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1989 DIGILAW 281 (MAD)

Thangammal v. Nariamma

1989-04-20

NAINAR SUNDARAM

body1989
JUDGMENT Nainar Sundaram, J. 1. The controversy in these second appeals stems out of rival claims put forth by the parties for title to an extent of acres 7.30 in S. No. 1575 in Kunnathur village, Vilavancode Taluk. Originally the suit property belonged to one Kesava Pillai Kumara Pillai. There was a sale by Kesava Pillai Kumara Pillai in favour of Cherian Nadan Mathavan Nadan on 20.4.1101 (M.E.) Kesava Pillai Kumara Pillai filed O.S. No. 43 of 1102 (M.E.) on the file of the District Court of Nagercoil praying for cancellation of the sale in respect of the suit property, for declaration of his title thereto and for other reliefs. His case was there was no agreement or intention to convey the suit property to the vendee Cherian Nadan Mathavan Nadan and the suit property was included in the sale deed on account of fraud perpetrated on him. That suit got disposed of on 19.2.1105 (M.E.) corresponding to 5th October, 1929 and Kesava Pillai Kumara Pillai was accorded a decree for declaration that the suit property was not conveyed by him under the sale deed concerned and he was entitled to it. The copy of the judgment has been marked as Ex.A.4. The vendee Cherian Nadan Mathavan Nadan preferred an appeal A.S. No. 303 of 1105 (M.E.) to the High Court of Travancore, and while the appeal was pending, a compromise was entered into between the parties and this compromise is reflected in the copy of the decree, dated 16.4.1112 (M.E.) corresponding to 1.12.1936, marked as Ex.A.6. The salient terms of the compromise are set out in paragraphs 1 to 7 of ExA.6 and they stand extracted as follows: Para-1: Appellant Dhason as per sale deed No. 1 of this case has satisfied the respondent-1 in the appeal case regarding the fannams 4501 with half per cent interest of Fannams 2250 1/2. Total fannams 6751 1/2. Further fannams 1000 has been received to redeem the mortgage. Total Fannams 7751 1/2. Appellant has agreed to pay Fannams 1750 towards cost of loss of trees to the plaintiff in the original case. Deducting the abovesaid fannams (amount), the total fannams 60001 1/2 has to pay to the appellant by the original plaintiff. Para-2: The abovesaid Fannams 6001 1/2 has to deposit before the court by the original plaintiff within 6 months and the appellant has agreed to receive the amount. Deducting the abovesaid fannams (amount), the total fannams 60001 1/2 has to pay to the appellant by the original plaintiff. Para-2: The abovesaid Fannams 6001 1/2 has to deposit before the court by the original plaintiff within 6 months and the appellant has agreed to receive the amount. Para-3: Appellant within one week on receipt of notice about the deposit of the amount should execute, register and produce the release deed in respect of his entire rights in items 1 and 6 documents before the court and to receive the amount. Appellant had produced document 1 and 6 before the District Court. And the Respondent has agreed that the plaintiff should take possession of the property in item No. 6 immediately he deposited the amount. And also agreed to receive back document No. l and 6 from court by the plaintiff in the original case. Para-4: If the plaintiff in original case has failed to deposit the amount before the court within the prescribed date, the release deed as described in para 3 may be written and produce it before the court and issue notice to the original plaintiff and if he failed to deposit the amount with the court within the date specified in the notice 1st respondent in the original case may take steps for fannams 6001 1/2 with 1/2 per cent interest towards his Jenmam rights and his entire rights of the property in item 1 survey 2470. Further he has also agreed to recover the amount by selling the property. Para-5: The parties has agreed to meet the amount mentioned in the para-1 alone, and not to meet any other expenditure regarding the suit. Para-6: Second respondent in the appeal case has only the mortgage right given by the plaintiff in the original case, which is not the subject-matter of this suit, and he is an ex parte in this case and both the parties has agreed to present petition to eliminate him as a party in this case. Para-7: For thesereasons order may be passed as per the compromise. Further, it is requested that one half (1/2) of the court-fee remitted by the appellant may be ordered to refund it to the advocate of the plaintiff. None of the terms agreed to was implemented or executed as per its tenor by the parties. This is the admitted position. Para-7: For thesereasons order may be passed as per the compromise. Further, it is requested that one half (1/2) of the court-fee remitted by the appellant may be ordered to refund it to the advocate of the plaintiff. None of the terms agreed to was implemented or executed as per its tenor by the parties. This is the admitted position. On 31.11.1114 (M.E.) the parties presented a petition, numbered as C.M.P. No. 3624 of 1114 (M.E.) in O.S. No. 43 of 1102 (M.E.) on the file of the District Court of Nagercoil, a copy of which has been marked as Ex.A.7; the relevant portion of which runs as follows: In substance Kesava Pillai Kumara Pillai admitted his inability to make the deposit as per the compromise expressed in Ex.A.