MADASWAMI PILLAI Vs. MATHEVAN PILLAI

JUDGEMENT

(1.) This is a plaintiffs appeal. It was once heard ex parte and allowed by a Division Bench of the Travancore High Court consisting of Krishnaswami Aiyar, C.J. and Simon, J. The case has since been allowed to be reopened under O.40 R.20 Civil Procedure Code (Travancore). The previous decision is reported in Madaswami Pillai v. Madhava Pillai, 1947 TLR 822. The opening paragraph of the judgment of the learned Chief Justice sets out the material facts as follows:-

(2.) The Trial Court dismissed the suit. The ground of the decision is that the compromise decree in the prior suit, O.S. No. 30 of 1107, was valid and binding on the plaintiff. That question forms the main point in the appeal but speaking with respect we feel constrained to say that that aspect would seem not to have been fully kept in view by the learned Judges who disposed of the case previously. They had not the benefit of an argument from the first defendants side. In their judgment they first considered whether the gift evidenced by Ext. A could have been validly made by Chattamuthu without her husbands consent. Taking what may be called a liberal or progressive view that so long as she was not living with her husband or even within his control when she acquired the property or gifted it the rule prohibiting a married woman from disposing of her non soudayika stridhanom without the husbands consent will not render the gift invalid they would seem to have thought that the plaintiff was as a matter of course entitled to have the compromise decree annulled. This approach, would seem to us not to have been proper.

(3.) If a court is for the first time called upon to decide whether a particular gift is valid or not it is certainly open to that Court to give a liberal construction to a rule of ancient Hindu Law and decide the case accordingly. That however is not the position in the case on hand. The question of the validity of the gift was directly put in issue in the former litigation and that litigation ended in a decree passed no doubt on foot of a compromise. The Court gave leave to the plaintiffs guardian to enter into that compromise before the Court made it the basis of the decree. In such circumstances the first step the plaintiff has to take is to have the compromise of the former litigation set aside Rameswar Pershad Singh v. Ram Bhaduar Singh, (1907) ILR 34 Cal. 70 (P.C.). Though the rule of res judicata does not in terms apply to a compromise decree, to all intents and purposes such a decree has the same effect as res judicata as a decree passed in Initum Bhaishanker v. Morarji (1912) ILR 36 Bom. 283 at 286 and In re South American & Mexican Co. (1895) I Ch. 37. So long as the compromise decree stands it is not open to either party thereto to give the go by to it, but being a mere creature of the agreement on which is founded it may be set aside on any ground which would invalidate an agreement between the parties. See Wilding v. Sanderson (1897) 2 Ch. 534. When a compromise decree is passed against a minor besides the grounds open to parties who are sui jans at the time of the agreement the minor can have it vacated also on other grounds. That the compromise is not beneficial to him and that the guardian or the next friend as the case may be acted with gross negligence in bringing about the compromise is one such recognised ground. Another, or rather the other, is that the provisions prescribed by the Code of Civil Procedure to pass a consent decree against a minor have not been duly complied with.