S. Maharajan, J.
1. The second defendant appeals.
The suit out of which the appeal arises was laid in forma pauperis by respondents 1 to 3, who were minors and were represented by their next friend and mother Kamalammal, for partition and separate possession of their 3/8th share in the suit properties with mesne profits and costs. Sadagopan, who is no other than the father of the plaintiffs (respondents 1 to 3) was impleaded as the first defendant (fourth respondent herein). Najjathambi Goundan, the appellant, figured as the second defendant in the suit.
2. The facts leading to the institution of the suit may be briefly stated : Vijayaraghavan, Venkatesan and Ranganathan, the plaintiffs in the suit, are the three, sons of Sadagopan, the first defendant, whose father Venkatesa Iyengar instituted two suits O.S. Nos. 2 and 26 of 1945 on the file of the Sub-Court, Salem, for specific performance of two agreements of sale in respect of the suit properties. One agreement related to a portion of the suit properties and had been concluded between Venkatesa Iyengar and Ramaswami Goundan, the father of Nallathambi Goundan, the second defendant in the suit. The other agreement related to the remaining portion of the suit properties and was concluded between Venkatesa Iyengar, on the one hand, and one Perumal Chetty, on the other. Before the trial of the suits commenced, Venkatesa Iyengar died and his son Sadagopan impleaded himself as the second plaintiff in both the suits, and continued the suits as the legal representative of his deceased father. Ramaswami Goundan, the father of the second defendant also died pendente lite with the result the second defendant was impleaded as heir of Ramaswami Goundan, and the suits were proceeded with. The trial Court dismissed both the suits. Thereupon, Sadagopan preferred A.S. No. 186 of 1947 and A.S. No. 12 of 1948 on the file of the High Court. By judgment, dated 11th January, 1950, a Bench consisting of Govinda Menon and Basheer Ahamed Sayeed, JJ., allowed both the appeals (Vide Exhibit A-1) with the following observations:
In view of what we have stated above and our finding in regard to the genuineness of Exhibits P-1 and P-2 and the failure on the part of the plaintiffs (Venkatesa Iyengar and Sadagopan) to prove payment of consideration we set aside the decrees of the learned Principal Subordinate Judge of Salem and direct the first and third defendants in O.S. No. 2 of 1945 (Perumal Chetti and Nallathambi Goundan respectively) to transfer, convey and assign the one half share of all the suit properties in favour of the present appellant (Sadagopan) on receipt from the appellant (Sadagopan) of the sum of Rs. 1.930 and Rs. 536-4-0 being half the consideration paid into Court for the purpose of the suit properties and deliver possession of the said half share of the properties to the present appellant (Sadagopan) after partition and also to execute the necessary documents to effectuate the said transfer. We further direct that each party will bear his costs throughout and that there will be no claim for either party in. respect of the mesne profits.
Nallathambi Goundan, the second defendant in this suit, preferred appeals to the Supreme Court in Civil Appeal Nos. 15 and 16 of 1964 against the said judgment of this Court. But both the appeals were dismissed by the Supreme Court on 21st November, 1958. Meanwhile, Sadagopan applied in I.A. Nos. 19 and 73 of 1953 to the Sub-Court, Salem, for the grant of final decree after division of the suit properties into two equal moieties and allotment of one such moiety to him. In these applications, he also prayed for ascertainment of the mesne profits. A Commissioner was appointed by the Sub-Court, Salem, in these final decree applications. But before the final decree could be granted the proceedings were stayed pending disposal of the appeals filed in the Supreme Court. According to the plaintiffs, though the Supreme Court dismissed the appeals on 21st November, 1958, information of dismissal was received at Salem only on 24th November, 1958. The very next day, a document was presented for registration before the Sub-Registrar at Omalur, whereby the first defendant, was alleged to have received from the second defendant a sum of Rs. 5,000 in cash and 10 acres of land, and relinquished his claim to the rest of the properties and to mesne profits and costs. The suit properties are about 103 acres in extent; besides a right to a half therein, Sadagopan was also entitled on account of his half share of mesne profits, to a sum of Rs. 17,938-00 for the period from 1st April, 1950 upto 15th December, 1958 at the rate of Rs. 4,120 per annum. The complaint of plaintiffs was that the second defendant, taking advantage of the fact that Sadagopan was not endowed with sufficient education or intelligence, fraudulently and collusively obtained are case deed from him and filed applications in the two suits on 1st December, 1968, praying for the grant of final decrees in accordance with the terms of the release deed, and obtained such decrees on 31st January, 1959. It was also the complaint of the plaintiffs that Sadagopan neglected to support his wife and children and was living away from them during the five years preceding the date of the release. The relinquishment effected by Sadagopan was detrimental to the interests of the plaintiff and was not binding upon them. Consequently, the plaintiffs prayed (1) for a declaration that the final decrees passed in the aforesaid suits and the orders recording full satisfaction of the final decrees were fraudulent and collusive and void and not binding on the plaintiffs; (2) for a decree setting aside the same; and (3) for partition and separate possession of the plaintiffs' 3/4th share out of the half share in the family properties and for payment of interim mesne profits of Rs. 13,453 and future mesne profits at the rate of Rs. 1,545 per year from the date of suit till delivery of possession.
3. In their separate answers (prepared by the same Counsel), the first defendant/Sadagopan) and the second defendant (Nallathambi Goundan), attacked the plaintiffs' claim as false and unsustainable and as not being for the benefit of the minor plaintiffs. In the first defendant's answer, the plaint allegation that the first defendant was not endowed with sufficient education or intelligence was vehemently denied. Though the first defendant admitted that the plaintiffs were living in their maternal grandfather's house alone with their mother for the previous five years, he asserted that they used to visit him now and then. The plaint allegation that the half share in the suit properties would be worth Rs. 50,000 was denied, and the allegation that the annual mesne profits from the suit properties would come to Rs. 4,120 was characterised as and exaggeration, though the fact that the first defendant would be entitled to mesne profits from 1st April, 1950 was admitted. As some of the lands were in possession of the third parties and the other lands were in possession of the second defendant's tenants, the first defendant, felt that he could not get actual possession without taking legal proceedings against third parties and the other tenants. Further, the lands were not in good condition on account of the prolonged litigation and several acres of land were uncultivable and the first defendant was not in a position to reclaim the same and bring them under cultivation. According to the 1st defendant, after taking these factors into consideration, he agreed to receive five acres of the best garden lands and five acres of very good dry lands which could be brought under garden cultivation and cash of Rs. 5,000. Further, under the compromise the first defendant became entitled to receive back the amount of Rs. 2,500 deposited by him in the Sub-Court for specific performance of the decree. Respectable panchayatdars inspected the properties, took all relevant factors into consideration and effected the settlement which was bona fide and prudenr in the circumstances of the case. Furthei, the first defendant did not conduct the suits in the Sub-Court as the manager of the joint family. If he did, the compromise entered into by him would be binding on the plaintiffs.
4. The second defendant contended inter alia that the final decrees in O.S. Nos. 2 and 26 of J. 945 and the orders recording full satisfaction of both the decrees were not the result of fraud or collusion and had become final and binding upon the plaintiffs who were disentitled to question the same.
5. The learned Subordinate Judge held, upon a consideration of the entire evidence, (1) that the first defendant had inherited from his father the right to enforce specific performance of the agreement of sale and that right which ripened into two decrees for half share in the suit properties was undoubtedly ancestral property, in which the plaintiffs acquired a 3/4th share by birth; (2) that taking all the circumstances into consideration, Exhibit B-l, the release deed executed by Sadagopan in favour of Nallathambi Goundan was highly prejudicial and detrimentl to the interests of the plaintiff, that it did not embody a bona fide transaction, but was the result of fraud and collusion between the defendants 1 and 2 and had conferred no benefit upon the plaintiffs or their family, and was, therefore, not valid and binding on the plaintiffs; and (3) that the applications made by the defendants 1 and 2 to record satisfaction of the final decrees were also vitiated by fraud and collusion and, therefore, not binding on the plaintiffs. In the result, the trial Court granted a decree as prayed for with costs, and directed that mesne profits be ascertained at the time of the final decree and that the defendants should pay the Court fees due to the Government.
