SUSHEELA Vs. KUTTIKRISHNAN

JUDGEMENT

(1.) The appeal is directed against the judgment delivered by the Subordinate Judge of Payyannur in O.S. 64 of 1990. The plaintiff is the appellant and the plaintiff and the defendants are brothers and sister. The first defendant and the 3rd defendant died and their legal representatives have been brought on record as respondents. The suit was filed by the appellant for partition of 1/4th share in plaint items 1 to 8 and 1/2 share in item No. 9. The case of the appellant was culled out from the plaint averment and documents filed on her side is summarised herein: The plaint items 1 to 8 were set apart to the appellant and her brothers and sister who were defendants 1 to 3 in partition along with her mother and her mother Madhavi was the sole owner of item No. 9. The mother before her death on 6.12.1984, executed Ext. A1 will on 11.2.1974 in which the present item No. 9 shown as item No. 2 was bequeathed in equal rights to the appellant and the third respondent. Aggrieved by the execution of the Will, the first defendant filed a suit after issue of notice for partition in O.S. No. 230 of 1985 impleading his brother and sisters as defendants. In the suit, the present appellant entrusted the entire matter in respect of her claim to the 2nd respondent and in fact the present appellant had reposed confidence in her sister, 2nd respondent. The appellant did not sign any vakalath nor did she engage any advocate to appear on her behalf in the suit. However, the appellant came to know that a compromise had been arrived at in the suit as per which in item No. 9 measuring 93 cents, 36 1/4 cents had been set apart to the appellant, 34 cents to the third respondent and 10 cents and yard to the first respondent. The appellant never agreed to any such compromise nor had she sighed the compromise memo and she never authorised any counsel to appear on her behalf in the said compromise. Fraud has been perpetrated in the compromise by the 2nd respondent, in whom, she had reposed confidence. Compromise decree was never implemented. The delivery said to have been effected in the compromise decree is a symbolic one and all the appellant and respondents are in joint possession of the items. In the circumstances, the present suit for partition was instituted.

(2.) The deceased first defendant / first respondent remained ex parte and the written statement of the 2nd respondent would be that the appellant was properly represented by her advocate in the earlier suit and she gave instructions to her counsel. She also agreed to the compromise decree and the delivery effected in that suit, was an effective one and not a symbolic delivery. As per the compromise decree, the parties have been in possession of their respective shares. Third respondent was residing with the appellant. This is fit suit for dismissal. The Trial Court after examining the contentions of both sides dismissed the suit on the only ground that the present suit is hit by principles of res judicata on account of the decree passed in O.S. No. 230of 1985. Now the above decree comes up before this Court for consideration and decision.

(3.) Learned counsel appearing for the appellant advanced his argument on two - folds, viz, that the documents and the ocular testimony projected by the witnesses were not properly appreciated by the court below and therefore, the judgment of the court below calls for an interference by this Court in this appeal and as alternative, on the second fold, his submission would be that the compromise decree was passed in O.S. No. 230 of 1985 without her knowledge and in fact, she never agreed to the compromise and therefore, she is not bound by the compromise decree. However, she would move before the Munsiff, Taliparamba an application under O.23 R. 3 of the Code of Civil Procedure to decide the question as to the validity of the adjustment or satisfaction of the compromise decree arrived at in the above suit. That right was not already availed of by the appellant before the Trial Court. Since this appeal is a continuation of the suit, the matter can be remanded back to the Trial Court permitting the appellant to avail that right by way of an application for a decision as to the validity of the compromise decree passed under O.23 R.3 of Code of Civil Procedure. It was also incidentally submitted by the learned counsel for the appellant that the compromise decree does not attract the provision of S.11 of Code of Civil Procedure. Therefore, the plea raised by the defendants / respondents that the suit is hit by the principles of res judicata is not correct and cannot be acted upon.