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T.R. Govinda Chetty Vs. Rangammal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1929Mad261
AppellantT.R. Govinda Chetty
RespondentRangammal
Cases ReferredGopala Aiyar v. Ramasami Sastrial
Excerpt:
- .....order. has full power to go into the whole case on the merits and see whether on the evidence the decree passed is proper. in this case it is clear from the proceedings before the learned judge that the case was adjourned twice after the review was granted and ultimately the decree was modified. the question now is not limited to the propriety of the order granting review so as to confine us to limitations imposed by rule 7. what we have to see is whether the decree which was ultimately passed is correct having regard to the evidence in the case and it is difficult to see how we can on hearing the appeal confine ourselves to considerations based upon order 47, rule 7, and refuse to grant the merits of the appeal against the amended decree. it is open to the plaintiff to attack the.....
Judgment:

Kumaraswami Sastri, J.

1. This is an appeal against an order of the learned Judge on the original side granting a review of the judgment and amending the decree. The order appealed against is printed on p. 14 of the printed papers. It runs as follows:

1. That the said decree dated 3rd February 1926, be amended by including therein the following clauses, viz,:

(a) That defendant 6 is entitled to provision for residence in house and premises No. 41, Badrian Street.

(b) That the room marked A in red pencil in the plan attached hereto and situate between the 1st and the 2nd compartments of the said house be allotted for use of defendant 6 as a kitchen, eating room, store room, etc., and that the room marked B in the said plan and situate in front adjoining the street verandah be allotted for living, sleeping, etc.

(c) That defendant 6 be also entitled to the use of the common passages, pipes, lavatory, washing places, etc.

(d) That defendant 6 shall have no right to let or sub-let the portion allotted to her as aforesaid and that she is allowed to entertain guests or relations in the portion allotted to her so long as he or they do not encroach upon or occupy any other portion of the house.

2. I mention this in extenso as a preliminary objection has been raised that no appeal lies from this order. It is conceded that the original decree does not contain these provisions. The plaintiff and defendant 1 are brothers. Defendant 3 is the stepbrother of defendant 1. Defendant 6 is the mother of defendant 3 and stepmother of the plaintiff and defendant 1. The suit was for partition and in the plaint a maintenance of Rs. 35 was offered. Defendants 1 to 5 filed a joint written statement stating that the maintenance ought to be Rs. 50. Defendant 6 filed a written statement adopting the written statement of defendants 1 to 5. When the case came on for trial, the parties wanted to compromise. They adjourned to the Chambers of Srinivasa Iyengar, J., and certain terms were discussed and agreed to. There were other terms which had to be arranged and so the matter was adjourned. But in the Chambers of Srinivasa Iyengar, J.,' all the parties agreed that defendant 6 should have maintenance at Rs. ,60 a month and residence in house and premises No. 41, Badrian Street, some other matters were left over. Ultimately there was a razinama agreement signed by all the parties including defendant 6. The razinama petition gave maintenance at Us. 60 but there was no provision for residence. This petition was explained to defendant 6 and the other parties by the interpreter of this Court. When the case came on before the Court as some minors were concerned and the consent of the Court was necessary it was mentioned that there was a slight variation in the razinama though the nature of the variation was not stated, and the learned Judge sanctioned the compromise on behalf of the minors and directed a decree to be passed in terms of the razinama. The decree in terms was passed on 3rd February 1926.

3. On 30th April 1926, an application was made by defendant. 6 to review the compromise decree and to have the decree amended by including therein a provision for the residence of defendant 6 in house No. 41, Badrian Street, Madras, and for staying defendant 1 from ejecting defendant 6 and for fixing the portion in which defendant 6 was to reside. The only affidavit in support of this application was that of defendant 6 in which after stating that there was a compromise at the time of the hearing of the suit she states that one of the terms was that house and ground 41, Badrian Street, Madras, was to be allotted to the share of defendant 1, at a valuation of Rs. 12,000 and that she should have a right of residence in the said house and that she agreed to the compromise since according to it she was entitled to Rs. 60 a month for maintenance and a right of residence. She then says that when she signed the razinama she took it for granted that all the terms agreed to would naturally have found a place in the razinama and so she readily put her signature to the razinama. Para. 6 of the affidavit is as follows:

I am now informed and believe the same to be true that the provision for my residence in the family house has been either accidentally or designedly omitted in the razinama though my right of residence was particularly mentioned and provided for at the time of the compromise.