6. It is against this decision that the present appeal has been filed.
7. Before investigating the true scope and effect of Exhibit B-1, the registered partition release deed executed by Sadagopan (the first defendant) and Nallathambi Goundan (the second defendant) on 24th November, 1958, it is necessary to examine the antecedents of the parties and the relationship inter se between Sadagopan and the members of his family, on the one hand, and between Sadagopan and Nallathambi Goundan, on the other, at the time of Exhibit B-1. The mother of the plaintiffs died pendente lite and was not available to give evidence about the relationship between Sadagopan and his family during the relevant years. The first plaintiff, who was examined as P.W. 1, asserted in his evidence-in-chief that his father Sadagopan was working in a hotel at Salem, (presumably as a cook) whereas he and his two brothers and one sister were living along with their mother in their grandfather's house at Dhankanikotta. It is also P.W. 1's evidence that Sadagopan had no property whatsoever and that he did not maintain or help his family during the ten years prior to the date of his deposition (30th August, 1968). No question vas put in cross-examination challenging P.W. 1's evidence - chief to the above effect. Sadagopan withheld himself from the witness box, with the result that there was no evidence on the side of the defendants to controvert the plaintiffs' case that there was no love lost between Sadagopan and the members of his family and that he was living in separation from them during the relevant time. In fact, the uncontradicted testimony of P.W. 1 is that Sadagopan did not even care to attend the funeral of his wife. Then, we have the evidence of P.W. 2 (Srinivasa Iyengar), who is a retired Accountant of the Salem Collect orate. He is aged 61, and he has asserted that Sadagopan left his wife and children in the lurch in the year 1952 and has been living separately ever since. It is also his evidence that it was Sadagopan's father-in-law who was maintaining Sadagopan's wife and children, and one K. Srinivasaraghavan, the brother-in-law of Venkatesa Iyengar, was making a monthly payment of Rs. 20 for the maintenance of the plaintiffs and their mother. Then, we have the evidence of P.W. 5 (Govindaraja Iyengar), who is a pleader practising at Salem, and who appeared for Sadagopan and filed final decree application in O.S. Nos. 2 and 26 of 1945. It is his evidence that Sadagopan was 'wandering like a mad man' since 1954 and was not maintaining his family. It is interesting to contrast the evidence of these knowing and competent witnesses; with that of D.Ws. 1 to 3, whose ignorance of the relationship between Sadagopan and the members of his family is revealing. D.W. 1 (the second defendant) says:
I do not know if K.S. Raghavan protected the family members of the first defendant by giving them aid. I do not know if the first defendant is doing work in the hotel.... I did not enquire if the first defendant has male children then, ' (that is to say, at the time of the panchayat and the release deed).
P.W. 2 (Kandaswamy), who is a document writer and who has written Exhibit B-1, the impugned release deed, says:
Though I know the first defendant for 30 years, I did not know if he had sons. I did not know where they were then.
D.W. 3 (Subramaniam), who has attested Exhibit B-1 and who claims to have functioned as a mediator at the panchayat between the defendants 1 and 2, says:
I know the first defendant for last six years. I know he has wife and children. He has sons, but I do not know the number. I did not suggest to him to execute the deed on behalf of minors also.
It will thus be seen that the defendants' witnesses, far from rebutting the plaintiffs' case that Sadagopan lived away from 'the members of his family and was unconcerned with and indifferent to their interests, reinforce the plaintiffs' case by. suggesting that at the lime of Exhibit B-l, either they were unaware of the existence of the sons of Sadagopan, or if they were aware, they did not take their interests into consideration in arriving at the settlement in pursuance of which Exhibit B-1 was executed. In this context, one other circumstance of importance may be noticed. Un-like the common run of Hindu fathers who instigate their sons to file suits for setting aside their alienations and then remain ex parte or file written statements strongly supporting their sons, Sadagopan has filed an answer in this suit vehemently opposing the claim of his sons and stoutly championing the cause of the second defendant. The circumstance that the statements of Sadagopan and Nallathambi Goundan had been prepared by the same Counsel is not without sinister significance, and goes a long way to fortify the plaintiffs' case that Sadagopan had discarded the members of his family five years earlier, and being a man of weak intellect and in distressed circumstances was prevailed upon to enter into Exhibit B-1 in utter disregard of the interests of his sons.
8. The abruptness and the undue haste with which Sadagopan entered into the transaction embodied in Exhibit B-1 makes one wonder whether this weak-willed and needy man has not been beguiled into the transaction while he was still unaware of the Supreme Court's judgment in his favour. Be it noted that the two suits for specific performance were filed by Sadagopan's father in 1945, and were pending for over the thirteen long years without being settled. These suits were bitterly contested by Nallathambi Goundan (the second defendant). After the death of Venkatesa Iyengar, before the trial of the suits commenced, Sadagopan was brought on record as the second plaintiff. He was a pauper, and according to P.W. 5, the Advocate, viho appeared for him, Srinivasaraghavan, the brother-in-law of Venkatesa Iyengar, was financing Sadagopan throughout. When on 11th January, 1950, this Court decreed the suits and directed Sadagopan to pay about Rs. 2,500 to the second defendant as condition precedent to his getting half share in the properties, it was Srinivasaraghavan, who came to the rescue of Sadagopan by paying Rs. 2,500 to him and enabled him to deposit the amount within the time prescribed. P.W. 5, Govindaraja Iyengar, the Advocate, who appeared for Sadagopan in the final decree proceedings, proves that it was K.S. Raghavan, who was Superintendent of the Tambaram Railway Station at that time, who sent the amount which he deposited in Court. It is also the evidence of P.W. 5 that a Commissioner was appointed in the final decree proceedings, and a fee of Rs. 350 was paid to him out of the monies supplied by K.S. Raghavan. It may be noticed that though by virtue of the decree of this Court dated 11th January, 1950, Sadagopan had become entitled to a half share in the suit properties, he could not get a final decree, because the second defendant took, the matter in appeal to the Supreme Court and got the final decree proceedings stayed. The evidence is that during the pendency of the appeals, before the Supreme Court and at the instance of their Lordships of the Supreme Court, several attempts were made to effect a compromise between the parties, but all of them failed with the result the Supreme Court felt constrained to deliver judgment on the merits on 21st November, 1958, confirming the judgments of this Court. By virtue of the judgment of the highest Tribunal in the land, Sadagopan had become entitled, without any further possibility of challenge, to an undivided half share in the suit properties, of an extent of about 100 acres. If Sadagopan was aware of the judgment of the Supreme Court in his favour on 21st November, 1958, one would expect him to rush back to P.W. 5, his Advocate, who was in charge of the final decree proceedings and urge him to go ahead with the proceedings and expedite the passing of the final decree the failure of Sadagopan to do so arouses legitimate suspicion. P.W. 5, his Advocate, says that after the disposal of the appeals by the Supreme Court, Sadagopan did not come to him at all. What is it that prevented him from meeting P.W. 5, his own Advocate, and taking Counsel with him as to his future course of conduct? Evidently, some forces were at work, which were determined to keep Sadagopan, the hotel cook, in the dark about the Supreme Court's judgment in his favour and to deprive him of the guidance and advice of his own Counsel. We shall refer at the appropriate place to the fact that the compromise ultimately field by Sadagopan and Nallathambi Goundan in pursuance of Exhibit B-l was filed behind the back of Sadagopan's Counsel and without his signature and despite his persistent opposition.
