P G HARIHARAN Vs. PADARIL

JUDGEMENT

(1.) The main controversy in this appeal by the plaintiffs centres around a particular clause in a compromise reached between the members of a Hindu family and incorporated in the schedule to the decree passed in terms of the said compromise in a suit O.S. No. 9 of 1951 on the file of the Subordinate Judge's Court, Ottappalam (hereinafter referred to as "the earlier suit")

(2.) The present suit out of which this appeal arises is a suit for partition. The plaintiffs claimed half share in the plaint schedule property based upon Exts. A4 to A6 assignment deeds. The property sought to be partitioned is admittedly item No. 1 in 'C' schedule to the compromise in the earlier suit marked as Ext. A1 in the present suit. Relying upon the terms in Ext. A1 it was contended tot Gopalan, the plaintiff in the earlier suit had half share in the property. The other half tore in the property vested with the members of the sakha of 1st defendant in the earlier suit, consisting of defendants 1 and 3 to 10 in that suit. Further, Gopalan was also entitled to keep possession and enjoyment of the entire property till his lifetime and on his death the members of the sakha of 1st defendant were entitled to be in possession and enjoyment of the property on the terms and conditions subject to which Gopalan was entitled to enjoy the property during his lifetime. None of the parties to the compromise were entitled to alienate or encumber the property or to claim partition of the same during their lifetime. Pointing out that there is no provision in the compromise indicating the manner in which the property is to be enjoyed after the lifetime of the life estate holders, it was contended that the terms of the compromise totally prohibiting the parties from alienating or encumbering or partitioning the property is contrary to law and as such not binding on the parties. Gopalan died in 1970. At the time of his death he had no issues. His father and mother were also not alive. As such his half right in the property devolved upon his sister Madhavi alias Malukkutty in accordance with the provisions in the Hindu Succession Act. Madhavi died in 1973. From the legal heirs of Madhavi, plaintiffs had obtained Exts. A4 to A6 sale deeds and as such plaintiffs are entitled to half share in the property. Plaintiffs impleaded defendants 1 to 7 as the existing members of the sakha of 1st defendant in the earlier suit who were declared entitled to half share in the property. It was claimed that the plaintiffs are in joint possession of the property as coowners. Eighth defendant who is none other than the father of the plaintiffs was impleaded as the lessee of the two buildings situated in the property and the appurtenant land under deceased Gopalan. The 9th defendant was impleaded as a person in whose favour defendants 1 to 7 are known to have executed certain documents creating rights in the property. Alleging that defendants 1 to 7 are illegally collecting the entire income from the property which was estimated at Rs. 3,500/ - a prayer for taking an account of the profits realised and recovery of plaintiff share was also made in the plaint. An amount of Rs. 1,000/- was also claimed as damages for committing waste in the property by cutting trees and dismantling buildings.

(3.) Defendants 1 to 6 filed a joint written statement disputing the claim of the plaintiffs and contending that on the death of Gopalan the entire rights in the plaint schedule property belonged exclusively to the sakha of 1st defendant in the earlier suit as per the terms of the compromise. According to defendants 1 to 6 Gopalan had only a life interest in the plaint schedule property. All the terms and conditions contained in the compromise decree are legal, valid and binding on all parties thereto. Neither the parties to the compromise nor their successors-in-interest can question the validity and binding nature of the terms of the compromise incorporated in the decree. It was further contended that when Gopalan died he had no father, wife or children and as such even if Gopalan had any right in the property it must be deemed to have devolved upon defendants 1 to 7. His sister Madhavi may not be his heir at all. It was further contended that defendants 1 to 7 have assigned all their rights in the plaint schedule property to the 9th defendant. On and after such assignment the 9th defendant is in possession and enjoyment of the property. Regarding 8th defendant, defendants 1 to 6 have contended that he is in possession of the building under a rental arrangement and the lease admitted by the plaintiff in his favour in respect of the building and the land appurtenant thereto is not true. The application for purchase of Jenm right filed by the 8th defendant on the basis that he had obtained a lease of land along with the building from deceased Gopalan has been dismissed. Appeal filed by the 8th defendant against the decision also has been dismissed. The defendants also disputed their liability to account for the profits and to pay damages as claimed in the plaint. It was also contended that the documents based upon which the plaintiff have filed the suit are all documents fraudulently created by the 8th defendant. In the light of the above contentions defendants prayed for a dismissal of the suit.