasubba Rao, J.

1. This is an application to enforce a compromise is a suit for partition. Defendants 1 to 7 make the application and it is resisted by the plaintiff The suit relates to a Hindu family consisting of three branches. The plaintiff is the sole representative of his branch; the 8th defendant represents another branch and the third branch is represented by the defendant 1 and sons, defendants 2 to 7. Defendant 8 allowed the suit to proceed ex parte and the compromise was only as between defendants 1 to 7 on the one hand and the plaintiff on the other.

2. The terms were reduced to writing and engrossed in Tamil on a stamp paper. The arrangement is an extremely simple one. The first defendant and his sons agreed to pay the plaintiff Rs. 8,000 in full settlement of his claim in the family properties. The deed says that the plaintiff was thereafter to have no concern with the properties of the family, with the outstandings due or the debts payable. Defendants 1 to 7 were to pay the amount of Rs. 8,000 within one month from the date of the decree. A charge was to be created on the properties for this sum and as defendants 5, 6 and 7 are minors, sanction of the Court should be obtained on their behalf to make the compromise binding upon them. As I have said, the terms are so simple that any one perusing the document can easily understand them. The effect of the agreement is that the plaintiff receives Rs. 8,000 and separates himself from the family. It is impossible therefore to uphold the contention that the terms were not understood by him. The plaintiff now pretends that he was not even aware whether the agreement he signed was in English or in Tamil. This is on the face of it an absurd lie. It is alleged that he is deaf and partly blind.

3. It was sought to be made out that be was stone-deaf, but the attempt has utterly broken down. He was in the witness box for a considerable time and was able to hear every question put to him, only the interpreter was obliged to speak a little louder than usual. Then in regard to the other infirmity alleged, it is a gross exaggeration to say that he is partly blind. He was able to read his own signature and when sufficient light was allowed, also some portion of the rest of the document; I am convinced that for the purpose of this application, his infirmities, such as they are, have been magnified beyond limits of trust.

4. The compromise has a curious history. The plaintiffs' vakil was Mr. Anandalwan. Defendants 1, 5, 6, and 7 appeared by Mr. Sivaprakasa Mudaliar and defendants 2, 3, and 4 by Mr. V. C. Gopalaratnam. The plaintiff suggests in his counter-affidavit that he was not permitted to interview his own vakil and that, on the other hand, he was forcibly taken to the advocate, Mr. G. Krishnaswamy Ayyar's house where he was made to sign the compromise under some sort of compulsion. Mr. Subramania Ayyar, the son of Mr. Krishnaswami Ayyar and a vakil of this Court, has been examined on behalf of defendants 1 to 7. His evidence is very circumstantial and describes in great detail how the compromise was put through. It was the plaintiff that first approached him and the witness even believed that he was acting for him. The question naturally arises: How does it come about that the parties did not avail themselves of their own vakils and sought the help of a stranger vakil? I shall pass over the evidence of Mr. Subramania Ayyar and the first defendant on this point, for the matter is described very vividly by Mr. Krishnaswami Mudali (uncle of the plaintiff and defendant 1) with whose evidence I have been very well impressed. He deposes that the plaintiff was making complaints against his vakil Mr. Anandalwan, saying that the vakil got him to execute a writ-ting for Rs. 2,100 in favour of a third party who was to finance the suit and further got him to sign his name in the vakil's diary promising to pay him an additional sum of Rs. 1 500. There is evidence that the plaintiff was making other suggestions against his vakil. I am not now concerned with the truth or otherwise of these charges. Indeed there is not material enough on which I can base a finding on this point; nor is it necessary to do so for the disposal of this application. The charges may well be false; but the clear conclusion to which I have come is, that the plaintiff at that time was for some reason anxious to avoid his own vakil. The plaintiff would not of course confide in the other vakils engaged in the case, Sivaprakakam and Mr. Gopalrathnam who were appearing for Ms opponents. The only alternative thus remained of finding an independent professional gentleman. The matter was fully discussed at Mr. G. Krishnaswami Ayyar's house, more than three hours were spent and the result was the execution of the rajinamah in question. It is spoken to by several witnesses, whom I regard in the main truthful. Mr. Subramania Ayyar probably might have done his work with some more care and a little more skilfully, but in regard to his good faith there can be no question. He acted throughout with the best of motives and perfectly honestly. I have seen him in the witness-box and I am prepared to act upon his evidence. There is nothing unfair about the terms in the compromise. Even the plaintiff does not suggest that he expected at any time more than Rs. 8,000. All that he says is, that he believed that under the rajinamah he was getting in addition to Rs. 8,000 what is loosely described in the evidence as a ' bazar.' It is not a bazar in any sense of the term. A devasthanam owns several bazars and they are let out to various individuals for a premium paid in advance. The members of this family are the lessees of soma bazars of this kind. What the plaintiff means is that he believed that he would get a right to carry on business in one of such bazars. On this point the evidence of Krishnaswami Mudaliar is very relevant. He says that the plaintiff at one time mentioned a bazar, that there was a discussion about it between him and the witness, that it was pointed out that it would not be desirable for the plaintiff to engage himself in business, that the bazar was ultimately dropped and in the final discussion between the parties there was no reference made to it at all. This is perfectly straightforward evidence and I am prepared to act upon it.

5. It must be next observed that the idea of a compromise was not suddenly conceived. Id is in evidence that Mr. Anandalwan himself at one time suggested that if a lump sum payment of Rs. 7,500 was made, coupled with a monthly allowance of Rs. 25, his client would withdraw the case. At another time, the same vakil suggested that if Rs. 7,000 was paid with a monthly allowance of Rs. 15 his client would give up his claim. Thus the present compromise was gradually evolved and the plaintiff entered into it quite willingly and with due deliberation. There is not the slightest doubt that he now wants to dishonestly back of the compromise under evil advice.

6. Mr. Anandalwan suggests in his argument-a point not taken in the counter-affidavit-that the clause to the effect that defendant 3 also consents to the compromise was interpolated in the rajinamah. This suggestion is absolutely unfounded and his contention that there has been a material alteration after the compromise was effected, is equally untenable. What really happened was, after the principal parties, the plaintiff and defendant 1, executed the compromise in the house of Mr. G. Krishnaswami Ayyar, it was taken to the house of Mr. Sivaprakasam where the sons of defendant 1 executed it. This certainly does not render the compromise invalid and it is not even suggested that the so-called alteration was in the slightest degree detrimental to the plaintiff.

7. Finally Mr. Anandalwan says that in law a compromise of a partition suit is ineffectual unless every party to the action joins in it. He has cited Nityamoni Dasi v. Gokul Chandra [1911] Cri.L.J. 16, Gobind Chandra v. Bhagubat Sardar 27 Ind.Cas 242, and Taraprasanna Sarkar v. Kalika Mohan Sarkar : AIR1924Cal80 ; but these cases do not even touch the point. It is undoubtedly true that in some eases there may not be a valid and lawful compromise unless all the parties join in effecting it; but each case must depend upon its own facts. I shall illustrate my position by taking two or three examples. Suppose A, B and C, are members of a joint family. If the compromise is entered into between A and B under which A gets a half, but as C is not a party to the compromise A gets against him only a third, it would be impossible to recognize such a compromise. Again suppose B gives up to A under the compromise some specific valuable items of property. It would be open to 0, not being a party to the compromise, to urge that he would not agree to those items being taken by A. In such a case it would be futile to ask the Court to enforce the partial compromise. Again, 1 may vary the illustration by supposing that B admits some items to be joint family properties and on that footing enters into a compromise with A.C, who is not a party to the compromise, contends that those items are his self-acquisitions. Surely no Court would in such a case recognize and enforce the compromise. The facts of this case are entirely different. The plaintiff, on receiving Rs. 8,000, goes out of the family altogether and the property then belongs to the remaining members, though I need not decide now in what shares they hold it inter se. This contention is, therefore, overruled and I find that a valid and lawful compromise was entered into between the plaintiff on the one. hand and defendants 1 to 3 on the other. I am asked to sanction the compromise on behalf of the minor defendants. Defendant 1 says that the compromise is beneficial to his sons and Mr. Sivaprakasam has filed the necessary certificate. I am satisfied that the compromise is in the interests of the minor defendants and I accordingly sanction it. I pass a decree in terms of the rajinamah. In regard to the costs of this application,, the defendant's vakil asks me to fix a fee of Rs. 250. Although much of the time has been wasted by the plaintiff, I think Rs. 150 would be a reasonable fee and I fix it accordingly (one set for the contesting defendants). Defendant 8 who has up till now allowed the suit to proceed ex parte now appears and says, that he opposes the compromise. He is not a party to it and he is not bound by it. He is merely a creature of the plaintiff fetched at the last moment to support him in his dishonest attempt to get rid of the compromise.

8. C.S. No. 151 of 1926-I have just. delivered judgment enforcing the compromise between the plaintiff and defendants 1 to 7. The effect of the judgment is that the plaintiff goes out of the case and the suit stands withdrawn. Defendant 8, who up till now has allowed the suit to proceed ex. parte, chooses to appear at the eleventh hour and ask me to transpose him as plaintiff and give him liberty to carry on this litigation as against defendants 1 to 7. He has taken this step in collusion with the plaintiff and neither in justice nor in law can he be permitted to adopt this course. The facts have completely altered since the institution of the suit, No longer is the property to be divided into three shares; but the point that has to be tried is: Has the plaintiff's share passed to defendants 1 to 7 alone or has it passed to all the defendants? Practically, it is a question of new pleadings, fresh issues and a fresh trial, and the party that asks me to give him this indulgence is the man who kept himself in the background and appears at the last moment to lend support to the dishonest plaintiff. My order in the case is, therefore, the one which I passed on the application.

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