Judgment 1. This is a petition for transfer of E.P.No.71 of 1996 and E.P.No.72 of 1996 in O.S.No.256 of 1973 on the file of the learned District Munsif, Tiruppur, to the Sub Court, Tiruppur, for joint enquiry along with O.S.No.534 of 1994. 2. In the affidavit filed in support of the transfer petition, the petitioners alleged that their father filed suit O.S.No.256 of 1993 on the file of Subordinate Judge, Tiruppur, against his brother, mother and sisters. There was preliminary decree in the said suit. The respondents who were parties defendants were granted larger shares in the final decree. The petitioners were minors. But, they were not made parties at all. Hence, they filed the present suit O.S.No.534 of 1994 on the file of Sub Court, Tiruppur, against the respondents claiming 2/6th share in all the properties. Taking advantage of the decree in O.S.No.256 of 1973, the 3rd respondent filed E.P.No.71 of 1996 and the second respondent filed E.P.No.72 of 1996 on the file of the District Munsif, Tiruppur for executing the final decree. They attempted to dispossess the petitioners. The final decree cannot be executed in the suit O.S.No.534 of 1994. It is one of the issues in their suit and on which till the decision is arrives, the execution should not be allowed. Hence the petitioners seek to transfer the R.P. as mentioned above. 3. In the counter filed by the respondent in the form of an affidavit in support of the petition to vacate the stay, the second respondent has alleged that the decree holder in the suit in O.S.No.256 of 1973, after filing the said suit obtained injunction against the respondents in O.S.No.534 of 1994 and after filing in a petition before the District Court for transfer, the petitioners have moved this court. The proceeding for transfer is an abuse of process of court. The petitioners also failed to give notice to the respondents. Even though, the respondents filed caveat. The petitioners and their father living together, have sold the lands, and even committed murder together. Therefore, it is false to state that the petitioners and their father are living separately. 4. The second respondent further alleged that the suit was filed by the petitioners father who is the kartha of the family. The petitioners are bound by the final decree. Therefore, the transfer petition should be dismissed. 5. Therefore, it is false to state that the petitioners and their father are living separately. 4. The second respondent further alleged that the suit was filed by the petitioners father who is the kartha of the family. The petitioners are bound by the final decree. Therefore, the transfer petition should be dismissed. 5. The learned counsel for the petitioner contended that the earlier suit was filed by the father and they were not all made parties. Secondly he urged that in a compromise entered in the final decree, the father remained ex parteand the respondents were granted larger shares, the learned counsel further contended in the plaint they have alleged collision between the father and the respondent. Therefore, the petitions should be transferred to the Sub Court where the suit O.S.No.534 of 1994 is pending. 6. The learned senior counsel Mr.T.R.Mani, vehemently contended that E.P.No.71 of 1996 filed by the 3rd respondent Rajammal was dismissed on 2.11.1998. As regards E.P.No.72 of 1996, delivery was ordered by the executing court on 16.10.1998. On 21.10.1998, delivery was effected through court. Thereafter on 27.10.1998 only the petitioners have filed E.A.No.416 of 1998 under Sec.47, C.P.C. for not recording delivery of possession. 7. Even though, this petition is only a transfer petition, since the learned senior counsel as well as the counsel for the respondents argued at length with reference to the rights of the parties, there is necessity for going into the rights of the parties to some extent. Unless the court finds that some right there as claimed by the petitioners in the suit properties notwithstanding the final decree dated 10.2.1993 in O.S.No.256 of 1973, there is no necessity for transferring the execution proceedings to the Sub Court, Tiruppur, where the petitioners have filed the comprehensive suit for partition which is pending. 8. The learned senior counsel Mr.T.R.Mani cited Lingangowda Dedasengowda Patil v. Basangowda Bistangowda Patil Lingangowda Dedasengowda Patil v. Basangowda Bistangowda Patil Lingangowda Dedasengowda Patil v. Basangowda Bistangowda Patil, A.I.R. 1927 P.C. 56, C.K.S.Krishnamurthi and T.A.Sankaralingam v. T.N.Mani T.A.Sankaralingam v. T.N.Mani T.A.Sankaralingam v. T.N.Mani , (1975)1 MLJ. 376 :A.I.R. 1975 Mad. 206in support of his contention that the decreein O.S.No.256 of 1973 is binding on the petitioners, even though the petitioners were not parties. The learned counsel relied upon paragraph 251 in Mullas Hindu Law. He further cited paragraphs 320 and 486 in Maynes Hindu Law & Usage, 14th Edition. 9. 376 :A.I.R. 1975 Mad. 206in support of his contention that the decreein O.S.No.256 of 1973 is binding on the petitioners, even though the petitioners were not parties. The learned counsel relied upon paragraph 251 in Mullas Hindu Law. He further cited paragraphs 320 and 486 in Maynes Hindu Law & Usage, 14th Edition. 9. The learned counsel further contended that there is no allegation that there was collision between the father and the respondents. Therefore, the decree in the earlier suit is all the more binding on the petitioners. 