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2002 DIGILAW 1047 (MAD)

Parvathi and Others v. Ponnammal and Others

2002-09-16

A.RAMAMURTHI

body2002
Judgment :- The plaintiffs in the suit are the appellants. 2. The case in brief is as follows:- The plaintiffs filed a suit for partition and separate possession of their half share in the suit property and also to direct the defendants to give account for the income from the suit property from the date of plaint till date of recovery of possession. One Kallikattan Arumuga Chettiar had two sons, namely, Karuppa Chettiar @ Karuppanna and Subramanian Chettiar. Karuppa Chettiar died intestate leaving behind him his wife, Thailammai Ammal and the plaintiffs are their daughters. Subramanian Chettiar died leaving behind him his wife Ponnammal. Subramanian Chettiar had two wives, namely, Valliyammai and Ponnammal. The first wife Valliammai died leaving behind her two daughters, Koothalammal and Kaveri. The said Koothalammal died and her children are defendants 3 and 4. The schedule mentioned properties were ancestral joint family properties belonged to Karuppa Chettiar and Subramania Chettiar and they were not divided. After their death, the brother of the plaintiffs and the 1st defendant were in possession and enjoyment. The mother of the plaintiffs filed O.S.No.467 of 1955 on the file of District Munsif Court, Kulithalai for maintenance. Taking advantage of her ignorance, the 1st defendant got a fraudulent compromise decree in her favour and the compromise decree is not valid as it was obtained fraudulently and even on the date of the alleged compromise decree, the mother of the plaintiffs has got absolute right and the same got enlarged as per the provisions of the Hindu Succession Act. Even subsequent to the decree, the plaintiffs' mother has been in possession. The plaintiffs have been in joint possession along with the 1st defendant. The 1st defendant filed suit against the plaintiffs for possession in respect of B schedule property. During the pendency of the suit, the 2nd defendant died and there is no legal heir. Hence the suit. The 1st defendant filed a written statement and denied that the suit properties are the ancestral properties. They belonged to the husband of the 1st defendant. Karuppa Chettiar and Subramanian Chettiar are brothers and Karuppa Chettiar died leaving behind Subramanian Chettiar. In fact, the mother of the plaintiffs filed a suit after the demise of her husband that the properties belong to her as the legal heir in O.S.No.655 of 1952 on the file of District Munsif Court, Kulithalai for declaration. Karuppa Chettiar and Subramanian Chettiar are brothers and Karuppa Chettiar died leaving behind Subramanian Chettiar. In fact, the mother of the plaintiffs filed a suit after the demise of her husband that the properties belong to her as the legal heir in O.S.No.655 of 1952 on the file of District Munsif Court, Kulithalai for declaration. There is a clear finding that there was no partition between Karuppa Chettiar and Subramanian Chettiar and the suit was also dismissed. Subsequently, to claim at least maintenance, she filed O.S.No.467 of 1955 and at the intervention of mediators in the Village, there was a compromise wherein it was agreed to give Rs.300/= per annum to her by way of maintenance and she was also permitted to reside in item 3 of the house property till her lifetime. After her lifetime, the house property should devolve upon the 1st defendant. The plaintiffs are also well aware of the compromise. It is not correct to state that the properties were enjoyed in common. The suit is also barred on the principles of res judicata. It is incorrect to state that the right, if any available to the mother got enlarged by the provisions of the Hindu Succession Act. On her demise, plaintiffs 1 and 2 illegally trespassed into the house property and for which only, she filed O.S.No. 2 of 1983. The plaintiffs are not entitled to get any relief. Defendants 3 and 4 filed a written statement supporting the case of the 1st defendant. The mother of the plaintiffs filed the suit for maintenance claiming a charge over the properties and it was contested and ultimately compromised. The plaintiffs' mother was fully aware of the compromise and also the terms and willingly signed the same. The compromise decree was also executed by the mother and the charged properties were brought for sale. After execution of the decree only, monies were realised and were drawn by the plaintiffs' mother through her counsel. The plaintiffs' mother as well as the plaintiffs are estopped and precluded by conduct from questioning the validity of the compromise decree. The plaintiffs' claim is also barred by limitation. The trial court framed 5 issues and one additional issue and there was a joint trial with O.S.No.2 of 1983. The evidence recorded in O.S.No.452 of 1983 was treated as evidence in the other suit. The plaintiffs' claim is also barred by limitation. The trial court framed 5 issues and one additional issue and there was a joint trial with O.S.No.2 of 1983. The evidence recorded in O.S.No.452 of 1983 was treated as evidence in the other suit. On behalf of the plaintiffs, P.W.1 was examined and Exs.A-1 to A-4 were marked and on the side of the defendants, D.W.1 was examined and Exs.B-1 to B-22 were marked. The trial court granted a preliminary decree in favour of the plaintiffs and left open to separate proceedings under Order XX Rule 12 of Civil Procedure Code in respect of mesne profits and dismissed O.S.No.2 of 1983. Aggrieved against this, defendants 3 and 4 preferred A.S.No.10 of 1990 on the file of District Court, Trichy and the learned Judge after hearing the parties, allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit. Aggrieved against this, the plaintiffs have come forward with the present second appeal. 3. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration: (1) Whether the lower Appellate Court is right in holding that Exs.A2=B11 compromise decree in maintenance suit between plaintiffs' mother and first defendant would amount to waiver and would constitute a bar to claim partition by plaintiffs and their mother especially when claim of partition is not the subject matter of suit O.S.No.467/55 DMC Kulithalai that ended in Ex.A2=B11 compromise decree ? (2) When the plaintiffs' mother acquired absolute right under Section 14(1) of the Hindu Succession Act in her husband's undivided half share in the suit properties whether the lower Appellate Court is right in reversing the well considered judgment and decree of the trial court in holding that by virtue of Exs.A-2=B-11 compromise decree in maintenance suit entered into between plaintiffs' mother and first defendant in respect of maintenance claim after the Hindu Succession Act 1956 was passed, plaintiffs' mother and plaintiffs are not entitled to claim the relief of partition ? 4. Heard the learned counsel for the parties. 5. It is admitted that the properties originally belonged to one Arumugam Chettiar and he had two sons namely, Karuppa Chettiar and Subramania Chettiar. Thailammai Ammal was the wife of Karuppa Chettiar and the plaintiffs are her children. The 1st defendant is the wife of Subramania Chettiar. 4. Heard the learned counsel for the parties. 5. It is admitted that the properties originally belonged to one Arumugam Chettiar and he had two sons namely, Karuppa Chettiar and Subramania Chettiar. Thailammai Ammal was the wife of Karuppa Chettiar and the plaintiffs are her children. The 1st defendant is the wife of Subramania Chettiar. Karuppa Chettiar died prior to 1937. Thailammai Ammal filed O.S.No.655 of 1952 on the file of District Munsif Court, Kulithalai, alleging that there was already partition between Karuppa Chettiar and Subramania Chettiar orally and ultimately the suit was dismissed holding that there was no partition between them. Subsequently, Thailammai filed the suit for maintenance against the 1st defendant in O.S.No.467 of 1955 and there was a compromise between Thailammai and the 1st defendant, by which Thailammai was given a sum of Rs.300/= per annum by way of maintenance and a house was also allotted for residence during her lifetime and on her demise, the 1st defendant would be the absolute owner of the property. Ex.B-11 is the compromise decree. 6. The plaintiffs being the legal heirs of Thailammai filed the suit for partition and separate possession of their half share in the property alleging that Thailammai had a pre-existing right by way of maintenance in the property and after passing the Hindu Succession Act, 1956, her right got enlarged and as such, the plaintiffs are entitled to partition. They further stated that the compromise decree Ex.B-11 had been obtained fraudulently. Further, the compromise decree amounts to relinquishment of her right in the immovable property and hence, it requires registration and for want of registration, it is void and unenforceable. Even subsequent to the said decree, Thailammai was in possession of the property and by virtue of section 14(1) of the Hindu Succession Act (hereinafter referred to as 'the Act'), it gets enlarged. 7. Per contra, the learned counsel for the respondents/defendants contended that the maintenance suit ended in a compromise between the parties and with her eyes open, Thailammai signed in the document and she had the benefit of advise from the counsel also. Apart from that, for non payment of the maintenance amount in pursuance of the compromise decree, Thailammai brought the properties for sale by means of an execution petition and she had also collected the maintenance amount. Apart from that, for non payment of the maintenance amount in pursuance of the compromise decree, Thailammai brought the properties for sale by means of an execution petition and she had also collected the maintenance amount. After the compromise decree on 25.07.1956, she was alive for a period of 7 or 8 years and she had also collected the money. During the lifetime of Thailammai after Ex.B-11, she never sought for partition of any property invoking section 14(1) of the Act. Moreover, three years after the death of Thailammai only, the plaintiffs have come forward with the suit as if their mother had right in the property to claim partition. 