9. Unlike the 1st defendant, who is an illiterate and presumably imbecile hotel cook, Nallathambi Goundan the 2nd defendant appears to be masterful personality, commanding great influence in the locality. On his own showing he had spent Rs. 12,000 towards the litigation expenses in all the Courts, and he went to Delhi three times while the Supreme Court appeals were pending. Admittedly, he was in Delhi on the date the Supreme Court delivered judgment against him. At once, he sent a telegram to one Kuppanna Goundan of Omalur on 21st November, 1958. The telegram itself has not been produced. Probably, it instructed Kuppanna Goundan to get at Sadagopan wherever he might to be and strike the iron white it was hot. On the same night, says D. W. 1 (the second defendant), he flew by plane from Delhi to Madras, and the next day (22nd. November, 1958), he rushed to Omalur by car and stayed in the Travellers Bungalow there, Almost immediately after his arrival. Sadagopan is said to-have made overtures to him for a compromise and he (D-2) readily agreed. D-2 would make it appear that ten panchayatdars from seven different villages came to him along with. Sadgopan and that he does not know who brought these panchayatdars. The attestors to Exhibit B-1 appear to be influential persons and most of them are Goundars, and none of them belongs to-the community to which Sadagopan belongs. One of the attesters has described himself as the President of the Omalur Panchayat, Secretary of the Co-operative Union, Omalur and President of the Omalur Co-operative Bank. Another is the President of Periyapatti Panchayat. The third is the President of the Palayam Panchayat, Another is the Manager of Sovarnambigai temple. It is said that all these persons inspected the suit lands and effected a settlement in pursuance of which Exhibit B-l was executed. D.W. 3 is a Goundar, who is the only panchyatdar examined on the side of the defendants. D.W. 2, who is the scribe of Exhibit B-1, would say that he was also present at the Panchayat. The admissions made by D.W. 2 in cross-examination raise serious doubts that during the panchayat talks, Sadagopan was not aware of the result of the Supreme Court appeals. According to D.W. 2 he knew that there was litigation between Sadagopan and the second defendant for several years before 21st November, 1958, on which date Sadagopan invited him to attend the panchayat and told him about the pending case But surprisingly enough D.W. 2 says, that Sadagopan did not tell him on that date if he had won or lost the case before the Supreme Court. He adds:
I did not know on 21st November, 1958, what happened to the case. I knew in the evening of 21st November, 1958, that the first defendant succeeded in the suits.
He also says that Kuppanna Goundar (who must be the person to whom the second defendant had sent a telegram from Delhi) told him and the panchayatdars of the result of the litigation, and only thereafter he came to know about it. From his later answers, it appears that this information must have been withheld from the first defendant, for D.W. 2 says that the first defendant told him that he could not say what was the result of the suit. The disastrous implications of this admission must have become apparent by the time D.W. 3 stepped into the box. So. D.W. 3 began to say that on 21st November, 1958, when the first defendant and Kuppanna Goundar came to invite him for the panchayat, the first defendant told him that he had succeeded in the Supreme Court, whereupon D. W. 3 asked the first defendant pertinently enough, whether any panchayat was necessary at all, in view of the fact that he had succeeded in the litigation. In answer to this intriguing question, the first defendant is alleged to have told D.W. 3 that tenants were in possession of the suit lands and as he had no money to evict them, he wanted a settlement. This answer of D.W. 3 is evidently intended to neutralise the effect of D.W. 2's deposition that the first defendant was ignorant of the result of the litigation at the time the panchayat proceedings commenced. Reading between the lines, we think it legitimate to infer that the second defendant who was in Delhi at the time the Supreme Court dismissed his appeals, rushed back to Omalur by plane and car and bustled Sadagopan into the disputed agnation while Sadagopan was still ignorant of the result of the Supreme Court appeals.
10. While discussing 'Sadagopan's ignorance of the dismissal of the Supreme Court appeals, we have not overlooked the fact that Exhibit B-l specifically recites that the Supreme Court appeals had been dismissed. But, we have grave doubts whether Sadagopan himself perused and understood the implications of this lengthy document. There was nobody present at that time and interested in Sadagopan, to read Out and explain to him the entire document to enable him to understand the implications thereof. Indeed (here is no such evidence. Further, a scrutiny of the terms of Exhibit B-1 leaves no room for doubt that Exhibit B-1 had been prepared with the assistance of expert legal advice, introducing several artificial and false recitals, all solely for the protection of the second defendant and with a view to safeguard his interests at the cost of the first defendant. The very recitals betray that Sadagopan could not have honestly believed in the truth thereof. We have no hesitation in holding that Sadagopan was made a victim of the machinations of the second defendant and Sadagopan's illiteracy and helplessness, on the one side, and his strained relationship, with his wife and children, on the other side, were fully exploited by the second defendant in securing Sadagopan's signature to Exhibit B-1, care having been taken to see that Sadagopan was not allowed to consult or have contact with P.W. 5 Govindaraja Iyengar, the family lawyer. P.W. 5 himself who has been conducting this litigation and evincing more than personal interest therein, came to know only on 24th November, 1958 that the Supreme Court appeals had been dismissed. It is, therefore, exceedingly unlikely that the first defendant would have known the result earlier than P.W. 5 and especially, when the terms of the compromise were negotiated and settled and Exhibit B-1 came to be executed.
11. The document, which purports to have been executed on 24th November, 1958, has been engrossed upon stamp papers purchased on that very day and presented for registration before the Sub-Registrar of Omalur on 25th November, 1958, itself, though, due to certain objections raised by the Sub-Registrar, it was actually registered only on 19th July, 1961 (nearly three years later). The question arises whether this document has not been executed with unholy hurry and whether the several things that are said to have taken place during the panchayat, could really have taken place during the short interval of time (literally two days) between the arrival of the second defendant from New Delhi on 22nd November, 1958 and the completion and execution of Exhibit B-1 on 24th November, 1958. It is recited in the document, and it is also the evidence of D.Ws. that in the course of the panchayat, the first defendant wanted that the several tenants in occupation of the lands to be allotted to him should be evicted from the lands and vacant possession delivered to him. According to D.W. 2, the 2nd defendant, some persons had put up houses in 3 acres in item 1 and several Harijans and Muslims were in occupation of ten acres of items 2 and 3 (1), and at the request of the first defendant, the panchayatdars wanted the second defendant to evict all these persons, whereupon the second defendant on the spot is alleged to have paid Rs. 1,800 to the cultivators and persuaded them to deliver possession to the first defendant We are not told how, many cultivators (there were on the land, and who they were. This incredible version is worse then a fairy tale; it would indeed be a remarkable feat even for an influential man like the second defendant to have persuaded the tenants claiming permanent rights of cultivation to vacate the lands and that too, in the course of a day and at such short notice in consideration of the alleged payment of Rs. 1,800. If the tenants having permanent occupancy rights were really evicted, one would expect the parties to have secured documents from them, in proof of the fact they had surrendered their rights. But no such document was obtained. Nor indeed are we convinced as to why the first defendant, who is a pauper, should have taken a fancy for evicting the tenants instead of asking them to attorn to him and pay rent to him. We are satisfied that the alleged eviction of tenants is a myth and it has been introduced with the deliberate instent to justify a transaction of surrender, which is, from any point of view unjustifiable.