10. While going into the decisions, with reference to the plaint filed in O.S.No.534 of 1994 it is necessary to consider the contention urged by the counsel on both sides. In the plaint, in paragraph 5, there is an allegation that the defendants 4 to 7 (respondents 4 to 7 in transfer petition) have no share. In para 6. it is alleged that the father was leading a wayguard and immoral life and she was not acting in the interests of the plaintiffs, the petitioners have further alleged that on the death of the grand- father, the defendants have obtained a collusive decree on 5.9.1994. In the cause of action paragraph 7 also they have stated that they learnt about the collusive decree when the defendants threatened to dispossess them by wrongfully execution of the collusive decree. 11. From the aforesaid facts, the court can only come to the conclusion that the petitioners have made an attempt in their present suit to show that there were some collusion on the earlier case. Hence what we have to consider is whether the petitioners are bound by the final decree in the earlier suit or not. 12. 11. From the aforesaid facts, the court can only come to the conclusion that the petitioners have made an attempt in their present suit to show that there were some collusion on the earlier case. Hence what we have to consider is whether the petitioners are bound by the final decree in the earlier suit or not. 12. In Lingangouda Dedasengowda Patil v. Basangowda Bistangowda Patil , A.I.R. 1927 P.C. 56 the Privy Council has held that, “In the case of Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age, and then bring an action or bring an action by his guardian before and in each of these cases, therefore, the court looks to Explanation 6 of Sec.11 of the Code of Civil Procedure to see whether or not the leading member of the family has been acting either on behalf of minor in their interest, or if they are minors, with the assent of the majors.” 13. In the present case, the position is that the preliminary decree was obtained on 17.12.1976. The final decree came to be passed only on 10.2.1993. It is also stated by the learned counsel for the petitioner that in the final decree, father remained ex parte and without the father, the other parties viz., the respondents herein have entered into compromise, At this stage, the learned Senior counsel Mr.T.R.Mani, argued that there is no evidence to show that the final decree is compromise a decree, and the father of the petitioner remained ex parte. The learned counsel for the petitioner produced a xerox copy of the final decree and contended that the final decree is part of the proceedings and therefore no fresh evidence is necessary to belet in on this aspect. The final decree proceedings and therefore no fresh evidence is necessary to below in on this aspect. The final decree proceedings were initiated by Rajkammal. the sister of the petitioners father. the 4th respondent in the final decree proceedings. The first respondent, father remained ex parte. Out of 15 respondents, respondents 1, 7, 8, 9, 11, 12 and 14 remained ex parte respondents 10 and 13 are dead. Therefore, the compromise was between the petitioner and respondents 2 to 6 only. the sister of the petitioners father. the 4th respondent in the final decree proceedings. The first respondent, father remained ex parte. Out of 15 respondents, respondents 1, 7, 8, 9, 11, 12 and 14 remained ex parte respondents 10 and 13 are dead. Therefore, the compromise was between the petitioner and respondents 2 to 6 only. A reading of the final decree shows that it was compromise decree entered into between some of the parties only and not by all the parties. In the light of the aforesaid facts, it cannot be said that the father was acting on behalf of the petitioners also diliquently as found in Lingangouda Dedasengowda Patil v. Basangowda Bistangowda Patil, A.I.R. 1927 P.C. 56 in C.K.S.Krishnamurthi v. Chidambaram Chettiar C.K.S.Krishnamurthi v. Chidambaram Chettiar C.K.S.Krishnamurthi v. Chidambaram Chettiar , (1946)1 MLJ. 58 also, a Division Bench of this Court has approved the principle referred to in Egappa v.Ramanathanwherein it is held that, “The minor son can sue to set aside the decree passed against him on the ground of gross negligence on the part of the guardian appliance to cases with reference to a suit which concerns his own right and in which decree was passed against the minor”. In the said case, the father filed a suit for recovery of possession of a land in the first suit and failed. Subsequently, the sons alleged that the father was grossly negligent in the conduct of the earlier suit. The Bench has taken the view that the father as the manager of the family sued on the basis that the property belonged to the family. 14. But, as we have noticed above, in the present case, though the father filed a suit of partition, he did not take any step to have the final decree passed. On the other hand, he was only a respondent in an application filed by his sister for final decree and remained ex parte. Further the final decree came to be compromised by some of the parties only. Therefore, the question of representation by the father is not there as for as the final decree is concerned. In T.A.Sankaralingam v. T.R.Mani and others T.A.Sankaralingam v. T.R.Mani and others T.A.Sankaralingam v. T.R.Mani and others, A.I.R. 1975 Mad. Further the final decree came to be compromised by some of the parties only. Therefore, the question of representation by the father is not there as for as the final decree is concerned. In T.A.Sankaralingam v. T.R.Mani and others T.A.Sankaralingam v. T.R.Mani and others