8. The learned counsel for the appellants/plaintiffs contended that the appellate court erred in holding that by virtue of Ex.B-11 compromise decree arising out of maintenance suit filed by Thailammai against the 1st defendant and Exs.B-15 and B-16 execution proceedings arising out of Ex.B-11 the plaintiffs and their mother are estopped from claiming partition. The lower appellate court also ought to have seen that Thailammai being a Hindu widow had pre-existing right in the property of her husband by way of right of maintenance and that right enlarged into absolute right on the date when the Act came into force. Ex.B-11 compromise decree was passed after Thailammai became absolute owner in respect of her deceased husband's undivided half share in the property by virtue of section 14(1) of the Act would not be a bar for the plaintiffs claiming right of partition. The court below also failed to appreciate that Ex.B-11 compromise decree being unstamped and unregistered is invalid. The court below also erred in holding that by entering into compromise decree in the maintenance suit, the plaintiffs' mother waived her right of claiming partition of her husband's share in the suit property. The lower appellate court also failed to appreciate that the defendants' plea of estoppel by virtue of Ex.B-11 cannot be countenanced as there cannot be any estoppel against statute. The substantial question of law as also raised only in respect of the same plea. 9. It is admitted that Thailammai filed O.S.No.655 of 1952 for declaration that she is entitled to the property on the demise of her husband and ultimately the suit was dismissed on 30th June 1954. Exs.B-7 to B-9 are the documents to prove the same. The substantial question of law as also raised only in respect of the same plea. 9. It is admitted that Thailammai filed O.S.No.655 of 1952 for declaration that she is entitled to the property on the demise of her husband and ultimately the suit was dismissed on 30th June 1954. Exs.B-7 to B-9 are the documents to prove the same. Thereafter only, Thailammai filed the suit for maintenance in O.S.No.467 of 1955 and it ended in compromise on 25.07.1956. Ex.A-2 is the copy of the compromise decree. The 1st defendant was also a party in that suit and Thailammai was granted a sum of Rs.300/= per annum by way of maintenance with a charge over items 2 and 3 of the properties in the plaint and also life interest was given in respect of a residential house and on her demise, the absolute right was given to the 1st defendant. Now, the compromise decree is attacked by the appellants on various grounds. But unfortunately, there is no material to substantiate those grounds. The facts that Thailammai had executed the maintenance decree on more than one occasion and collected the amounts by filing execution petitions are strong grounds to come to a conclusion that there is no basis in the contention of the appellants that the decree was obtained fraudulently. It appears that Thailammai voluntarily accepted the compromise decree and filed execution petitions when maintenance was not given. She was also alive for a period of 7 or 8 years after the compromise decree and she did not thought it fit to file any suit for partition during her lifetime. Only three years after the demise of Thailammai, the plaintiffs have come up with a new case as if the compromise decree was obtained fraudulently by the 1st defendant. Exs.B-17 to B-20 are the documents to show that Thailammai had taken steps to collect the maintenance amount. 10. The learned counsel for the respondents contended that the compromise decree was passed in the earlier suit and now, it is not open to the plaintiffs, who being the legal heirs of deceased Thailammai, cannot maintain a suit and the present suit is barred by res judicata. The learned counsel for the appellants relied on the decision reported in Subba Rao ..vs.. The learned counsel for the appellants relied on the decision reported in Subba Rao ..vs.. Jagannadha Rao ( AIR 1967 SC 591 ), wherein it is clearly stated that if a decree is passed on compromise, it is not a decision by the Court and does not operate as res judicata. Such decree might create an estoppel by conduct. This decision is applicable to the case on hand. Considering the fact that the earlier decree was passed on compromise, I am of the view that it cannot operate as res judicata; but it may operate as an estoppel by conduct. 11. The learned counsel for the appellants next contended that although her husband died prior to 1937, Thailammai has got a pre-existing right to claim maintenance in the property of her husband and this right got enlarged under section 14(1) of the Act. If Thailammai had kept quiet without moving the Court, then there would be some force in the contention. No doubt, there cannot be any estoppel against the statute; but at the same time when the compromise was entered into between the parties after the Act, then Section 14(2) will come into operation. The learned counsel for the appellants relied on B.Coleman & Co., ..vs.. P.P.Das Gupta ( AIR 1970 SC 426 ), wherein it is stated as follows:- "The burden of proving the ingredients of Section 115 lies on the party claiming estoppel. The representation which is the basis for the rule must be clear and unambiguous and not indefinite, upon which the party relying on it is said to have, in good faith and in belief of it, acted. Under the Section the representation which estops a person making it from acting contrary to it is one on the belief of which the other person acts in a manner he would not have done but for it and on believing it to be true". 12. Reliance is also placed on P.K.A.B.Coop.Society ..vs.. Government of Palestine (AIR 1948 Privy Council 207) that the demand and receipt by the government of land taxes may constitute a binding admission as to the tax-payer's ownership in certain circumstances. 13. The learned counsel for the appellants also relied on Raghuvir Singh and others ..vs.. 12. Reliance is also placed on P.K.A.B.Coop.Society ..vs.. Government of Palestine (AIR 1948 Privy Council 207) that the demand and receipt by the government of land taxes may constitute a binding admission as to the tax-payer's ownership in certain circumstances. 