R. MUTHAMMAL Vs. NARMADA

JUDGEMENT

(1.) THE plaintiff in O.S. 138 of 1972 on the file of the Court of the Subordinate Judge, Erode, who has been called upon to pay additional court -fee of Rs. 4499 -50, has preferred this revision petition to canvass the propriety of the order.

(2.) WITH regard to the properties of one Rangaswami Naidu, there was a partition suit in O.S. 134 of 1969 to which the members of the family of Rangaswami Naidu were parties. Rangaswami Naidu had two sons of whom one Venkataswami Naidu was the second. In the partition suit, not only Venkataswami Naidu, but his son, the 9th defendant in present suit, were made parties. Ultimately, the suit was compromised on 9 -7 -1969 and a compromise decree was passed in the suit under the terms of which, the A schedule properties in the present suit were given to Venkataswami and his minor son, and in addition, the B Schedule property herein was given to the minor to be enjoyed by him absolutely. In the present suit, the plaintiff who is the widow of Rangaswami Naidu, claims that subsequent to the compromise decree she came to know through her son Venkataswami that he had already been married to one Janaki and as such Venkataswami's marriage with the tenth defendant Krishnaveni who is the mother of the minor ninth defendant was a void marriage. The further case of the plaintiff is that the compromise in the earlier suit proceeded on the assumption that the tenth defendant was the legally wedded wife of Venkataswami and the ninth defendant an off -spring of lawful wedlock, and was therefore entitled to a share in the joint family properties which were sought to be partitioned in O.S. 134 of 1969. Venkataswami died subsequent to compromise decree and has left behind him his wife, Krishnaveni, the tenth defendant herein, whose valid marriage with Venkataswami is impugned, and a minar son and a daughter who are respectively the ninth and the eleventh defendants in the present suit. According to the plaintiff, the ninth and eleventh defendants are only the illegitimate children of Venkataswami and will, therefore, have no rights whatever in the A and B Schedule properties and are bound to redeliver those properties in their possession to the plaintiff and the other heirs of Rangaswami Naidu. The prayer in the suit is as follows -

(3.) MR . Sivasubramaniam, learned counsel for the petitioner, (plaintiff), vehemently contends that the opinion of the court -fee examiner which has found favour with the lower court is not in accordance with law and that the plaintiff was entitled to ignore the compromise decree and straightway ask for the reliefs of declaration, partition and possession. According to him, the entire compromise decree is vitiated by the fact that the compromise was entered into on the assumption that the tenth defendant was the legally wedded wife of Venkataswami and that the ninth defendant was his legitimately born son. He would, therefore, argue that when it is now found that the basis on which the parties entered into the compromise was misconceived, the plaintiff is entitled to ignore the compromise decree and she was not bound to ask for the decree being set aside. It is conceded by him that the granting of the reliefs asked for in the present suit may involve the setting at naught of the compromise decree, but his contention is that that cannot alter the state of affairs in any manner.