We shall next examine if the arrangement embodied in Exhibit B-1 is intrinsically fair and equal. In Exhibit B-1, the properties allotted to Sadagopan have been described in the A Schedule and valued at Rs. 5,000 whereas the properties allotted to the second defendant have been described in the B Schedule and valued at Rs. 10,000. It is recited in Exhibit B-1 that a sum of Rs. 5.000 was paid in cash by the second defendant to the first defendant this has been done presumably for the purpose of equalisation and to lend Exhibit B-1, an air of fairness. The A Schedule shows that 10 acres of land have been allotted to Sadagopan. Having regard to Exhibit A-14, the Commissioner's report, which gives a classification of the suit lands, 5 acres out of these 10 acres are second class garden land, whereas ihe remaining 5 acres are punja lands. D.W.I thesecond defendant, has admitted in cross-examination that the garden lands would be worth Rs, 4,000 to Rs. 5,000 per acre, and the punja lands would be worth Rs. 1,500 per acre. On the basis of his own estimate, the value of 5 acres of second class garden land allotted to Sadagopan would come to Rs. 25,000 and the value of the 5 acres of punja lands allotted to him would come to Rs. 7,500 making in all a total of Rs. 32,500. On the other hand, the second defendant has been allotted 18.37 acres of garden land, which, according to his on computation, would be worth Rs. 91.850. He has also been allotted 72.44 acres of dry land, which would be worth Rs. 1,08,660. The total value of the lands allotted to the second defendant would then come to over rupees two lakhs. In other words, Sadagopan got 1/7th share of the total value of the assets instead of half a share whereas Nallathambi Goundar secured under Exhibit B-1 6/7th share of the total assets instead of a half share therein. The disparity between the two shares is shocking and clearly detrimental to the interests of Sadagopan and the members of his family, viz., the plaintiffs. Apart from this iniquity it would be found that Sadagopan has also surrendered his right to execute the decree for costs awarded by the Supreme Court in the appeals as weir as his right to claim mesne profits from the second defendant for the period from 1st April, 1950 up-todate of delivery of possession. The mesne profits for over a period of 8 years would come to several thousands of rupees. No doubt under the release deed, Sadagopan was permitted to withdraw the amount of Rs. 2,500 which he had deposited in Court and was also paid Rs. 5,000 by the second defendant. But the aggregate of these two amounts is but a fraction of the amount of costs and the huge amount of mesne profits which Sadagopan relinquished in favour of the second defendant.
12. The net effect of the arrangement under Exhibit B-1 is that the first defendant, who, even under the decrees of the Supreme Court had become entitled to no less than a half share in the entirety of the suit properties, and who could by working out the decrees secure unimpeachable title to and possession of about 50 acres out of the suit lands, surrendered 40 acres in favour of the second defendant without any consideration or benefit to himself or to his family and took only 10 acres in full quit of his share of 50 acres. The ingenious excuse trotted out in explanation of this unfair division is that a good part of the suit lands is rocky and fallow and that the best portion of the land's measuring 10 acres has been allotted generously to the first defendant and the rocky and follow lands have been taken over by the second defendant. The theory that any part of the suit lands is rocky or fallow has been effectively exploded-by the testimony of P.W. 5, the Advocate, who is a native of Pottipuram village, in which the suit lands are situated and who knows the suit lands personally. In fact, he owns lands at Pottipuram, some of which he has sold under Exhibits A-21 and A-22. It is necessary to bear in mind that P.W. 5 has gone along with the Commissioner and inspected the suit lands. His evidence is that there is no rocky land in the entire area and that a]] the suit lands are good lands. The reason given by the second defendant for this unequal and unfair partition must therefore be rejected as false. Thus, it will be seen that the compromise is invalid and would not be binding upon the plaintiffs because (a) defendants 1 and 2 colluded to defraud the sons of the first defendant or (b) the first defendant himself was not a free and voluntary agent and his illiteracy and helplessness had been fully exploited by the second defendant and the second, defendant was also guilty of fraud and misrepresentation or (c) the compromise, in any event, is not for the benefit of the family but is prejudicial to the interests of the plaintiffs inasmuch as, under the compromise, the family had been deprived of their 4/5th share in the properties, without being conferred any corresponding benefit.
13. Evidently, the second defendant knew that any delay in implementing this inherently unfair transaction would expose it to attack from the children of the first defendant and even from the well-wishers of the first defendant. That is why, on 1st December, 1958, he had a joint application prepared in each suit as per Exhibits A-6 and A-10, in which it was prayed that in view of the settlement dated 24th November, 1958, full satisfaction of the decree be entered. It was also alleged in the petitions that by virtue of the said compromise, a division of the properties in the suit had been effected as per the panchayat settlement and separate possession had been given to the plaintiffs. It is noteworthy that these joint applications have been signed only by Sadagopan and Nallathambi Goundar, and not by P.W. 5, who was the Advocate of Sadagopan in-these very proceedings. It is not explained why these petitions should have been presented behind the back of the first defendant's Advocate who was on record and who had been taking enormous, interest in the conduct of this long-protracted litigation. His evidence shows that it is only because of the great personal interest which he took that he was able to persuade the relatives of Sadagopan to render financial assistance in the conduct of the appeal before the High Court and the proceedings in the Supreme Court. But for the valuable help rendered by P.W, 5, it would not have been possible for Sadagopan to successfully carry on this litigation. The evidence of P.W. 5 at pages 73 and 75 shows that it is only on 24th November, 1968, he came to know that the litigation ended in favour of Sadagopan and the Supreme Court appeals were dismissed. The successful manoeuvre of the second defendant and his partisans in keeping P.W. 5 out of the picture in the matter of the settlement shows that the first defendant was not a free and voluntary agent and he was in the complete grip of the unscrupulous second defendant. That the dominating influence which the second defendant exercised over the first defendant still continues, is revealed in paragraph 9 of the written statement of the first defendant, in which the first defendant is tutored to make the extraordinary statement that it was only on account of the influence of P.W. 5 over the first defendant and the plaintiffs, that the matter could not be compromised. The following portion in the written statement betrays the fraudulent conduct of the second defendant, i.e., how he saw to it that there was no contact between the first defendant and (P.W. 5) his Counsel,
In fact the learned Judges of the Supreme Court adjourned the case on certain occasions advising the parties to compromise the matter and could not be compromised then, on account of the dominating'influence which these plaintiffs' Counsel had over this defendant and the Counsel for the plaintiffs wanted to wreak his vengeance against the second defendant herein, who is not on good terms with him and he did not allow this defendant to live a peaceful life.
Unfortunately for the defendants, the office of the Subordinate Judge, Salem, returned their petitions on 6th December, 1958. One of the objections raised in the return was that the Advocate on record had not signed the applications. These petitions were re-presented on 31st January, 1959 by the Advocate for the second defendant, who signed the endorsement of re-presentation, and said that the signature of the Advocate was not necessary because both the parties personally appeared and presented the petitions. In the circumstances, the second defendant's Advocate, Mr. K. Srinivasaraghavan urged the Court to excuse the delay in the re-presentation of the petitions and to pass orders forthwith. The learned Subordinate Judge, Salem, readily obliged Mr. Srinivasaraghavan by recording the compromise straightaway on 31st January, 1959 itself. We think that this order was unfair in view of what had happened in the meantime. On 12th December, 1958, P.W. 5, who was till then appearing for the first defendant, was approached by the wife and children of the first defendant, at whose request he filed an application (Exhibit A-15) in O.S. No. 2 of 1945 and another application (Exhibit A-17) in O.S. No. 26 of 1945, praying that the three sons of the first defendant be added as petitioners in the final decree applications. In support of these applications (Exhibits A-15 and A-17), affidavits (Exhibits A-16 and A-18 respectively) were filed by Kamala, the wife of Sadagopan and the mother of the plaintiffs herein. In those affidavits, it was alleged that owing to misunderstandings between the first defendant and his wife Kamala, the latter had been living with her children in her father's house at Dankanikottai for the past five years and during that period of five years, there was no connection whatsoever between the first defendant, on the one side, and his wife and children, on the other, and that the first defendant had been acting during, that period in hostility to the interests of his minor children. The affidavits further alleged that though by virtue of the Supreme Court judgment dated 21st November, 1958, the first defendant had become entitled to 52 acres of punja and nanja lands and to mesne profits and costs to the tune of Rs. 15,000, the first defendant had executed a deed accepting 10 acres and a sum of Rs. 5,000 in full quit of his share and had filed even memos along with the second defendant for recording full satisfaction of the decree. Paragraph 7 of the affidavits asserted that the release deed and the satisfaction memos represented a fraudulent transactions and were not binding upon the minor sons of the first defendant. In these circumstances, Kamala prayed that her minor sons be impleaded as parties to the final decree proceedings and thereby enabled to preserve their estate against the fraudulent proceedings of the first and the second defendants. P.W. 5 signed Exhibits A-15 and A-17 on 12th December, 1958 and gave notice of the-same to Mr. K. Srinivasaraghavan, who was on record as Advocate of the second-defendant in those proceedings. But Mr. Srinivasaraghavan, without cancelling his Vakalat, made an endorsement on each of the petitions, Exhibits A-15 and A-17 to the following effect:
I have not got the address of the client. He has not been coming to me. So, I request that notice may be taken to the party for whom I had, put in appearance previously.