4. She then says that defendant 1 wants to turn her out of the house in contravention of the terms agreed to. I may state that this is the only affidavit in support of the application and the only evidence when the matter came on for disposal before the Judge on her behalf was her own evidence. Defendant filed a counter-affidavit in which he states that the razinama signed and filed in Court, was explained to her and she was informed of the change in the original terms-proposed and that she agreed to it and signed the razinama. He denies that any terms were omitted accidentally or designedly. According to defendant 1 the matters which were not agreed to in Srinivasa Iyengar's Chambers were subsequently discussed and defendant 6 said that she was willing to give up her claim to residence if the claim made by any of the parties to the jewels in her possession of the value of Rs. 2,000 were abandoned and this was agreed to by all the parties. Plaintiff 1 filed an affidavit supporting the affidavit of defendant 1. When the matter came on for trial, defendant 6 was examined in support of the application, and on behalf of defendant 1, the vakil for defendant 1, Mr. Srinivasa Raghavan and the vakil for defendant 6, Mr. Thiagaraja Iyer were both examined. Defendant 6 in her evidence states that she was never-informed of any change in the terms first proposed and ultimately omitted in the razinama and that she signed it before the interpreter in ignorance of any such change. She denies that either Mr. Thiagaraja Iyer or Mr. Srinivasa Raghavan informed her of the omission of the right of residence. She admits that the razinama was explained to her in the in terpreter's office. She admits that she signed the document in the interpreter's office. The learned Judge does not believe her evidence when she states that she was never informed that there was any change in the razinama. The other two witnesses are Mr. Srinivasa Raghavan and Mr. Thiagaraja Iyer; Mr. Srinivasa Raghavan states in his evidence that he never told her that she had a right of residence in the house and that there were two rooms in which she could live. This is what he says:

I told her : 'The right of residence clause is delated and if defendant 1 wants you to go out of the house, you have to go out.' She said 'We have agreed and there is no difficulty. So I asked Mr. Thiagaraja Iyer to attend to it, because I was busy.

5. Mr. Thiagaraja Iyer who was her vakil states in his evidence that, before the razinama was taken to Court and explained to her he sent for her in order to satisfy himself whether she had consented to the omission and that she came to his office and said that she had consented. This is what he says as regards what happened in his office:

Q. Did you send for the lady?

A. Yes. On the morning on which this document was executed at 10 o'clock she came to my office.

Q. What did you do?

A. I read to her the razinama and drew her attention to the alteration.

Q. You read the whole of it?

A. Not the whole. I said:

You get maintenance at this rate, and the right of residence does not find a place as consented to originally. Do you consent?She said ' Yes. ' It was on the faith of that-and then I sent her to the interpreter's office. What happened there I do not know.

6. The learned Judge who states in his judgment that he accepts every word of Mr. Srinivasa Raghavan and Mr. Thiagaraja Iyer, does not believe the evidence of defendant 6 when she says that she signed the razinama in ignorance of the fact that the right of residence which was agreed to in Srinivasa Iyengar J.'s Chambers was deleted. There can be no doubt that the razinama was explained to her by the interpreter. It bears her signature and a certificate of the interpreter that it was read out and explained to her. These are the facts. The learned Judge while disbelieving the truth of the story of defendant 6 that she signed without knowing that there was an omission and accepting the evidence of both the vakils who state in the clearest possible terms that the omission was pointed out to her and her, attention drawn to it and there is also the fact that one of the vakils says that he told her that she could be ejected at any time on the razinama as it stood, granted a review of the judgment on the ground that he suspected that defendant 1 would have induced defendant 6 to sign the razinama on representing to her that the omission would make no difference as to her rights. In fact the whole of the learned Judge's judgment is based upon suspicion of what he thinks; would have happened and not upon evidence which was adduced before him. In more than one place the learned Judge says that there is a strong suspicion that fraud was practised by defendant 1 on defendant 6 and she was induced to sign the razinama. We may state at once that there is no evidence that defendant 1 made any representation to defendant 6 or that she was misled into signing the razinama. by reason of any representation which defendant 1 made. Defendant 6 does not say a Word about it. Defendant 1 in his. affidavit denies that the change was not mentioned to her and both the vakils state clearly-and their evidence is believed- that she was informed of the change. Suspicion, though it may be a ground for scrutiny, cannot form the basis of a decision: and we find it difficult to see how on the; evidence it can be said that defendant 1 fraudulently induced defendant 6 to sign the razinama without the clause of residence on any representation that it would not matter or affect her right. On the merits there can be little doubt that the amendment could not be granted giving her the right of residence.

7. Two grounds are taken by Mr. K.S. Krishnaswami Iyengar for the respondent. One is that no appeal would lie from this order of Srinivasa Iyangar, J., amending the decree and that even if an appeal lies the grounds must be confined to the grounds mentioned in Order 47, Rule 7. I have set out the terms of the order and it is clear that this appeal is not from an order granting review but it is from an order which not only grants review but also amends the decree; and the order as-it stands which 'amounts to a decree also is clearly in my opinion a judgment under Section 15, Letters Patent, whatever the case may be, if review alone had been granted and nothing done so as to affect the original decree and the appeal was only from the order granting the review. If that stage has passed and the case reheard and the order of the learned Judge amounts to a decree, as in this case, it is impossible to see how such an order allowing an amendment which is a clear and final adjudication on the rights of the parties as regards the right of residence of defendant 6 inasmuch as it gives defendant 6 the right of residence and to that extent affects the rights of the appellant, is not a judgment within Section 15, Letters Patent I am clearly of opinion that the order appealed against, as it stands, is judgment satisfying the requirements of Clause 15, Letters Patent.

