KAMALAYEE AMMAL Vs. PARVATHI AMMAL AND ANR.

JUDGEMENT

(1.) THIS second appeal raises an interesting question of res judicata. The plaintiff in a suit for partition and separate possession of a half share in the suit properties, has preferred the second appeal. Her claim to a half share in the properties has been accepted by the Courts below on the merits, but is found barred by a prior judgment in a suit to which the plaintiff and the first defendant were parties. The material facts are now concluded by the concurrent findings of the Courts below. The suit properties and other properties originally belonged to one Palaniyandi Servai who left five sons, Udaippan Servai, Muthuchamy Servai, Muthuveeran Servai, Muthukaruppan Servai and Velu Servai. Plaintiff Kamalayee Ammal is the widow of Muthuchamy Servai who died undivided long prior to the enactment of the Hindu Women's Right to Property Act, 1937. She had a son Palaniyandi Servai and a daughter Alagammal. The son Palaniyandi Servai died in 1952, leaving surviving his widow Parvathi, the first defendant in this suit. The second defendant in the suit, a minor, is the sister's son of the first defendant and claims absolute title to the suit properties under a registered settlement deed Exhibit B -1, dated 5th November, 1956, executed by the first defendant for herself and on behalf of her daughter Chinthamani in favour of the second defendant. The plaintiff pleaded family arrangement in 1955, under which in lieu of her claim for maintenance and other claims under the Hindu Law such as residence and expenses for the ceremony of her husband, it was agreed to partition the family properties among the members of the family and give the plaintiff and the first defendant jointly a 1/5th share, that is, the share of the plaintiff's husband's branch, making them jointly liable for the discharge of 1/5th share of the debts due by the family. Originally there was an oral partition and this was followed by a registered deed of partition executed by members of the family, Exhibit A -1, dated 5th January, 1958, being registration copy of the partition deed. The suit properties were allotted to the share of the plaintiff and the first defendant jointly. The plaintiff's claim to partition of the properties was met by the first defendant with denial of the family arrangement. The plea of the first defendant was that, in an oral partition of 1956, the 1/5th share in question was allotted to her and not, to the plaintiff and her jointly. She pleaded that her signature to the partition deed Exhibit A -1 was obtained by misrepresentation and set up the settlement deed she had executed in favour of the second defendant vesting him with the title of the properties. The first defendant disclaimed all her interests in the suit properties after execution of the settlement deed, and, the second defendant, in his written statement, claimed that as and from 5th November, 1956, he became the owner of the suit properties and was in possession of the same. In addition, was put forward the plea that the plaintiff's claim had been found against after contest in the suit, Original Suit No. 94 of 1962, on the file of the District Munsif's Court, Melur, and that barred the retrial of the related issues. The two substantial questions for consideration by the Courts below were the truth and validity of the family settlement and the plea of res judicata. The Courts below, on ample and substantial evidence, find that, in settlement of dispute between the widows in respect of their rights in the properties and to avoid future wasteful litigation, the family arrangement as claimed by the plaintiff must have come into existence allotting a half share in the suit properties to the plaintiff also. The trial Court holds that it has been satisfactorily established that there was an oral partition in or about 1955, in which the plaintiff's right to a half share in the suit properties was recognised, the first defendant being consenting party thereto, that it is only this right which was subsequently confirmed under the original of Exhibit A -1 in 1958, and that the first defendant was consenting party to the said document. The appellate Court has confirmed this finding and the same has necessarily to stand in second appeal.

(2.) IT was strenuously contended before me for the defendants that the plaintiff had. no independent title of her own in respect of the properties of the family to form the basis for a valid family settlement. It was urged that a mere concession or admission by the first defendant of a share would not vest the plaintiff with title to a half share in the properties, oven if the partition deed Exhibit A -1 is accepted as true. The argument ignores the principles on which a family arrangement is upheld by Courts. Once it is found that a family arrangement has been entered into bona fide between members of a family, Courts would try to sustain it on the broadest considerations of family peace : and security. As pointed out by the Supreme Court in Pullaiah v. Narasimham, AIR 1966 SC 1836, family arrangements are governed by principles which are; not applicable to dealings between strangers. Therein, Subba Rao, J. (as he then was) speaking for the Court observed: Briefly stated, though conflict of legal claims in present or in future is generally a condition for the validity of a family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such an arrangement than to avoid it. In Ram Charan v. Girija Nandini, 1965 3 SCR 841, it is said: Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word ' family ' in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. In Ramgouda Annagouda's case , of the three parties to the settlement of a dispute concerning the property of a deceased person one was his widow, another her brother and the third her son -in -law. The two latter could not, under the Hindu Law, be regarded as the heirs of the deceased. Yet, bearing in mind, their near relationship to the widow the settlement of the dispute was very properly regarded as a settlement of a family dispute. The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. In the present case, true, the plaintiff had no interest in the joint family properties except her claim to maintenance and residence, etc. recognised by the Hindu law and. the first defendant had the legal right to claim the share of her husband. The Courts below find that in this case there was in existence conflicting claim by the first plaintiff, the mother -in -law against the first defendant, the daughter -in -law, and that there was every indication that the right of the plaintiff was agitated and disputed. The plaintiff did have a claim on the joint family estate, though she had no legal claims to share the properties, and the members of the family, to maintain peace and harmony in the family can certainly bring about a valid arrangement in terms of Exhibit A -1. The Courts below were, in the circumstances, justified in upholding the plaintiff's claim to partition, subject to the plea of res judicata.

(3.) THE defence of res judicata which has been accepted by the Courts below ending in the dismissal of the suit arises in this way. The plaintiff executed a mortgage deed in favour of her son -in -law Arumugham Servai on 24th September, 1956 over the suit properties securing a sum of Rs. 3,750 as a family debt due for the 1/5th share of her husband's branch. The second defendant did not join in the mortgage and the mortgagee filed the suit, Original Suit No. 94 of 1062, on 9th April, 1962 impleading therein as party defendants the present plaintiff and the present first defendant. In that suit the present plaintiff as first defendant remained absent and was set ex parts. But she gave evidence as P.W. 1. The present first defendant as second defendant in that suit questioned not only the passing of consideration for the mortgage but also denied any partition in the family or division of debts before 5th January, 1958. She pleaded that, on the death of her husband, she alone became a sharer in the family properties and in the partition on 5th January, 1958 the properties were allotted to her only and the present plaintiff's name fraudulently introduced in the partition deed. The written statement, no doubt, referred to the fact that the partition deed showed a sum of Rs. 3,970 as payable to the mortgagee Arumugham Servai, but was qualified by the statement that the amount had subsequently been paid. The trial Court held in that case that by no stretch of imagination could the present plaintiff acquire any valid title to any portion of the suit properties by virtue of the partition deed alone, so as to clothe her with proprietary right to deal with the properties. It found that the present plaintiff had no title whatsoever to the suit properties to hypothecate the same. On the findings, a personal decree was passed against the present plaintiff and the suit as against the present first defendant was dismissed with costs. It was held that the present first defendant was not a necessary party to the suit. On appeal by the mortgagee, the judgment and decree of the trial Court were confirmed. On the question as to whether the present first defendant was a necessary party, the appellate Court held, that, having regard to the claim made by the plaintiff in that suit, the present first defendant was a necessary party to the suit. The plaintiff in that suit had prayed for a decree binding on the present first defendant, contending that the mortgage was in discharge of family debts. Exhibits B -2 to B -6 are the copies of the plaint judgments and decrees in the suit, Original Suit No. 94 of 1962.