S A ANANTANARAYANA IYER Vs. SAVITHRI AMMAL

JUDGEMENT

(1.) The suit out of which this second appeal arises was instituted on a pro-note executed in favour of the plaintiff s husband by the first defendant on behalf of himself and as guardian of the second defendant, who is his natural son given away in adoption to a brother of his. There were four brothers in an undivided Hindu family, namely, the plaintiff s husband Aiyasawmi Iyer, the first defendant, the second defendant s adoptive father and one Subramania Iyer. Disputes arose between them in connection with the partition of their family property. Aiyasawmi Iyer, the plaintiff s husband, was burdened with 6 daughters, only two of whom had been given away in marriage. Several daughters of some of the other brothers had been married at the expense of the family. Aiyasawmi Iyer made a claim that he was entitled to have an allotment towards the expenses of the marriage of his other daughters. The other brothers in settlement of this claim agreed to pay him Rs. 5,000. This agreement is one of the stipulations contained in the partition Karar (Exhibit C) dated the 5th September 1901. According to Exhibit C they were bound to make the payment within three months, by which time apparently the parties intended the partition would be completed. Lists of properties to be allotted to each of the co-parceners were drawn up on the 11th January 1902. As payment of the Rs. 5,000 promised had not been made to the plaintiff, two pro-notes were executed for the amount-one of them (Exhibit A) for Rs. 3,333 5-4, and the other, by Subramania Iyer, for the balance, on 10th January 1902. The lower courts have held the plaintiff entitled to a decree for the amount due on the pro-note (Exhibit A). The defendants ,object to the decree on three grounds : (1) that there was no consideration in law for the promise to pay Rs. 5,000 ; (2) that the promise was not of such a character as would be binding on the minor second defendant when made by his guardian the 1st defendant, and (3) that the suit is barred by Section 43, C.P.C.

(2.) The first contention may be disposed of in a few words. The appellant s argument is the agreement to pay Rs. 5,000 was not one of the terms of the agreement between the parties for the division of the family properties but an independent promise; that there was no obligation under the Hindu law on Aiyasawmi s brothers to contribute towards the expenses of his daughters marriage and that there was therefore no legal consideration to support the promise. We are entirely unable to accede to this argument. Paragraph 13 of Exhibit C says: "As it has been settled that for the expenses of marriage, etc., that have to be celebrated for the daughters of Aiyasawmi Iyer one of us the other three co-parceners shall pay Rs. 5,000 in a term of three months from now, the said sum of Rs. 5,000 shall be accordingly paid off in the aforesaid term." The natural construction of the clause is that the parties agree under the instrument, Exhibit C, to pay the sum, but assuming that it had been previously settled that Rs. 5,000 should be paid to Aiyasawmi Iyer that fact would certainly make no difference for the effect of the clause is to make the previous agreement about the payment of Rs. 5,000 part of the agreement of partition which the parties were at perfect liberty to do. Mr. Rangachari attempted to perform the impossible feat of separating the promise contained in Clause 13 from the other terms of Exhibit C and he would regard the statement in paragraph 13 as a mere recital of an independent promise even if the promise was made at the same time as the other terms in Exhibit C were agreed to. He contends that the plaintiff himself so treated the matter in the plaint, but we can find nothing in the plaint to support the argument. He also relies on a sentence in Exhibit B, a letter written by the first defendant and Subramania Iyer on the same day as they executed the pro-notes, in which they say: " Even though other matters relating to partition among us may not be settled, we shall pay off the said amount without raising any objection." But this does not show that the pro-note was a transaction independent of the agreement of partition. The object of the latter was merely to prevent the executants of the property, in case litigation should ensue with regard to the enforcement of the agreement of partition, from resisting the payment of the amount of the pro-notes until the other terms of the partition agreement were also fulfilled by the various parties thereto. In other words, the object was to prevent them from raising the plea that no term of Exhibit C could be enforced prior to the fulfilment of the other terms. This does not show that the promise was not to be enforced as one of the terms of Exhibit C. It is not contended that the defence of absence of consideration could be set up if the promise be regarded as one of the terms of the contract of partition as Aiyasawmy Iyer s agreement to the other terms of the contract would then be sufficient consideration.

(3.) With regard to the second contention that the first defendant had no right to bind the minor second defendant by such a promise, the argument is that, according to Hindu law, there is no obligation on the part of co-parceners to provide at a partition for the marriages of the daughters of one of them out of the general family fund;, and that it was therefore beyond the powers of the first defendant, as a guardian, to bind his ward for a purpose which created no legal obligation on the ward. But it is clear that Aiyasawmi made a claim that he was legally entitled to a provision for his daughters marriages. Three daughters of the 1st defendant had been married at the expense of the family estate and the only daughter of Subramania Iyer had been married and provided for out of joint family funds. There is no reason for supposing that Aiyasawmi Iyer did not believe that he had ground for making the claim or that the 1st defendant did not believe that there was some ground for the claim. Nor can we assume that the claim was altogether unfounded according to Hindu law although the plaintiff s pleader in the court of first instance seems to have conceded that the claim could not be enforced by a court of law. Further it appears from paragraph 12 of the Subordinate Judge s judgment that there were other matters in dispute between Aiyasawmi Iyer and his brothers. All of them were settled by Exhibit C, and it is impossible to separate the promise contained in paragraph 13 from the other terms of exhibit C and to question its validity by a consideration merely of the abstract legal question which is raised to resist the promise. We must uphold it as one of the terms of a bona fide compromise constituting a settlement between the members of the family.