This dodging endorsement illustrates the paltry kind of court-craft resorted to by the second defendant's Advocate evidently at the instance of the second defendant, who must have been anxious to get the unfair compromise recorded without having to face the inconvenient applications filed by P.W. 5 on behalf of the minor sons of the first defendant. Exhibits A-15 and A-17 show that though they were presented by P.W. 5 into Court on 13th December, 1958, they were being returned by the Office for some reason or other, and they were being re-presented by P.W. 5 with dogged pertinacity. It appears from the seals on Exhibits A-15 and A-17 that they were re-presented first on 2nd January, 1959, then on the 16th January, 1959 and again on the 31st January, 1959, that is to say, on the very day Mr. K. Srinivasaraghavan, the Advocate for the second defendant, re-presented Exhibits A-6 and A-10 requesting that the compromise might be recorded even though the signatures of the first defendant's Advocate had not been affixed to the compromise. As to what happened on the 31st January 1959, we have the evidence of P.W. 5. According to him, he was present in Court when Mr. Srinivasaraghavan represented Exhibits A-6 and A-10. At that time, P.W. 5 re-presorted his petitions Exhibits A-15 and A-17 in open Court, whereupon Mr. Srinivasaraghavan opposed these applications stating that he had no locus standi to oppose the compromise. The 1 earned Subordinate Judge took a course, which in our view is most improper. He first passed orders on 31st January, 1959, recording the compromise in pursuance of Exhibits A-6 and A-10, and he refrained from passing any order on Exhibit A-15 or Exhibit A-17 that day. He took up Exhibit A-15 on 6th February, 1959 and passed an order to the following effect:
The main petition has been disposed of. The petition is therefore rejected.
Above this order, we find the office note to the following effect:
This is an application by the minor sons of the plaintiff represented by their next friend mother to bring them on record and implead them as parties to the final decree petition. I.A. Mo. 19 of 1953 in O.S. No. 2 of 1945. (I.A. No. 19 of 1953 is a mistake for 73 of 1963.)
Final decree recording full satisfaction was passed in I.A. No. 73 of 1953 as per memo, filed by both parties on record. No proceedings pending.
This note of the office, saved the Court from the trouble of going into the merits and solving the inconvenient problem presented by the first defendant's sons. But the ingenious procedure adopted by the Court is most irregular and unjust.
14. The Sub-Court failed to appreciate another crucial aspect. This suit by the plaintiffs impugning Exhibit B-1 and claiming partition and separate possession of their share had been filed even on J 5th December, 1958, i.e., about one and a half months before the compromise was recorded. The effect of the institution of the suit for partition, when ultimately decreed, would bring about a division in status from 15th December, 1958 and that, is all the more reason why the Court should have impleaded the plaintiffs in the two suits. O.S. Nos. 2 and 26 of 1945. Theseeond defendant, who must have learnt of the institution, of the suit for partition, must have realised the vital changes that had taken place in the family between 1st December, 1958, the date on which the memo, for recording the compromise was filed and 31st January, 1959 the date on which the Court recorded full satisfaction of the decree. The lower Court overlooked the fact that it was clearly open to the plaintiffs to resist the passing of the compromise decree instead of being obliged to file a separate suit to set aside the same, thereby giving rise to unnecessary multiplicity of proceedings and avoidable expense. It was the clear duty of the Court to have impleaded the plaintiffs as parties, exercising its jurisdiction under Order 1, Rule 10 and its inherent powers under Section 151, Civil Procedure Code. Under Order 23, Rule 3, Civil Procedure Code, the Court must be satisfied that the compromise is a lawful compromise. Howl could this compromise be said to be a lawful compromise when it rested upon a fraudulent device to shut out and keep away persons who were vitally affected by the compromise from placing their points of view before the Court? It is not the mere filing of the application to record the compromise, but it is the stroke of the judicial pen, entering full satisfaction of the decree, that would terminate the suits, and before that stage was reached, the plaintiffs had a right to be impleaded. Vide : Nanjammal and Ots. v. Easwaramurthi Gowidar (1954) 1 M.L.J. 530 : I.L.R. (1995) Mad. 519. Had the Court impleaded the minor sons of the first defendant and heard their objections to the compromise, it would have easily seen that the compromise was totally lacking in bona fides and was patently injurious to the interests of the minor sons of the first defendant and would therefore have refused to record the compromise on the ground that it was not a lawful compromise, within the meaning of Order 23, Rule 3, Civil Procedure Code. The subterfuge and the dilatory tactics adopted by the second defendant in refusing to face the petitions filed on behalf of the minors and the suspicious hurry with which he proceeded to secure an order of the Court recording the compromise would only serve to underline his consciousness of the infirmities which attached to Exhibit B-1 and which have, been thoroughly exposed in these proceedings.
15. It is, however, contended on behalf of the second defendant that the mere right to sue for specific performance of an agreement of sale is not property, much less joint family property, in which the plaintiffs could have acquired any right by birth. An illuminating discussion of what is property is to be found in a judgment of the Division Bench of the Allahabad High Court reported in Messrs. Bans Gopal Sheo Narain v. P.K. Banerji Official Receiver I.L.R. (1949) All. 746. There, it was held that the claim for damages for breach of contract, which was the subject-matter of (he suit in that case, was property. It was also pointed out in that case that all properties need not be transferable or attachable and saleable and even heritable and that we should keep the idea of property distinct from the idea of transferability or attachability or heritability. In this case, Venkaiesa Iyengar, the paternal grandfather of the plaintiffs had entered into a contract of sale in respect of the suit properties. Under that contract, he acquired a right, not merely to sue for damages for breach of contract, but a right to enforce specific performance of the contract of sale of immovable properly. This right he enforced by instituting two suits, and upon his death pendente lite, his son Sadagopan got himself impleaded as his legal representative and continued the suits, in which he was ultimately granted decrees for an undivided half share in 100 acres of land on payment of about Rs. 2,500 to the opposite parties. This amount of Rs, 2,500 was paid, not by Sadagopan, but by Srinivasaraghavan the brother-in-law of Venkatesa Iyengar, who was, more interested in the plaintiffs than in the first defendant and who paid the same for the benefit of the plaintiffs. The right to get an undivided half hare in the suit properties, which descended from Venkatesa Iyengar to Sadagopan was certainly property, which, in the hands of Sadagopan vis-a-vis Sadagopan's sons, was ancestral property. In Ananda Behera and Anr. v. The State of Orissa and Anr. (195) 2 S.C.R. 919 : 1956 S.C.J. 96 : (1956) 1 M.L.J. (S.C.) 69, even profit a prendre has been held to be immovable property. The right in question is certainly property, no matter whether it is movable or immovable. When once such property has descended from father to son, it becomes impressed with the character of ancestral property in which the son's sons are entitled under the Hindu Law to claim a share by birth. We, therefore, repel the contention of the learned Counsel for the appellant and hold that the properties dealt with under Exhibit B-l were not the separate properties of the first defendant, but properties belonging to the joint family of the first defendant and the plaintiffs herein.
