THANGAVELU ASARI Vs. LAKSHMI AMMAL

JUDGEMENT

(1.) THE dispute in this appeal relates to properties which originally belonged to, and were enjoyed by one Mookan Asari, the husband of the defendant. The plaintiff is his brother. The defendant's husband died on 28th October 1943 issueless leaving considerable properties. The plaintiff, the brother, filed a suit against the widow, the defendant, O. S. No. 239 of 1944 in the Court of the District Munsif of ambasamudram, claiming the properties on the ground that the properties belonged to an undivided joint family of which he was the surviving coparcener, the defendant contended that the properties were the separate properties of mookan Asari. Eventually, the suit was compromised and a decree was passed on that compromise on 11th June 1945. The main terms of the compromise were that the plaintiff should succeed to and be in enjoyment of the properties set out in schedule I to the compromise with all rights and privileges and that the defendant should succeed to, and be in enjoyment of the properties in Schedule II of the compromise with all rights and privileges. In the decree which was passed in accordance with these terms the following clauses are material:

(2.) MR. B. Ramamurthi Aiyar, learned counsel for the appellants confined his contention to an application of Section 2 of the Hindu Widows Remarriage Act, that section runs thus:

(3.) MR. Ramamurthi Aiyar contended that the basis of every compromise is a recognition of antecedent title in the parties deriving a benefit under its terms and therefore if the widow obtained a benefit of absolute interest 'fn the suit properties as a result of the compromise with her husband's brother, it must be attributed to a recognition of her antecedent right in and to the suit property and such right undoubtedly was a right by inheritance. The theory that every compromise implies the recognition of an antecedent title in every one of the parties taking benefit under the compromise is certainly not universally true. There are many instances when rights are conferred on persons who have admittedly no antecedent title in and to the property to which they become entitled under the compromise. But nevertheless family settlements conferring such rights on persons having no. antecedent title have been confirmed by the High Courts in the land and the Privy council. In our opinion it is not necessary to discuss the question from this aspect. It is sufficient for disposal of this appeal to construe Section 2 and decide whether the terms of the section would apply to the instant case. As we have already said, the suit property cannot be brought within the mischief of Section 2. There can, therefore, be no forfeiture of the defendant's right to the suit property.