T.A.Sankaralingam v. T.R.Mani and others, A.I.R. 1975 Mad. 206 another Division Bench of this Court has held that“ the decree would be still binding upon him because it has been granted against the manager of family of which was an undivided co-parcener”. Even though the aforesaid statement appears to be in favour of there respondents in the same paragraph, the following statement is also found. “If the suit was brought in a representative capacity and decree granted in pursuance thereof. It goes without saying that the other members of the family must be held to be substantial parties through the manager of the join family. The fact that they are not no common parties to the quiz will not render the decree is the suit any the less binding on them.” As we have already seen, the father remained ex parte the question of representing the minor does not arise at all. The Paragraph 251 in Mullas Hindu Law, 16th edition, is as follows: “Parties to suits:(1) where the manager of a joint family, having power to do so, enters into a transaction in his own -- on behalf of the family, whether it be a contract (m), or a mortgage (a) or a sale (o) he may sue or be sued alone in respect of that transaction, where the mortgage by the manager extends to the entire interest of the family and is not confined to the managers share he must be deemed to have acted in the transaction on behalf of the family (p). The other coparceners are not necessary parties to a suit on such a mortgages as they are effectually represented by him (q) and are bound by the decree in the suit (r)”. In paragraph 253 also there is a statement as follows: “It is not necessary, in order that a decree against the manager may operate as res judicata against coparceners who were not parties to the suit, that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager. In paragraph 253 also there is a statement as follows: “It is not necessary, in order that a decree against the manager may operate as res judicata against coparceners who were not parties to the suit, that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager. It is sufficient if the manager is in fact suing or being sued as representing the whole family.” 15. The observations contained in the above said passage will be applicable to the present case, if the father had really represented the petitioner in the final decree proceedings. After filing the suit and after a preliminary decree was passed on 17.12.1976, the father did not take any step. He did not file a petition for passing the final decree. That apart, he remained exparte when his sister filed a petition for passing final decree after 17 years. In such circumstances, I am not able to hold that the observations contained in the aforesaid passages would be applicable to the facts of the present case. The learned senior counsel cited paragraph 486 in Maynes Hindu Law & Usage, 14th Edition, The said paragraph is as follows: “All must be parties to suit.In a partition suit, all coparceners must be before the court either as plaintiffs of as defendants Any coparcener of co-sharer who sues for partition of property must make the other coparceners of co-sharers defendants because the partition which is made in his favour of is a partition against the coparceners or co-sharers. Any decree which gives him a a portion of property takes away all rights which they would otherwise have to that portion, and therefore, it is decree against them and his favour. A decree against them and his favour. A decree for partition made in a suit instituted by a member of a joint Hindu family is therefore res judicata as between all who are parties to the suit. Besides the coparceners, the wife mother or grandmother, when entitled to share on partition are necessary parties to the suit as well as the pursuant and of a coparceners interest. Where the partition is claimed as between branches of the family only, the heads of all the branches alone need be made parties, Of course, in such a case. Besides the coparceners, the wife mother or grandmother, when entitled to share on partition are necessary parties to the suit as well as the pursuant and of a coparceners interest. Where the partition is claimed as between branches of the family only, the heads of all the branches alone need be made parties, Of course, in such a case. It is open to the others to apply to be made parties. Those members of the family who are entitled to maintenance would be proper parties to a suit for partition. So too the joinder of creditors and in particulars of decree-holders as well as or mortgages as defendants may be proper in cases where their claims are disputed.” 16. Even in the above aforesaid passage what we see is that, in a partition suit, the heads of all branches alone need be made parties. The suit viz. No.256 of 1973 was not a suit between the heads of branches. The suit was filed in 1973 when the father had died leaving a widow, a daughter through the first wife and 2 sons and three and three daughters. The suit was filed by one of the sons against his brother, mother and sisters not against heads but against individuals. Further in the passage there is also a statement to the effect that a partitions made in a suit instituted by a member of a joint Hindu family would be res judicata between all who were made parties to the suit. Therefore, the passage cited by the learned senior counsel for the respondents are nor fully in support of his contention. 