KRISHNA BRHARILAL Vs. GULABCHAND

JUDGEMENT

(1.) IN these appeals by special leave identical questions of fact and law arise for descision. It would be convenient to set out the material facts before formulating the questions arising for decision. IN the State of Gwalior there was a firm known as Chhedilal Chaturbhuj. Chhedilal, the owner of the firm had two sons and one daughter. The genealogy of the family of Chhedilal is as follows : <IMG>JUDGEMENT_837_1_1971Image1.jpg</IMG>

(2.) AFTER the death of Chhedilal, it appears the firm in question came into the possession of some of the children of Parvati. In 1926, Bulakichand, grandson of Chhedilal filed a suit against Jwalaprasad (his first cousin), Karnimal, Raggamal and Pannalal seeking possession of the firm. Therein he appears to have alleged that Jwalaprasad who had a half share in the suit properties had been colluding with the other defendants. Bulakichand died during the pendency of the suit. Thereafter his widow Pattobai was impleaded as his legal representave. During the pendency of the suit Jwalalprasad, Karnimal, Raggamal and Pannalal also died. Neither Jwalaprasad nor Karnimal left any successors. Raggamal was succeeed by his son Ganeshilal and Pannalal by his son Lakshmichand. They were duly impleaded in the suit. On 7/06/1941, the parties to the suit compromised their disputes. It may be noted that to that compromise the minor sons of Lakshmichand as well as of Ganeshilal were also parties. Before compromising the suit the parties had obtained the leave of the court as the minor defendants had joined the compromise. Under the compromise, a portion of the suit properties was given to Pattobai and the remaining portion to the defendants in that suit. Pattobai alienated the properties a given to her under three different sale deeds i. e. one on 15/07/1941 and the other two on 24/07/1941. The first sale deed was for a sum of Rs. 1,000.00 and the other two for Rs. 9,000.00 and Rs. 20,500.00 respectively. The appellant is the alienee under all these sale deeds. In 1953, Lakshmichand and his sons and Ganeshilal and his sons instituted three suits seeking declarations that the alienations referred to above are not valid and binding against them, the presumptive reversioners to the estate of Bulakichand. One of those suits is still pending trial. These appeals arise from the other two suits. During the pendency of those suits Pattobai died. Thereafter the suits were contested only by the appellant, the alienee (he will be hereinafter referred to as the defendant). The trial court dismissed the two suits holding that in view of the compromise in the earlier suit, the parties are estopped from challenging the validity of the sale deeds as under that compromise the estate given to Pattobai is an absolute one. In appeal the first appellate Court confirmed the judgment of the trial Court on the ground that as the plaintiffs had not amended the plaint seeking possession of the suit properties after the death of Pattobai the suits were not maintainable. On further appeals being taken by the plaintiffs, the High Court set aside the first appellate Court's judgment. It came to the conclusion that the first appellate Court should have taken into consideration the change in the circumstances that had taken place pending the trial of the suits and moulded the relief according to law. It, accordingly remanded the cases to the first appellate Court for disposal of the same on merits. AFTER remand the first appellate Court again affirmed the decision of the trial Court on two grounds viz (1) that the plaintiffs were estopped from claiming any right in the suit properties as an absolute estate had been given to Pattobai in respect of those properties and (2) that under any circumstance the compromise in question should be considered as a family arrangement and as such is not liable to be reopened This decision was affirmed by a single Judge of the High Court in second appeal. Thereafter the plaintiffs took up the matter in appeal to the Letters Patent Bench The Letters Patent Bench reversed the judgment of the Courts below. It held that the compromise entered into in 1941 was an illegal compromise and as such the same cannot be used to non-suit the plaintiffs. It also disagreed with the conclusion of the learned single Judge that the compromise recorded amounted to a family settlement. These appeals are directed against that judgment.

(3.) THE Letters Patent Bench of the High Court held that the compromise entered into was an illegal compromise. It came to that conclusion on the basis that a Hindu widow cannot enlarge her own rights by entering into a compromise in a suit. But the High Court overlooked the fact that this was not a compromise entered into with third parties. It was a compromise entered into with the presumptive reversioners. Further at no stage the plaintiffs had pleaded that the compromise entered into in 1941 was an illegal compromise. THE plaintiffs took no such plea in the plaint. THEre was no issue relating to the validity of the compromise. Hence the High Court was not justified in going into the validity of the compromise. Further even if the compromise was an invalid one, the parties to the compromise are estopped from challenging the impugned alienations: see Dhyan Singh's case, 1952 SCR 478.