NANJAMMAL Vs. ESWARAMURTHI GOUNDAR

JUDGEMENT

(1.) C. M. A. No. 381 of 1951 is an appeal by the five appellants against the order of the learned Subordinate Judge dismissing their application, I. A. No. 1106 of 1951 in A. S. No. 215 of 1950, to implead them as respondents 2 to 6 in the said appeal. The facts out of which the application arose were these: One Kaliammal, the paternal grandmother of minor Eswaramurthi, purchased under two sale deeds of 11-7-1929 and 20-9-1929 certain properties. Minor Eswaramurthi through his next friend instituted O. S. No. 432 of 1947, District Munsif's Court, Gobichettipalayam, for a declaration of his title to the suit properties and for possession of the same. He based his suit on the allegation that the properties in question were purchased benami in the name of Kaliammal, his paternal grandmother, by his paternal grandfather, the husband of Kaliammal, from and out of the income of the joint family properties, and that therefore he was entitled to recover possession of the properties. Kaliammal was the sole defendant in the action, and her defence was that the properties were purchased by her from out of her own funds, and that the minor had no right or claim to the suit properties. On these allegations issues were framed, covering the contentions of the parties, and after an elaborate trial, the learned District Munsif found that the properties belonged to the grandmother, and that they were not purchased benami by the paternal grandfather of the plaintiff in the name of the grandmother for the benefit of the joint family. A decree in the suit was passed on 11-3-1950.

(2.) Thereafter the minor plaintiff preferred an appeal against that decree on 3-71950 to the Sub Court, Coimbatore, in A. S. No. 215 of 1950. After the appeal was filed, Kaliammal executed a settlement deed on 9-9-1950, Ex. A. 1, in favour of her grand-daughters (daughter's daughters), Nanjammal, Marayammal and Kaliammal, whereunder she reserved a life estate for herself and settled the vested remainder on the granddaughters. On the same day under Ex. A. 2 the properties were leased in favour of Kolandal Gounder and Pongallappa Goundan. On 15-6-1951 two applications, I. A. No. 1105 of 1951 and I. A. No. 1105 of 1951, were filed by the donees under the settlement deed, the first application being for permission to defend the appeal which was wholly unnecessary, and the other for impleading them as respondents 2 to 6 in the appeal. While these applications were pending, on 2-7-1951, two applications were filed on behalf of the minor plaintiffs, I. A. No. 1314 of 1951 for leave to enter into a compromise with the sole defendant Kaliammal, and I. A. 1315 of 1951 to record the compromise. The compromise was based upon a release deed executed by Kaliammal on 13-61951, Ex. B. 1, and registered on 14-6-1951. Under this release deed Kaliammal purported to admit the title of the plaintiff to the suit properties on the allegation that the funds for the acquisition of the properties were provided by the grandfather from out of the joint family properties. She also stated in that relinquishment deed that under the evil advice of one Marappa Goundan who was indisposed towards the family she executed a settlement deed on 9-9-1950, Ex. A. 1, without any consideration and without any necessity, and that it was only a nominal document not intended to be given effect to. It was for this reason, it was stated, that she did not cancel the settlement deed by a separate document.

(3.) The application to implead the appellants as parties was taken up for consideration by the learned Subordinate Judge earlier, and he dismissed it on the ground that the compromise evidenced by the relinquish men t deed, Ex. B. 1 lawfully terminated the suit even though the compromise was not recorded, for according to him the recording the compromise & the passing of the decree in terms thereof were merely consequential to the compromise, though it was filed in court. It was against this order that this appeal was preferred by the appellants.