B SOMAYYA Vs. G VEERRAJU

JUDGEMENT

(1.) THE appellant in this second appeal is the plaintiff in O S. No, 244 of 1959 on the file of the District Munsif's Court, Ramachandhrapuram. THE suit was for a declaration of the plaintiff.s title to the plaint schedule properties and for possession with mesne profits and costs. It is necessary to state the facts that led to this litigation, THE following pedigree shows the relationship of the partics. Gandhi Venkanna (died on 26-7-24) Gandi Venkanna owned about Ac. 32-01 cents of land. He died on 26 7 1924 THE plaintiff is the son of Subbamma, the daughther of Venkanna. Subbamma died when the plaintiff was a mere child and so. he was brought up by his maternal uncles, Kamaiah and Vira Venkanna and also by his maternal grand father, Venkanna. Under Ex. A 1. dt. 3. 1. 42, Kamaiah, the manager of the family at the time and the two other brothers, defendants 1 and 2, who were the maternal uncles of the plaintiff, conveyed to the plaintiff a one-fourth share in the entire joint family properties, THEn, there was a partition between the three brothers and the plaintiff in March 1944 and the suit properties fell to the plaintiff's share. At the time of the execution of Ex. A. 1, it was hoped that the plaintiff would marry Subbayyamma, the daughter of Kamayya; but the plaintiff married another girl. THErefore, he conveyed two acres out of his one-fourth share to Subbayyamma in May 1943. Subsequently, he purchased those two acres for himself from Subbayamma. So, ultimately, the plaintiff was in possession of 1/4th share in the joint family properties, the extent of his share beinfl about 8 acres to which the suit relates. THE present 2nd defendant, Subbaiah, filed O S. No. 95/46 in the Dist Munsif's Court, Rajahmundry. for partition. To that suit, he added the plaintiff as the 8th defendant. By that time, Kimayya died and his sons were defendants 3 to 6 in the present suit and defendants 2 to 5 in that suit. Vira Venkanna, the I st defendant, in this suit was the 1st defendant in that suit. Subbayamma was the 6th defendant. THE 7th defendant was Kamayya's widow, Narayanamma. She was also the guardian of defendants 2 to 5 who were minors at the time. Vira Venkanna's sons, the present defendants 7 to 10 were not eo nomine parties. It may also be mentioned that, at that time defendants 9 and 10 were not born. In that suit, the plaintiff pleaded that the transfer of the property under Ex. A. 1 was valid and binding on the family and that the subsequent partition also was valid and binding He pointed out that, in view of this arrangement, he did not take a share in his natural family. But throughout, he was being brought up in this family at the instance of his maternal grand-father and for all practical purposes, he was treated as a member of the family. This suit was ultimately compromised and a compromise decree was passed on

(2.) 2. 47. By this compromise, the previous partition was affirmed i. e., the plaintiff's title to the suit property was recognised and the plaintiff was allowed to continue in possession and enjoyment as before. The next litigation is the present litigation by the plaintiff on the allegation that the defendants trespassed into the suit property in March 1958. The following points arose for decision in the Courts below : (1) Whether Ex. A 1 will be binding on the family ? On this point, both the Courts below have held that Ex. A. 1 at such will not be binding on the family. (2) Whether the compromise decree is binding upon the defendants ? On this point, the trial court held that the compromise decree is binding on the defendants both as a family settlement or as a compromise of disputed claims. It has to be noted again here that defendant 7 to 10 were not parties to that decree. But their father the 1st defendant, was a party to it. He was the 1st defendant in that suit also and he agreed to the compromise. (3) Whether the plaintiff had perfected his title by adverse possession ? The trial court found that the plaintiff was in joint possession from the date of Ex. A. 1 till the date of partition in 1944 and then in separate and exclusive possession of this suit property ever since till March 1958 when he was dispossessed. Therefore, it held that the plaintiff perfected his title by adverse possession. It found that all those who were parties to the compromise decree are bound by it and that the claim of defendants 7to 10 is barred by limitation. On those findings, the suit was decreed with costs. There is an appeal to the Subordinate Judge's Court, Rajahmundry, by defendants 7 to 10 because obviously the other defendants who were parties to the compromise decree cannot question it. The learned Subordinate Judge held that Ex. A, 1 was void being a gift. He held that there was no bona fide compromise or settlement of disputed claims. He further held that the compromise cannot be styled as a family settlement because the plaintiff was not a member of the family. He also observed that the 1st defendant act id adversely to the interests of the minor sons when entering into the compromise. Therefore, he held that the compromise decree is not binding on defendants 7 to 10, At the same time, he held that the 7th defendant's claim is barred by limitation since his present claim is more than three years after he attained majority. On that finding, he allowed the appeal in part and held that defendants 8, 9 and 10 are entitled to one-fifth of the suit property. Therefore, he modified the decree of the trial court by reducing to l/4th. Hence this Second Appeal is filed by the plaintiff with regard to 1/5th of the suit property in which defendants 8 to 10 are interested. I already stated that Ex, A,1 if it has to be considered alone may not be binding en the family because it may amount to a gift to the stranger to the family, which is void under Hindu law. But I am not able to appreciate the reasoning of the learned Subordinate Judge when he held that the compromise decree is not binding on defendants 7 to 10. There were disputed claims. The plaintiff was contending that Ex. A, 1. was binding for certain reasons. Whether a Court would ultimately hold that the plaintiff was entitled to a share or not, there was undoubtedly the claim and what was more, that claim was recognised and upheld by all his maternal uncles in the year 1944. It must be remembered that all the three maternal uncles were the persons, who executed Ex. A. 1. So. the family was getting on in a peaceful manner till Subbaiah filed O. S, No, 95/46 in'the District Munsif's Court, Rajahmundry. It is difficult to speculate what would have been the result of that suit and it is also not permissible to speculate about that. But they settled the disputes and the compromise decree was passed recognising the right of the plaintiff to the suit property, which fell to his share at the partition of 1944. It cannot be denied that the compromise decree is binding on all the parties thereto. Defendants 7 to 10, no doubt, were not eo nomine parties to it. But surely, the head of their family, Vira Venkanna, the 1st defendant, was a party to the compromise. It is undoubted that a father of the Hindu family, who was also the manager, can enter into a bona fide compromise so as to bind his minor sons even. That proposition cannot at all be disputed. In Mulla's Hindu law., 12th Edition, Paragraph 244, the law is stated thus :