13. The learned counsel for the appellants also relied on Raghuvir Singh and others ..vs.. Gulab Singh and others (1998 (II) CTC 253) for the following principle: "Widow's limited interest gets automatically enlarged into absolute right in spite of restrictions placed under documents and instruments – Sub section 2 of section 14 applies to instruments, decree, awards, gifts, etc. which create independent or new title in favour of female for first time – Said sub section has no application where such instruments/documents merely declare or recognise or confirm her share in property or her pre-existing right to maintenance out of property of her husband – Sub section 2 of section 14 is in nature of proviso and it does not interfere with operation of sub section 1 of section 14". 14. Section 14(2) of the Act reads as follows:- "Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a Will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, Will or other instrument or the decree, order or award prescribe a restricted estate in such property". A wife is entitled to be maintained by her husband, whether he possesses property or not. When a man with his eyes open marries a girl accustomed to a certain style of living, he undertakes the obligation of maintaining her in that style. The maintenance of a wife by her husband is a matter of personal obligation arising from the very existence of the relationship, and quite independent of the possession by the husband of any property, ancestral or self-acquired. 15. P.W.1 also in the course of evidence admitted the filing of the maintenance suit by her mother. Although P.W.1 stated that even after the compromise decree her mother was in possession of the property, it has not been established. It is settled position of law that in case of fraud, undue influence and coercion the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. Although P.W.1 stated that even after the compromise decree her mother was in possession of the property, it has not been established. It is settled position of law that in case of fraud, undue influence and coercion the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice, however strong the language in which they are couched may be and the same applies to undue influence and coercion. Now, the appellants took a plea that even at the time of filing the maintenance suit, their mother has got absolute right in the property and the compromise decree will not interfere in her absolute right and as such, the plaintiffs can claim share in the property. The respondents had positively established that Thailammai with her eyes open and on the advise of her counsel had signed the compromise and it is too late for them to contend that it cannot be enforced. 16. Another contention raised by the learned counsel for the appellants is that the compromise decree has not been registered and, as such, it is unenforceable under law. I am unable to agree with the contention of the learned counsel for the appellants. As adverted to, after the compromise decree entered into between the parties, Thailammai filed execution petitions and collected the maintenance amount. It is only when Thailammai relinquished her absolute right in the property under a document, then alone the registration is necessary. Now, after coming into force of the Hindu Succession Act only, the compromise was entered into between the parties and the plea of fraud having failed, the appellants cannot now contend that it requires registration. It is not the case of the appellants that without knowledge of Thailammai, her signature was taken in the document and she was kept in darkness. No evidence has been let in on the side of the appellants to prove that the compromise decree was entered into under different circumstances. However, one residential house was given to the said Thailammai for life enjoyment and in respect of that property alone, she would get absolute right. No evidence has been let in on the side of the appellants to prove that the compromise decree was entered into under different circumstances. However, one residential house was given to the said Thailammai for life enjoyment and in respect of that property alone, she would get absolute right. Even the suit for maintenance was not converted as a partition shit after coming into force of the Act. The lower appellate court had clearly discussed the various points raised by the parties and came to the conclusion that in view of the compromise decree entered into between Thailammai and the 1st defendant after coming into force of the Act, the plaintiffs now cannot claim partition of the property alleging that the compromise decree was obtained fraudulently. In fact, during the lifetime of Thailammai, she has not raised any plea about fraud or coercion; but on the other hand, she had accepted the compromise and executed the same through Court. When this being the position of law, in view of the compromise decree entered into between the parties after the Act coming into force and in the absence of any proof regarding fraud and coercion, the plaintiffs are also bound by the same. When Thailammai during her lifetime has not chosen to question the same, it is not open to the plaintiffs to question at this distance of time and as such, the finding given by the lower appellate court is based on legal evidence and no interference is called for. 17. For the reasons stated above, the Second Appeal fails and is dismissed. No costs.