17. The learned counsel for the petitioners contended that even assuming that the father represented the petitioners in the earlier suit, the final decree is not binding even upon the father. Therefore, it is not at all binding on the petitioners, Because, the final decree was a compromise decree where the father remained ex parte. The learned counsel cited Taraprasena Sarkar and another v. Kalikamohan Sarkar and others Taraprasena Sarkar and another v. Kalikamohan Sarkar and others Taraprasena Sarkar and another v. Kalikamohan Sarkar and others , A.I.R. 1924 Cal. 80 in which a Division Bench of Calcutta High Court has held that, “There can be no compromise binding upon all the parties until and unless all the parties have joined in the compromise.” 18. 80 in which a Division Bench of Calcutta High Court has held that, “There can be no compromise binding upon all the parties until and unless all the parties have joined in the compromise.” 18. The learned counsel relied upon Sanyasi Jena and others v. Mina Jenu and others Sanyasi Jena and others v. Mina Jenu and others Sanyasi Jena and others v. Mina Jenu and others , A.I.R. 1984 Ori. 213. In paragraph, 2, the learned single Judge of the Orissa High Court distinguished C.Thiruvengada Mudalier v. Thangavelu Mudalier C.Thiruvengada Mudalier v. Thangavelu Mudalier C.Thiruvengada Mudalier v. Thangavelu Mudalier , A.I.R. 1928 Mad. 594 and held “It is settled law that a compromise of partition suit would be ineffectual (generally) unless all the necessary parties to the action having interest in the property and likely to be prejudicially affected by the compromise join in it.”. 19. The learned counsel for the petitioner also relied upon Tapeshwar Mishra IN RE. Tapeshwar Mishra IN RE. Tapeshwar Mishra IN RE. , A.I.R.1972 Pat. 16. In the said case, the learned single Judge has held that, “Only some of the co-sharers have get no right to partition the properties and make allotment of those properties as they like without the consent of others. Even in certain cases some co-sharers who are no party to this arrangement may accept the allotment and a final decree may follow on such allotments but if they do not accept the allotments the court has got no jurisdiction to thrust these allotments on the head of non-consenting parties to the arrangement as ex parte. The court below in the present case has adopted a novel method and has decreed the suit in terms of the compromise as against the parties who joined the compromise, on contest against defendant No.4 and ex parte as against the rest. I fails to understand as to how the different allotments made in the compromise could be thrust upon the head of defendant No.4 and others who did not join the compromise.” 20. From the aforesaid decisions, there is a doubt created as to whether the compromise decree in the earlier suit is binding on the petitioner or not. Therefore, prima facie, I find that there is some justification in the claim of the petitioner that their claims should be considered on merit. From the aforesaid decisions, there is a doubt created as to whether the compromise decree in the earlier suit is binding on the petitioner or not. Therefore, prima facie, I find that there is some justification in the claim of the petitioner that their claims should be considered on merit. I have not come to any definite conclusions with reference to the earlier partition decree. I have not expressed my final view on the decision and contentions, I only feel that the claim of the petitioners have to be considered on merits. 21. The learned counsel for the respondent contended that there is a definite collusion between the father and the sons. Only with the object of harassing the 2nd respondent, the transfer petition has been filed. Even to some extent if the court is to hold that there is some kind of collusion between the father and sons in bringing about the suit, it cannot straightaway dismissed or reject a claim on that ground alone if the plaintiffs in a suit are able to show some justification for a full trial or their claim notwithstanding the fact, the claim is tainted with collusion. 22. Yet another contention of the learned counsel is that after suit filed in 1973, only in 1994 the suit has come to the finality. Hence it should not be draged on, further, The fact remains that even though the suit was filed in 1973, the final decree was passed only on 10.2.1993. Only at that stage, the properties in possession of the petitioners have come to be disturbed. The petitioners are not responsible for the delay. 23. As I have stated earlier, the claim of the petitioners deserves to be adjudicated, The abuse of process will arise only when the claim is wholly mala fide. But, as stated earlier, the petitioners have a grievance which cannot be totally brandished as mala fide and without substance, Therefore, the petition for transfer cannot be brushed as aside as an abuse of process of law. 24. For the foregoing reasons, petition for transfer is allowed. The proceedings pending in E.P.No.72 of 1993 in O.S.No.256 of 1993 and E.A.No. of 1998 are transferred to the Sub Court, Tiruppur for joint enquiry along with O.S.No.534 of 1994. 24. For the foregoing reasons, petition for transfer is allowed. The proceedings pending in E.P.No.72 of 1993 in O.S.No.256 of 1993 and E.A.No. of 1998 are transferred to the Sub Court, Tiruppur for joint enquiry along with O.S.No.534 of 1994. Considering the circumstances of the case, the learned Subordinate Judge, is directed to dispose the suit and E.P. proceedings within a period of six months from today consequently the C.M.P. Nos.1899 of 1998 and 573 of 1989 are closed.