-6 and surrendered his rights over the suit property to Cherian Nadan Mathavan Nadan. The appellants primarily claim right over the suit property under Kesava Pillai Kumara Pillai. The respondents claim their rights under Cherian Nadan Mathavan Nadan. If Ex.A.-7 has got to be accepted as an adjustment of the rights of the parties settled under the compromise as per Ex.A-6, then the appellants on this ground alone must fail. If the view to be taken is otherwise, then there will be a necessity for probing into the other aspects. It must be noted that both the courts discountenanced the claim of the appellants. The lower appellate Court, in my view, rightly concentrated on the implications flowing from Ex.A-7. The lower appellate Court construed Ex.A-7 as reflecting an adjustment of rights and obligations of the parties under the compromise Ex.A-6. A contention was raised that there is no formal recording of the adjustment as per Ex.A-7 by the Court and in the absence of such recording, the adjustment cannot be looked into. The parties can always enter into any contract or compromise with reference to rights and obligations conferred on them under a decree and that contract or compromise could certainly amount to an adjustment. This is exactly what seemed to have happened in the present cases. The parties can always enter into any contract or compromise with reference to rights and obligations conferred on them under a decree and that contract or compromise could certainly amount to an adjustment. This is exactly what seemed to have happened in the present cases. When the adjustment has been brought to the notice of the court by way of petition by both the sides, the mere failure on the part of the court to record it formally, assuming that to be the factual position, would not obliterate or set at naught the contract or compromise amounting to an adjustment of the decree passed in the suit. Such a view has been expressed by a Division Bench of this Court in Subramaniam Chettiar v. Mumgappan Chettiar (1972) 2 M.L.J. 168 . This pronouncement has been rightly taken note of by the lower appellate Court when it held against the appellants. The parties are bound by the terms of the contract or compromise amounting to adjustment of their rights and obligations under the compromise as per Ex.A-6. 2. There is yet another angle from which the tenability of the claim of the appellants could be tested. Their claim rests on a theory of benami also. The suit property was brought to court auction sale by a creditor of Kesava Pillai Kumara Pillai and it was purchased by one Chinniyan Asari. The appellants claim that Chinniyan Asari was only a benamidar for Kumaravelu Nadar, who was the predecessor-in-title of the present appellants, and who was prosecuting the litigation before the first Court. This plea of benami could no longer be prosecuted in view of the provisions of Benami Transactions (Prohibition) Act 45 of 1988, hereinafter referred to as the Act. The position would not stand altered merely because the matter is at the second appellate stage, the courts below having rendered their decisions on the question one way or the other. The legal position under the Act has been taken note of by me in a recent pronouncement in Minor Habir Rahman and three Ors. v. Ramu Pandaram S.A. No. 551 of 1981, judgment dated 17.3.1980. This also disables the appellants from claiming any title as they did from this angle. The result is the second appeals directed against the decisions of the two courts below deserve dismissal and they are accordingly dismissed. I make no order as to costs. v. Ramu Pandaram S.A. No. 551 of 1981, judgment dated 17.3.1980. This also disables the appellants from claiming any title as they did from this angle. The result is the second appeals directed against the decisions of the two courts below deserve dismissal and they are accordingly dismissed. I make no order as to costs. The memorandum of Cross-Objection in S.A. No. 1236 of 1980 is also dismissed in view of the dismissal of the second appeals. There will be no order as to costs.