KUSUM GOENKA Vs. NATHMAL GOENKA

JUDGEMENT

(1.) THIS is an order on the petition numbered as I.A. No. 2349 of 2004 filed under Order XXIIl, Rule 3 of Code of Civil Procedure (In short CPC) on behalf of respondents No. 1 to 4, 6, 7 and 11 for passing compromise decree in terms of compromise fully detailed in the petition and making the compromise petition and sketch map annexed to the compromise petition as part of compromise decree. I.A. No. 2347 of 2004 has been filed by respondent No. 3, father of respondents No. 4 and 5, under Order XXXII, rule 7 of CPC for leave to enter into compromise on behalf of his minor sons, respondents No. 4 and 5. I.A. No. 2348 of 2004 has been filed on behalf of respondent No. 7 under Order XXXII, Rule 7 of CPC for granting him permission to enter into the compromise on behalf of his minor son, respondent No. 11. Appellants have filed a rejoinder and a supplementary rejoinder to the compromise petition filed by respondents No. 1 to 4, 6, 7 and 11 for rejecting the compromise petition. By filing I.A. No. 2441 of 2004 under Section 151 of CPC, appellants have sought some correction in their rejoinder filed on 8.4.2004. By filing I.A. No. 3019. of 2004 under Order XXXII, Rule 12 of CPC, respondent No. 9 and by filing I.A. No. 3020 of 2004, respondent No. 10, under Order XXXII, Rule 12. of CPC, have prayed for allowing these respondents to appear as major and their guardian Kusum Goenka, appellant No. 1(a) may be discharged.

(2.) THE brief facts of the case are that respondent No. 3 filed a partition suit against respondents No. 1 and 2 and others claiming his share in the suit property which, according to him, was joint ancestral property. Respondents No. 1 and 2 are parents of respondent No. 3 and grandfather and grandmother of respondents No. 4 and 5. In that suit, Sushil Kumar Goenka, who was the original appellant and on whose death, name of his wife Kusum Goenka has been substituted as appellant in this appeal, was defendant No. 4 and he appeared and filed written statement claiming that partition had already taken place and he was allotted share, specific details of which he gave in his written statement, The plaint of the partition suit was rejected under Order VII, Rule 11 of CPC after hearing on a petition filed by respondent No. 1. Against this order, Sushil Kumar Goenka, who was defendant No. 4, preferred this appeal and, as stated above, during the pendency of this appeal, he died and name of his wife has been substituted in his place.

(3.) THE case of respondents, who have entered into the compromise, is that in compromise, considering the fact that parties have agreed for their specific shares in the suit property which is a house and in the sketch map, shares of all the parties in the compromise petition have been shown separately and although the suit property is self acquired property of respondent No. 1 but the house is in dilapidated condition and it requires repairs and respondent No. 1, on account of his old age, is not in a position to get the house repaired, therefore, he has distributed the shares in the suit house to his sons leaving the portion which was claimed by original appellant, who was defendant No. 4 before the Court below. The lower Court records have been received and from the written statement of defendant No. 4 filed in partition suit No. 316 of 1994, I find that no doubt he took the plea that there was partition in the joint family in the year, 1992 and separation in mess, business and properties took place and he was allotted one room with small verandah from north west and he had two rooms in the first floor. In the compromise petition, the sketch map, which has been annexed to the compromise petition , shows that no doubt north west corner portion has been left over but then besides this portion, one room on the ground floor in south west corner and another room on top of it on first floor have been left out for appellant. According to respondents, who have filed compromise petition, the aforesaid portions of the suit house have been left out for appellant because these portions were claimed by appellant on the basis of previous partition and since they are not touching these portions and have made the remaining portion of the house on which appellant has no claim the subject matter of compromise. Notwithstanding the facts that all parties of this appeal have not joined the compromise petition rather appellant has put objection on the compromise petition, the decision report in AIR 2003 Supreme Court 1880 was in respect of matter under Order XX, Rule 18 of CPC in which respondent No. 7 had not appeared and appeal was finally dismissed by Supreme Court, the objection of appellant that her sons, respondents No. 9. and 10 were parties in the suit as minors and no written statement on their behalf was filed and their case was not considered, while allocating the shares of different parties in the compromise, measurement has not been properly held, and left over portion of appellants has been deliberately chosen in order to put inconvenience to appellant who is a widow, I find that the compromise petition itself shows that the portions, which are said to have been left out in the sketch map of compromise petition for appellant because appellant before the lower Court had claimed these portions is not the correct statement on behalf of respondents who have joined in compromise because, as stated earlier, before the Court below, the original appellant had claimed two rooms on the first floor of the house besides the north western portion but in the compromise petition, one room on the ground floor on south east corner and other room on the top of it on first floor have been shown for appellants. For this reason and also for the reason that this appeal is in respect of partition of a suit house between the father, his sons and grandsons and all parties have not joined the compromise petition rather it has been objected to by the appellants, I find no merit in the prayer of respondents No. 1 to 7 and 11. Their prayer for accepting the compromise and passing the decree in terms of compromise is rejected. However, compromise petition may be kept on record which may be considered at the time of final hearing of this appeal, if the parties so desire.