PARVATHI Vs. PONNAMMAL

JUDGEMENT

(1.) The plaintiffs in the suit are the appellants.

(2.) The case in brief is as follows:- The plaintiffs filed a suit for partition and separate possession of their half share in the suit property and also to direct the defendants to give account for the income from the suit property from the date of plaint till date of recovery of possession. One Kallikattan Arumuga Chettiar had two sons, namely, Karuppa Chettiar @ Karuppanna and Subramanian Chettiar. Karuppa Chettiar died intestate leaving behind him his wife, Thailammai Ammal and the plaintiffs are their daughters. Subramanian Chettiar died leaving behind him his wife Ponnammal. Subramanian Chettiar had two wives, namely, Valliyammai and Ponnammal. The first wife Valliammai died leaving behind her two daughters, Koothalammal and Kaveri. The said Koothalammal died and her children are defendants 3 and 3. The schedule mentioned properties were ancestral joint family properties belonged to Karuppa Chettiar and Subramania Chettiar and they were not divided. After their death, the brother of the plaintiffs and the 1st defendant were in possession and enjoyment. The mother of the plaintiffs filed O.S.No.467 of 1955 on the file of District Munsif Court, Kulithalai for maintenance. Taking advantage of her ignorance, the 1st defendant got a fraudulent compromise decree in her favour and the compromise decree is not valid as it was obtained fraudulently and even on the date of the alleged compromise decree, the mother of the plaintiffs has got absolute right and the same got enlarged as per the provisions of the Hindu Succession Act. Even subsequent to the decree, the plaintiffs' mother has been in possession. The plaintiffs have been in joint possession along with the 1st defendant. The 1st defendant filed suit against the plaintiffs for possession in respect of B schedule property. During the pendency of the suit, the 2nd defendant died and there is no legal heir. Hence the suit. The 1st defendant filed a written statement and denied that the suit properties are the ancestral properties. They belonged to the husband of the 1st defendant. Karuppa Chettiar and Subramanian Chettiar are brothers and Karuppa Chettiar died leaving behind Subramanian Chettiar. In fact, the mother of the plaintiffs filed a suit after the demise of her husband that the properties belong to her as the legal heir in O.S.No.655 of 1952 on the file of District Munsif Court, Kulithalai for declaration. There is a clear finding that there was no partition between Karuppa Chettiar and Subramanian Chettiar and the suit was also dismissed. Subsequently, to claim at least maintenance, she filed O.S.No.467 of 1955 and at the intervention of mediators in the Village, there was a compromise wherein it was agreed to give Rs.300/= per annum to her by way of maintenance and she was also permitted to reside in item 3 of the house property till her lifetime. After her lifetime, the house property should devolve upon the 1st defendant. The plaintiffs are also well aware of the compromise. It is not correct to state that the properties were enjoyed in common. The suit is also barred on the principles of res judicata. It is incorrect to state that the right, if any available to the mother got enlarged by the provisions of the Hindu Succession Act. On her demise, plaintiffs 1 and 2 illegally trespassed into the house property and for which only, she filed O.S.No. 2 of 1983. The plaintiffs are not entitled to get any relief. Defendants 3 and 4 filed a written statement supporting the case of the 1st defendant. The mother of the plaintiffs filed the suit for maintenance claiming a charge over the properties and it was contested and ultimately compromised. The plaintiffs' mother was fully aware of the compromise and also the terms and willingly signed the same. The compromise decree was also executed by the mother and the charged properties were brought for sale. After execution of the decree only, monies were realised and were drawn by the plaintiffs' mother through her counsel. The plaintiffs' mother as well as the plaintiffs are estopped and precluded by conduct from questioning the validity of the compromise decree. The plaintiffs' claim is also barred by limitation. The trial court framed 5 issues and one additional issue and there was a joint trial with O.S.No.2 of 1983. The evidence recorded in O.S.No.452 of 1983 was treated as evidence in the other suit. On behalf of the plaintiffs, P.W.1 was examined and Exs.A-1 to A-4 were marked and on the side of the defendants, D.W.1 was examined and Exs.B-1 to B-22 were marked. The trial court granted a preliminary decree in favour of the plaintiffs and left open to separate proceedings under Order XX Rule 12 of Civil Procedure Code in respect of mesne profits and dismissed O.S.No.2 of 1983. Aggrieved against this, defendants 3 and 4 preferred A.S.No.10 of 1990 on the file of District Court, Trichy and the learned Judge after hearing the parties, allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit. Aggrieved against this, the plaintiffs have come forward with the present second appeal.

(3.) At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration: (1) Whether the lower Appellate Court is right in holding that Exs.A2=B11 compromise decree in maintenance suit between plaintiffs' mother and first defendant would amount to waiver and would constitute a bar to claim partition by plaintiffs and their mother especially when claim of partition is not the subject matter of suit O.S.No.467/55 DMC Kulithalai that ended in Ex.A2=B11 compromise decree ? (2) When the plaintiffs' mother acquired absolute right under Section 14(1) of the Hindu Succession Act in her husband's undivided half share in the suit properties whether the lower Appellate Court is right in reversing the well considered judgment and decree of the trial court in holding that by virtue of Exs.A-2=B-11 compromise decree in maintenance suit entered into between plaintiffs' mother and first defendant in respect of maintenance claim after the Hindu Succession Act 1956 was passed, plaintiffs' mother and plaintiffs are not entitled to claim the relief of partition ?