KRISHNARU NAMPOOTHIRI Vs. VALAYUDHAN

JUDGEMENT

(1.) THE plaintiff in O. S. No. 7 of 1958 on the file of the Subordinate Judge's Court, Attingal, is the appellant. THE suit was filed by him in forma pauperis for cancellation of a sale deed on deposit of the mortgage amount charged on the plaint items. THE suit was dismissed by the trial Court. But in appeal the learned District Judge of Trivandrum reversed the decision and passed a preliminary decree for redemption. In second appeal, a learned single Judge of this Court allowed the appeal reversing the decision of the District Judge and restoring that of the Munsiff. On leave granted by him, this appeal has been filed by,the plaintiff.

(2.) THE plaintiff and defendants 2 and 3 are members of a Malayala Brahmin Illom. THE 3rd defendant is the mother of the plaintiff. THE 2nd defendant is the son of the plaintiff's father by another wife. THE 1st defendant is alleged to be the mortgagee from whom redemption is sought. THEre was a partition in the illom in 1115 evidenced by Ext. P-5 in which the suit properties were allotted to the plaintiff's branch. THE 3rd defendant, mother of the plaintiff, acting for herself and as the guardian of her minor children including the plaintiff executed a sale deed Ext. Dl on 26 11 1123 in respect of the plaint properties. Subsequently, there was a suit by some of the members of the Illom including the plaintiff represented by a next-friend to set aside the partition of 1115and for cancellation of various alienations including Ext. Dl transaction, which came into existence after partition. That suit was compromised under the original of Ext. D-15, compromise petition. Ext. D-19 is the copy of the judgment in that suit. THE present suit was thereafter filed by the plaintiff to set aside Ext. D-l and for redemption of the mortgage.

(3.) THE observations of the Supreme Court in Sailendra Narayan v. State of Orissa AIR. 1956 SC. 346 make the position clear. It has been explained in that decision that the compromise decree creates an estoppel by judgment and a judgment by consent is as effective an estoppel between the parties as a judgment whereby the Court exercises its mind on a contested case. THE Supreme Court quoted with approval the observations of Lord Hershell in In re South American and Mexican Co. Ex. Parte Bank of England, (1895) 1 Ch. 37 which runs as follows: