KONDAMURI AKKAMMA Vs. BHUVANAVAIDIYALA PICHAMMA AND ORS.

JUDGEMENT

(1.) THE appellant was the plaintiff in a suit for partition and mesne profits. The following genealogical tree will help to elucidate the contentions of the parties :

(2.) THE last maleholder, Venkayya, died about 50 years ago, leaving a widow and two daughters. On 8th October, 1908, the widow, Venkamma, made two gift deeds, comprising the whole of the properties which she had got from her husband, in favour of her two daughters, the first defendant under Ex. D -1 getting the larger share and the plaintiff under Ex, D -2 getting the smaller share. In 1912 Venkamma filed a suit against the nephews of Pichamma the deceased widow of her brother -in -law claiming possession of 3.80 acres alleged to have been given by the late Venkayya to the late Pichamma with a stipulation that she should enjoy the land during her lifetime and that thereafter it should pass to the plaintiff's family. The nephews of Pichamma contended that Pichamma was absolutely entitled to the land and had conveyed it to one of them by a deed of gift. A compromise was effected on the advice of mediators after hearing the contentions of both parties. The compromise (Ex. D -10) recites these facts and provides that the defendants shall deliver to the plaintiff Venkamma 1.56 acres out of the land in dispute and shall themselves be absolute owners of the remaining land.

(3.) A more difficult question relates to the right of the appellant to claim partition of the property got by Venkamma in 1912 under the compromise and now claimed by the second defendant. In dealing with this question the trial Court went into the question of title which was in issue in the suit of 1912, and held, that by reason of certain enfranchisement proceedings which recognised both Pichamma and Venkayya as inamdars of the land which included the plot in dispute, Pichamma had a good title thereto and Venkamma's claim was unfounded. It was therefore decided that any title which Venkamma got under the compromise must have been a gift of an absolute estate which pass by the later gift to second defendant. The lower appellate Court purporting to follow the decision of the Privy Council in Nathu Lal v. and distinguishing, on grounds which seem to me inadequate, the decision of this Court in Nagabhushanam v. : AIR1939Mad179 held that Venkamma must be deemed to have filed a frivolous suit and that the title which she got under the compromise must be not the title which she was claiming, but an absolute estate. The effect of Nathu Lal's case, (1935) L.R 63 IA. 155 has been considered in the last case cited and it has been pointed out that there is nothing therein which conflicts with the decision of the Judicial Committee in Rani Mewar Kuwar v. and later cases to the effect that when a person puts forward a claim based on a pre -existing estate and that claim is to some extent recognised by a compromise, that compromise will be interpreted in the light of the claim which was put forward and the estate which will pass will be an estate similar to that which was claimed. In Nathu Lal's case, (1935) L.R 63 IA. 155 , their Lordships hold that this principle cannot be applied, because in the award which was under consideration there was a finding that the case asserted by the widow was not true and a recital that she had admitted before the arbitrators the truth of the facts asserted by her adversaries, so that there was an obvious impossibility in applying the ordinary rule that the title which she got under the award would be deemed to be the title which she claimed in the absence of any indication to the contrary.