BACHCHA Vs. CHAMRU

JUDGEMENT

(1.) The only question raised in this appeal relates to the construction of a compromise decree passed on Suit No. 31 of 1941. It arises thus:

(2.) The present suit was filed by Bachcha and his son Gopal as plaintiffs 1 and 2 against Chamru (defendant) seeking partition of the house claiming half share in it on the ground that the house continued to retain its ancestral character even after the compromise decree and that the benefit of the property recovered under the compromise decree enured to the joint family. The claim was resisted by Chamru contending that the compromise decree was for his benefit alone and there was no question of Bachcha and Gopal having any share in that property. The question whether the plaintiffs would be having any share in the suit house obviously depended on the construction of the compromise decree. The Trial Court held that as a result of the compromise the mortgage must be regarded as having been declared illegal and not binding on Chamru's share in the ancestral houses and that in any case on construction of the compromise decree the suit house had been released in favour of Chamru for his benefit alone and there was no question of plaintiffs having any interest in that property. It, therefore, dismissed the suit. In appeal, the learned 4th Additional Civil Judge reversed that decree and granted a share to the plaintiffs. In second appeal preferred by Chamru the High Court reversed the appellate decree and restored that of the Trial Court. In other words, the plaintiffs' suit was dismissed and they have come up in appeal to this Court.

(3.) In this appeal counsel for the plaintiffs contended that by the compromise decree the mortgage was held to be illegal and void so far as one house is concerned and if a coparcener retrieves an ancestral house it will retain its original character and the plaintiffs would be entitled to get a share in it. The principle enunciated by counsel will not avail because we are only concerned with the question of proper construction of the compromise decree, and whether the benefit thereunder was intended to be given to Chamru alone or to the joint family. Counsel has taken us through the terms of the decree and all that the decree states is that the plaintiffs' suit is decred in respect of one house while it is dismissed in regard to the other house. The plaintiffs have based their claim to a share in the concerned house on the strength of this decree and hence its effect will have to be determined. Two or three aspects emerge in light of which the decree will have to be construed. First, though Bachcha and Babu were impleaded as party defendants to suit No. 31 of 1941 nothing was said about any interest or benefit or relief being given to them in the decree-in fact they were discharged from the suit long before the compromise was made between Chamru and Padmavati. Secondly, the compromise terms show that Padmavati was prepared to release one of the two houses in favour of Chamru so that the minor should receive some benefit. Thirdly, because the compromise was for the benefit of the minor the Court sanctioned it. It does appear that the parties to that suit intended to release the share for Chamru alone, which had become half and in lieu of such share in both the houses one house was completely released in his favour. In our view, in light of these facts the High Court has rightly construed the terms of the compromise decree as conferring the benefit thereunder to Chamru alone. The appeal is, therefore, dismissed with cost.