INDIRA BAI PATEL Vs. B A PATEL

JUDGEMENT

(1.) This appeal by the plaintiff is directed against the dismissal of her suit by the Fist Additional Chief Judge, City Civil Court, Hyderabad for cancellation of the compromise decree in O. S. No. 14 of 1961 on the file of the 4th Additional Judge, City Civil Court, Hyderabad; for partition of the plaint A & B schedule immovable properties into two equal shares and for delivery of possession of one such share and for a direction to the defendant to render an account of the profits realised from him from the suit properties from 1958 till the date of delivery of possession of the plaintiffs share ; or in the alternative for enhancement of the maintenance payable by the defendant to the plaintiff from Rs. 65.00 to Rs. 500.00 per month with effect from the date of suit; for allotment of one room in the first floor and three rooms in the ground floor of the plaint B Schedule house to the plaintiff for her separate residence and for payment of Rupees 10,000/- towards arrears of maintenance.

(2.) The defendant B. A. Patel and the late husband of the plaintiff one Manik Rao Patel the sons of Maruthi alia Annaji Sadasiva Patel, constituted a Hindu Co-Parcenary . Their father had settled down at Hyderabad in the year 1914. The defendant was practicing as an advocate in the Civil Courts at Hyderabad till the year 1951 when he was appointed as a District and Sessions Judge by the erstwhile Hyderabad State Government. The plaintiffs husband who studied upto VIII standard , was working as part-time clerk in the library called Marathi Grantha Sangrahalaya at Hyderabad and also doing insurance business as an agent and earning some decent income. The joint family possessed Item 1 to 9 (A Schedule) dry lands situate in Shelgaon and Navkot Wadi villages in the district of Parshani now in the State of Maharastra. It also possessed items 10 & 11 , house properties situate at Parbhani. The plaint B Schedule property was claimed by the plaintiff as joint family property, but the defendant asserts that it is his self acquired property. On 20/08/1944 Manik Rao Patel died undivided leaving behind him his widow , the plaintiff and his only son called Madhukar and the defendant his undivided elder brother. After the death of Manik Rao, the defendant and the members of his family including the plaintiff and her son lived together in the plaint B schedule house situate in Sultan Bazar, Hyderabad till 12-1-1950 when the plaintiffs som Madhukar died at the age of 11 or 12 years. The plaintiff thereafter lived with the members of the defendants family till she filed O. S. 14/1961 for partition of the family properties and for possession of her half share. The suit claim for partition and possession of her share was resisted by the defendant on the ground that she was not entitled to any share in the family properties as her husband and son died as members of an undivided Hindu Coparcenary , except reasonable maintenance. The suit was posted peremptorily to 23/09/1961 for trial. On that day, the parties entered into a compromise whereunder a sum of Rs. 65.00 per month was payable by the defendant to the plaintiff towards her maintenance and two rooms in the plaint B schedule house were allotted for the residence with a charge created on some of the family properties. The present suit was instituted in forma pauperis on 31-10-1964 for cancellation of the compromise decree on the ground that it was vitiated by fraud , undue influence, coercion and misrepresentation; and for partition and possession of her share in the plaint schedule properties ; or in the alternative for enhancement of the maintenance from Rs. 65.00 to Rs. 500.00 per month. The defendant resisted the claim of the plaintiff on the ground that the suit is barred by limitation , that the claim in so far as items 10 and 11 of the plaint A schedule are concerned, is barred under Order 2, Rule 2, Civil P.C. that the compromise decree in O.S. No. 14/1961 is valid and binding on the plaintiff but not vitiated by any fraud , undue influence, coercion or misrepresentation , that there was no severance of status between the plaintiffs son Madhukar and the defendant in 1949-50 before his death and that there is no justification for the enhancement of the maintenance awarded under the compromise.

(3.) The trial Court framed the following 10 issues and an additional issue :- 1. Whether there was severance of status between the defendant and the plaintiffs son , Madhukar, in 1950 as pleaded by the plaintiff ? 2. Whether Items 1 to 9 , 11 and 12 of the plaint A schedule are joint family properties in which the plaintiff is entitled to a share ? 3. Whether the parties are governed by the Mithila School or Mithakshara School of Hindu law ? 4. Whether the compromise decree passed in O. S. No. 14 of 1961 on the file of the 4th Additional Judge , City Civil Court is not binding on the parties as alleged ? 5. Whether the alienation of S. No. 32 was for a family necessity, and if so, has the plaintiff any right of adjustment inter parties ? 6. Whether the suit is not maintainable in view of the provisions of the Hindu Adoptions and Maintenance Act of 1956 ? 7. Whether the valuation given in the plaint is correct ? 8. Whether the suit is within limitation as far as the relief of cancellation of the compromise decree is concerned ? 9. Whether the plaintiff is entitled to any past or further maintenance, and , if so, to what amount ? 10. To what relief ? Additional Issue : Whether the suit claim is barred under Order 2 , Rule 2, Civil P.C. so far as items 10 and 11 of the plaint A schedule are concerned ?