16. It is next contended that Exhibit B-1 represents a settlement of disputed rights and ought not therefore to be regarded and attacked merely as an alienation or as a surrender effected by the fat her-manager of a joint family. It is true if Exhibit B-1 had, been entered into during the pendency of the appeals in the Supreme Court we would be guided by different considerations while judging the propriety of Exhibit B-1. Having regard to the uncertainties involved in litigation and having regard also to the fact that the Supreme Court had advised the parties to enter into a settlement, the first defendant might have, with greater justification, entered into a transaction of this type during the pendancy of the litigation, surrendering valuable rights which he had acquired under the decrees of the High Court, and in a spirit of give and take. But Exhibit B-1 was entered into, not during the pendency of the litigation before the Supreme Court, but after the termination of the litigation and after the highest Court in the land had set its seal of approval and finality to the decrees granted by this Court in favour of the first defendant entitling him to an undivided half share in the entirety of the suit properties. There was, therefore, no element of uncertainty or un-predictability about D-1's rights when he entered into an arrangement under Exhibit B-1 with the second defendant. His rights had become irrevocably crystallised under the Supreme Court's decrees and the only thing that remained was to work out his rights by pursuing the final decree proceedings, which he had already initiated in the trial Court. The cost of the final decree proceedings would be as nothing in comparison with the costs already incurred in the suits. There was, therefore, no settlement of any bona fide dispute involved at the time Exhibit B-1 was executed; nor was there any justification for the first defendant to surrender to, and sacrifice in favour of, the second defendant 40 out of 50 acres of lands he and his family 'had become entitled to under the Supreme Court's decrees. The surrender was a gratuitous surrender and brought no benefit to the joint family of the first defendant. It was both imprudent and mala fide, brought about either by the second defendant imposing his will upon the first defendant to the detriment of the latter and his sons, or as a result of the fraudulent collusion between the first and the second defendants to the detriment of the plaintiffs, whose interests were totally overlooked or disregarded.
17. On the merits, we are clearly of the view that the compromise arrangement, Exhibit B-l, followed by the joint memo, Exhibit A-10, dated 1st December, 1958, which was filed into-Court, and on the basis of which the Court passed an order recording full satisfaction of the decree in the partition-suit, O.S. No. 2 of 1945, were vitiated by fraud and collusion and that the arrangement, Exhibit B-1. was mala fide imprudent and highly detrimental to the interests of the plaintiffs and that it was a virtual surrender and relinquishment of valuable rights of the plaintiffs in the properties. It is, therefore, unnecessary to refer at length to the arguments advanced by Counsel on both sides and the decisions cited by them as to the circumstances under which the junior members would be entitled to question the validity and the binding nature of a decree passed by consent on an arrangement entered into by the father as representative of the family. The law on this aspect is well settled even so, we shall make a brief reference to the same.
18. Learned Counsel for the appellant urged that in entering into the compromise, the father, Sadagopan, at the most, can only be said to be guilty of the negligence in not prosecuting the final decree proceedings to the end and that even if the compromise and the order recording full satisfaction were vitiated by the gross negligence of the father, it would still be binding upon the sons of Sadagopan, Particular reliance was-placed upon two Bench decisions of this-Court reported in Krishnamurthi v. Chidambaram Chettiar : AIR1946Mad243 . The Privy Council settled the law in Lingangowda v. Basangowda I.L.R. (1927) 51 Bom. 450, to the effect that if a decree is obtained against the managing member of the joint family, it would be binding upon all the junior members under Section 11,, Explanation VI, Civil Procedure Code. In Krishnamurthi v. Chidambaram Chettiar : AIR1946Mad243 , a Bench of this Court held that the decree obtained against the Hindu father who was sued as managing member of the joint family was binding on the junior members and cannot be set aside on the ground that the father was grossly negligent in the conduct of the suit. The principle of this decision and the principle of the decision of the Privy Council in Lingangowda v. Basangoicda I.L.R. (1927) 51 Bom. 450, were applied in the decision in Nagamma Shedthi v. Korathu Shedthi, to a case of a decree obtained against the karnavan of a family tarwad or the kartha of an aliyasanthana family. In this Bench decision it was held that the karnavan must be deemed to have litigated in good faith or bona fide within the meaning of Section 11, Explanation VI, Civil Procedure Code, on behalf of all the junior members of the tarwad as well and representing (hem. This Bench decision, far from advancing the contention of the appellant is really against him. A prusal of the discussion in the said decision shows that, if the proceedings are vitiated by fraud and collusion and bereft of bona fides and good faith, and not by mere negligence, however gross, the position would be different. The capacity of the head of the family to effectively and validly represent the junior members of the family under the personal law read along with Explanation VI to Section 11, Civil Procedure Code, could avail the other party to the litigation, only if there is no fraud or collusion and the managing member has acted with bona fides and in good faith. The Bench pointed out that, while negligence, even if it be gross negligence, would not be a ground for setting aside a decree, the character of the gross negligence in such cases may itself be evidence of fraud and collusion, and the junior members can seek to set aside the decree, if they make out fraud and collusion.
19. In the instant case, the decree is not a decision on the merits, but it is based upon a compromise between the parties and so, there is no question of res judicata. On the question that the compromise decree does not operate as res judicata within the meaning of Section 11, Civil Procedure Code, it is sufficient to refer to two recent decisions of the Supreme Court. In Subba Rao v. Jagannadha Rao : 2SCR310 , while dealing with the incidents of a compromise decree it was observed as follows:
A compromise decree is not a decision by the Court. It is the acceptance by the Court of something to which the parties had agreed. A compromise decree merely sets the seal of the Court on the agreement of the parties. The Court does not decide anything. Nor can it be said that a decision of the Court was implicit in it. Only a decision by the Court can be res judicata whether statutory under Section 11 of the Code of Civil Procedure, or constructive as a mat ter of public policy on which the entire doctrine rests. Such a decree cannot strictly be regarded as decision on a matter which was heard and finally decided and cannot operate as res judicata. Such a decree might create an estoppel by conduct between the parties, but such an estoppel must be specifically pleaded.