8. As regards the contention that Order 47, Rule 7, precludes us from going into the matter and holding that the amendment ought not to be allowed, I think that the moment the review is granted the whole case is reopened for consideration and where a final decree or order is passed after the review is granted, the final decree or order can be appealed against and in such an appeal what we have to see is whether on the materials before the Court such a decree or order as was ultimately passed could have been passed.. All that is done when a review is granted is that the case is re-opened for consideration and it is open to the parties to appeal against that order on grounds which fall under Order 47, Rule 7. The authorities are that on such an appeal the Court is confined to the grounds set out. in Rule 7; when that stage 'has passed and on rehearing, a fresh decree is passed, the Court, on appeal from the decree or order. has full power to go into the whole case on the merits and see whether on the evidence the decree passed is proper. In this case it is clear from the proceedings before the learned Judge that the case was adjourned twice after the review was granted and ultimately the decree was modified. The question now is not limited to the propriety of the order granting review so as to confine us to limitations imposed by Rule 7. What we have to see is whether the decree which was ultimately passed is correct having regard to the evidence in the case and it is difficult to see how we can on hearing the appeal confine ourselves to considerations based upon Order 47, Rule 7, and refuse to grant the merits of the appeal against the amended decree. It is open to the plaintiff to attack the decree ultimately passed with reference to the materials before the Court at the time of the amended or revised decree and what the appellate Court has to see is whether the evidence is sufficient to support the decree or order appealed against. The question, therefore, before us is whether on the materials before the Court, when the Court amended the final decree there were sufficient grounds to alter the compromise decree originally passed in the way in which it has done. There is no question of res judicata. All that was decided on the application for review was that the case was a fit one for reviewing judgment. We are not concerned with the question whether the learned Judge was right in granting the prayer to review judgment on the materials before him. If the appeal is merely an appeal against the order granting review, it is clear that Order 47, Rule 7 will effectively prevent us from going into the propriety of the order unless the case falls within Rules 2 and 4. What we now have to consider is whether after the case was re-opened there were sufficient materials for amending the decree which was passed by consent. The fact that the appellate Court cannot interfere with the order granting review does not prevent the Court from considering the appeal from the ultimate decree passed after review on the merits and seeing whether the evidence supports the decree or order passed. I need only refer to Nundo Lal Mullick v. Punohanon Mukerjee [1918] 45 Cal. 60, Seetharamayya, v. Veena Tulasi Babu A.I.R. 1924 Mad. 602, Oravukundiyil Parkum v. Palankundy Kunhi Kutty : (1913)24MLJ93 . I do not think Gopala Aiyar v. Ramasami Sastrial [1908] 31 Mad. 49 lays down a different rule or supports the contention of the respondent's advocate that if a Judge grants a review on grounds which give no right of appeal any decree he may finally pass cannot be questioned on the merits. The appeal is allowed with costs throughout.

Ramesam, J.

9. I entirely agree. I do not propose to add to that portion of my learned brother's judgment which deals with the facts of the case But I wish to add a few words with reference to the technical part of the argument of the learned Counsel for the respondent in this case based on the ground that we cannot consider the validity of the order granting review.

10. It is true that an appeal against an order granting a review can be filed only on the grounds mentioned in Order 47, Rule 7. One of the grounds is not that the order was granted without sufficient cause. If a Judge grants a review without sufficient cause, the order cannot be attacked in appeal: see Gopala Aiyar v. Ramasami Sastrial, and the cases referred therein. It is also true that, if an appeal is filed against the final judgment and decree after the review, even then if one of the grounds of appeal is that the order granting the review was an erroneous order, it should be attacked only on the same grounds and no other. But this does not mean that the judgment after preview cannot be attacked on the merits, while submitting to the order granting the review.

11. In the present case the appeal is not merely against the order granting the review but against the final judgment and order in the suit. That appeal has to be disposed of on the merits.

12. Now, what are the merits of this appeal? A compromise petition was filed by all the parties. There is no term in it relating to the residence of defendant 6. The evidence of the two vakils shows that she agreed to that compromise. The learned Judge has believed their evidence. On these materials there is only one decree that can be passed in the case, namely, one in accordance with the razinama.

13. Mr. K.S. Krishnaswami Iyengar argues that this conclusion is inconsistent with the grounds on which the review has been granted. It may be so or it may not be so. It is immaterial for the disposal of the suit. All we have got is an order granting a review-an order the correctness of which we are precluded from considering. We start with it. The result of the order is the whole case is re-opened for disposal by the learned Judge and for disposal by us in appeal. We are not and cannot be bound by the finding of the learned Judge in granting the review. There is no section or decision which lays down that such findings are binding on us. We can differ from his findings in disposing of the case on the merits. I agree with my learned brother in holding that the razinama as finally reduced to writing is binding on defendant 6, and agree to the order proposed by him.


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