The same principle was reiterated in Baldevdas v. Filmistan Distributors : 1SCR435 , and it was held that a consent decree does not operate as res judicata because the consent decree is merely the record of a contract between the parties, to a suit, to which is superadded the seal of the Court and that the matter in contest may operate as res judicata only if there is an adjudication by the Court on the merits, and that the terms of Section 11 of the Civil Procedure Code leave no scope for a contrary view. The validity and the binding nature of Exhibit B-l will have, therefore, to be adjudged on the basis that it is a compromise entered into between the managing member of the joint family and a third party. It is beyond dispute that, whether it is a dispute Outside the Court or a dispute in a pending litigation, the managing member has undoubted authority and power to settle the dispute, by a compromise. As the managing member stands, in a fiduciary relationship with the other members of the joint family and as he is acting on his own behalf and on behalf of the other members of the family, his authority to enter into a compromise is not unqualified and unlimited. It is the peculiar position which he occupies as head of the family, which clothes him with the power 10 enter into a compromise and it is the very same peculiar position which imposes certain limitations upon the exercise of that power, He has not the same freedom in entering into a compromise as in a case in which he represents none but himself and deals with his own separate properties. When he acts as the managing member of a joint family, he must enter into the compromise with bona fides and it must be for the benefit and advantage of the family as a whole. Both the conditions must be concurrently satisfied, i.e., the managing member must act with bona fides and, at the same time, the compromise must secure some demonstrable benefit and advantage to the family; under the compromise, the managing member cannot give up or relinquish substantial rights of the members of the family. The compromise must be prudent, and the merits of the rival claims of both the parties, the family on the one side, and the third party, on the other, should be such as to warrant a settlement to avoid the risk of the family or the third party being prejudicially affected in the event of the litigation running its full course. The managing member cannot enter into a spurious compromise or for his own personal advantage, simply because the personal law confers upon him the authority to enter into a compromise. We may, in this connection, refer to the statement of the law in Mulla's Hindu Law (Thirteenth Edition) at page 283, paragraph 248 and Mayne's Hindu Law and Usage (Eleventh Edition) at page 391, paragraph 310. A survey of some of the relevant decisions shows that the tests which are applied in judging the validity of an alienation by the managing member of a joint family have been applied while judging the validity and the binding nature of a compromise. In Pritam Singh v. Ujagar Singh I.L.R. (1875) All. 651 (even though, on the facts of that case, the Court held that the compromise would be binding upon the junior member), it was pointed out that the compromise would not be binding upon the junior member if it was vitiated by fraud and collusion or if it was proved that it was not prudent for the manager to have put an end to the litigation by a compromise if the merits of the claim did not warrant such a course to be adopted by the manager, i.e., in the sense that it was not for the benefit of the family. In Dwaraka Das v. Krishnan Kuhon I.L.R. (1921) Lah. 114, the authority of the managing member of the joint family to enter into a compromise came in question, where a reference of the dispute to-arbitration resulted in an award. A perusal of the discussion shows that the reference to arbitration must be entered into in good faith and the compromise should not be vitiated by fraud or collusion or by any other good reasons to the contrary, in the sense that there must be sufficient ground for the managing member to resolve upon a settlement having legard to the nature of the claim and the litigation. The Bench points out that the-compromise would be binding in the-absence of fraud, collusion or undue influence or other like reason. In Dangal Ram v. Jaimangal Saran I.L.R. (1926) Pat. 480 was pointed out that the compromise resulting in a partition arrangement cannot be sustained if the course adopted by the managing; member was so detrimental to the interests of the other members Of the family that it would be inequitable to allow that partition to stand. We may refer to the following observations at page 487:
The rule there is very clearly stated,, that in the absence of proof of mistake,, inequality of position, undue influence,, coercion or like ground, a partition or family arrangement made in settlement of the disputed or doubtful claim is a valid and binding arrangement which the parties thereto cannot deny, ignore or resile from; and this principle is applicable where some of the members, of the family are minors, or where the settlement has been effected by a qualified owner whose acts in this respect will bind the reversioner.
From the portion extracted above, it will be seen that the test of benefit and legal necessity will have to be satisfied in the case of a compromise between the managing member, on the one side, and the third-party, on the other, though a more liberal test would be applied if it is a family settlement between the members of a family. In Dasaratharama Reddi v. Narasa Reddi I.L.R. (1928) Mad. 494, a release by the managing member, of a joint family, of a substantial portion of a mortgage debt due to the family merely out of charity or sympathy with the mortgagor was held to be not binding on the other members of the family as the transact ion was not prudent and constituted virtually a waiver and relinquishment of valuable property rights of the family. It is settled law that like the managing member of the joint family, a Hindu widow could enter into a bona fide compromise with a third party and that it would be binding upon the reversioner. Though the widow is not a trustee for the reversioners and she has succeeded to the estate as an heir, and is in enjoyment of the properties as an owner thereof, the same limitations are imposed upon her power to compromise. The Privy Council has pointed out that in judging the validity and the binding nature of a compromise entered into by the widow, the same tests as would apply to the case of an alienation would be applied. (Vide the statement of the law in Mulla's Hindu Law (Thirteenth Edition) at page 222, paragraph 193; vide : also observations of Lord Phillimore in Ramsumran Prasad v. Shyam Kumari I.L.R. (1922) Pat. 741. At this stage, we may refer to the Bench decision of P. V. Rajamannar, Officiating C.J. (as he then was) and Satyanarayana Rao, J., in Kaliammal v. Sundarcmnul : (1948)1MLJ366 . The Bench did not accept the argument that it was sufficient to show that the compromise entered into by a widow was not a dishonest one and that it was not brought about solely for the personal advantage of the limited owner and that when the validity of the compromise is questioned, it must be established that it was reasonable and prudent and for the interest of the estate. It was also observed that a compromise which amounted to an entire abandonment by the limited owner of valuable rights of the reversion would not be binding on the reversioner. Rajamannar, C.J., in the course of the discussion, after examining the relevant decisions observed that in every case, the Court had examined the terms of the compromise to ascertain whether, in the circumstances of the particular case, the terms could be held to be reasonable and prudent and for the benefit of the estate and the Bench did not come across any case in which a compromise was upheld without holding that the terms thereof were reasonable and for the benefit of the estate. It may be mentioned that our attention was; not drawn to any case in which any compromise entered into by the managing member of a family was upheld without a discussion and consideration as to-how far it is bona fide, prudent, and beneficial to the family. In fact in every one of the cases cited the compromise was either upheld or set aside only after considering the merits of the compromise,, from the point of view of prudence, necessity, benefit etc., and presence or absence-of fraud and collusion. It was also pointed out in the case in Kaliammal v. Sundarammal : (1948)1MLJ366 (above referred to), that a compromise in consideration of a right to maintenance is not a big concession securing a benefit 10 the estate, because there was an undoubted right to maintenance and that right could never be denied, and that a mere desire by the; widow to live in peace with a provision for maintenance would not be sufficient to sustain the compromise. In the instant case, we have already observed that the right of the plaintiffs' family to a half share in the properties and for mesne profits for over a decade is undoubted and has been upheld by the highest Court of the land and that all that remained was merely to effect a partition by metes and bounds and the ascertainment of mesne profits. The suit by the plaintiffs' grandfather for specific performance and for recovery of possession of the properties had been filed as early as 1945, and. even if any person or persons had acquired any rights over the suit properties either as tenants or otherwise, it Would only be as transferees pendente lite and they would not avail against Sadagopan and the plaintiffs (vide Section 52 of the Transfer of Property Act and Older 21, Rule 102 Civil Procedure Code). Further, as al! ready observed, the recital in the compromise about difficulties in securing possession from tenants in possession of the land is untrue and artificial, deliberately introduced into the compromise for justifying a wholly unjustifiable transaction involving the relinquishment and surrender of valuable properties. Our attention was also drawn to a Bench decision reported in Krishnamachanar v. Chinnammal : (1913)24MLJ192 , which dealt with the case of a compromise in a litigation which was brought in a representative character under Order 1, Rule 8, Civil Procedure Code. The Bench observed that if a decree had been passed by one Court in their favour, a compromise by which any portion of the benefit obtained by the decree is given up, would require explanation and it would be more easy to impeach such a compromise as a dishonest, unreasonable and fraudulent compromise. In Basant Lal v. Rameshwar Prasad : AIR1957All287 , the Allahabad High Court held that a consent decree is no better than the original contract on the basis of which the decree is obtained and that, the view that once a consent decree has been passed it should be dealt with as a decree passed after contest or on merits so far as the junior members are concerned, would lead to absurd and anomalous results, that it would be open to an unscrupulous father or a father, who has no interest in the welfare of the family in his mind, to enter into a compromise and, under that compromise, surrender valuable rights, i.e., that would enable the father to indirectly achieve something which he cannot directly achieve. In other words, if, in the absence of a pending litigation, the father would have no authority to make such a relinquishment, the father cannot exercise such authority by entering into a transaction which masquerades as a compromise pendente lite. Even though the position of a widow under Hindu Law cannot be assimilated to that of a managing member of the joint family in all its aspects, we do not see why the principle underlying the decision in Kaliammal v. Sundarammal : (1948)1MLJ366 should not be applied while judging the validity of a compromise entered into by the managing member of a joint family. In both the cases, the authority to enter into a compromise is not unlimited and absolute and, while entering into a compromise, the widow or the managing member cannot, for the personal advantage of either, act to the detriment of the estate as a whole. We have already adverted to the clever maneuver resorted to by the defendants in thwarting the attempt of the plaintiffs to expose their fraud. When the plaintiffs attempted to serve the copies of the proceedings (to implead themselves as parties) upon the Counsel for the first defendant with a view to get themselves impleaded in the partition action to protect their interests and also resist the attempts of Sadagopan and the second defendant to enter full satisfaction of the decree, the Counsel for the first defendant evaded service, saying that he had not got the address of his client and that the notice might be taken to the party direct. So long as he was on record and his vakalath had not been withdrawn, Counsel could not and ought not to have taken this attitude. Under the circumstances, service on Counsel clearly amounted to service on the 2nd defendant of notice of the proceedings initialed by the plaintiffs. Be it noted that the same Advocate, throughout, continued to represent and appear on behalf of his client in the matter of complying with the objections pointed out by the Sub-Court with regard to the memorandum of compromise filed in Court and, on 13th January, 1959, he actually appeared in Court and represented that the signature of the Advocate to the compromise was not necessary as both the parties personally appeared and presented the compromise petition and that even the deed of compromise was not necessary and, as both the parties were adults and had agreed to the compromise, full satisfaction of the decree might be recorded. The plaintiffs, who are junior members of the family, had no other remedy except to intervene in the partition action to get themselves impleaded and protect their interests. We may, in this connection, refer to the statement of the law in Mayne's Hindu Law (Eleventh Edition) at page 373, where, in the foot-note, the learned author has observed that if the other members be not satisfied with the prosecution of the suit or the defence, they could apply to be made parties and ordinarily, the Court would make them parties. Than the attitude adopted by the first defendant and his Counsel, we cannot have better evidence of fraud and collusion. It is true that on 1st December, 1958, Sadagopan and the first defendant had filed the joint memo to accept the compromise and record full satisfaction of the decree and the application of the plaintiffs to be impleaded as parties was filed only on 12th December, 1958. But, that does not mean that the Court was bound to uphold the compromise and record full satisfaction of the decree. So long as the application to record the compromise was pending, the Court was bound to take note of any application made by junior members of the family to be impleaded as parties, especially when the complaint was that the compromise lacked bona fides and would cause loss to the plaintiffs. We may, in this context, refer to the decision of this Court reported in Kunju Kombi Achan v. Ammu 61 M.L.J. 549 : A.I.R. 1932 Mad. 31, in which an appeal was pending on a decision in a suit filed against the karnavan of a family. The karnavan had made an application to withdraw his appeal and, some time later, the; junior members, of the tarwad applied to be impleaded in the appeal as supplemental appellants on the ground that the karnavan had applied to withdraw the appeal with the intention of causing loss to the tarwad. The Court held that the matter must be regarded as pending and the junior members were entitled to come on record and resist the application of the karnavan to withdraw the appeal as their interests would be jeopardised if the appeal were to be withdrawn. The Court did not accept the contention that the application for withdrawal of the appeal, being earlier, would prevail over the subsequent application filed by the junior members to be impleaded as parties. In the instant case, it cannot be said that the mere filing of the application to recognise the compromise and record full satisfaction of the decree would bring about the termination of the litigation. It is only after the Court exercises its jurisdiction under Order 23, Rule 3, Civil Procedure Code, and passes a decree, that the litigation would come to an end. But, in the meanwhile, the plaintiffs had filed the application, to be impleaded as 'additional plaintiffs in O.S. Nos. 2 and 26 of 1945 with a view to assert and safeguard their interests. We see no substance in the contention that the order recording satisfaction of the decree could have retrospective operation from 1st, December, 1958, the date on which the joint memo, to record the compromise was filed and that the plaintiffs' application to be impleaded as parties which was filed subsequently would not affect the right of the defendants to have full satisfaction of the decree entered up. This argument overlooks the important fact that the order of dates in which the applications were filed is not of much significance, but the crucial point is that the plaintiffs filed the, application while the suit was yet pending and had not come to, an end. The principle underlying the decision of the Bench in Nanjammal v. Easwaramurthi (1954) 1 M.L.J. 530 : I.L.R. (1955) Mad. 519, clearly governs the instant case. In all cases of litigation which are governed by Explanation VI to Section 11, Civil Procedure Code (it is settled law that Explanation VI to Section 11 applies to a proceeding by or against the managing member of a joint family) common sense and natural justice require that person whose interests would be affected by the result of the litigation, would be entitled to come on record to protect their interests in the further prosecution of the litigation, especially when their complaint is that the party already on record in a representative character is either not taking necessary and proper steps in the further prosecution of the proceedings or threatens to do something which would jeopardise their interests. Order 1, Rule 8, Civil Procedure Code, specially enables a party so represented, if he so desires, to come on record. It would be a travesty of justice to hold that a party who is bound by the result of a litigation, though not eo nomine a party to the litigation, shall be denied an opportunity to draw the attention of the Court to some step, which seeks to prejudice his interests behind his back. In all such cases, it is the plain duty of the Court to implead the parties concerned either under Order 1, Rule 10, or in exercise of its undoubted, inherent power under Section 151, Civil Procedure Code.
20. For all these reasons, we hold that gross miscarriage of justice resulted from the recording of full satisfaction of the decrees in O.S. Nos. 2 and 26 of 1945. We therefore agree with the learned Subordinate Judge and hold that the arrangement, Exhibit B-1, and the order recording full satisfaction of the decree are not binding upon the plaintiffs as they were vitiated by fraud and collusion, besides being detrimental to the interests of the plaintiffs. In the course of the argument, the payment of the sum of Rs. 5,000 and the receipt by the first defendant for the same as recited in Exhibit B-1 was relied upon as proof of bona fides of the compromise. Learned Counsel for the respondents relied upon the decisions of this Court reported in Sreeramulu V. Thandavakrishnayya : AIR1943Mad77 and Muthachi v. Kandaswami Muthirian : AIR1945Mad135 and contended that such a recital is not binding upon the sons and that there must be independent and satisfactory proof of the payment of Rs. 5,000. Learned Counsel urged that the circumstances of the case indicated that the ignorance and illiteracy and the weakness of the first defendant were fully exploited by the 2nd defendant and no such payment could have been made. Reliance was also placed on the Bench decision of this Court reported in Loorthia Odayar v. Gopalasami Aiyar (1924) 19 L.W. W 135 : 46 M.L.J. 125 to the effect that the recital of the payment before the Sub-Registrar, by itself, is not decisive of the matter. It is unnecessary for us to express any opinion upon this question, as, even otherwise, we have held that the compromise is not binding. Further, so far as the plaintiffs are concerned, the payment of Rs. 5,000, even if true, would not be binding upon them. To what equities, if any, is the 2nd defendant entitled as against the first defendant is a matter for decision by the trial Court in the final decree proceedings. But so far as the plaintiffs are concerned, they are entitled to work out their rights, wholly unaffected by the alleged payment of Rs. 5,000. The result is, the decree passed by the trial Court is upheld and the appeal is dismissed. The appellant will pay the costs of the plaintiffs (respondents 1 to 3) both here and in the trial Court. The first defendant will bear his own costs throughout. The appellant will pay to the Government the Court-fees payable on the plaint. As this litigation is over twenty-five years old, the trial Court should make every effort to dispose of the final decree proceedings as expeditiously as possible. The trial Judge will see that these proceedings are not further protracted. The records from this Court will be despatched to the trial Court within a fortnight's time.