T R GOVINDA CHETTY Vs. RANGAMMAL

JUDGEMENT

(1.) This is an appeal against an order of the learned Judge on the original side granting a review of the judgment and amending the decree. The order appealed against is printed on p. 14 of the printed papers. It runs as follows: 1. That the said decree dated 3 February 1926, be amended by including therein the following clauses, viz,: (a) That defendant 6 is entitled to provision for residence in house and premises No. 41, Badrian Street. (b) That the room marked A in red pencil in the plan attached hereto and situate between the 1 and the 2nd compartments of the said house be allotted for use of defendant 6 as a kitchen, eating room, store room, etc., and that the room marked B in the said plan and situate in front adjoining the street verandah be allotted for living, sleeping, etc. (c) That defendant 6 be also entitled to the use of the common passages, pipes, lavatory, washing places, etc. (d) That defendant 6 shall have no right to let or sub-let the portion allotted to her as aforesaid and that she is allowed to entertain guests or relations in the portion allotted to her so long as he or they do not encroach upon or occupy any other portion of the house.

(2.) I mention this in extenso as a preliminary objection has been raised that no appeal lies from this order. It is conceded that the original decree does not contain these provisions. The plaintiff and defendant 1 are brothers. Defendant 3 is the stepbrother of defendant 1. Defendant 6 is the mother of defendant 3 and stepmother of the plaintiff and defendant 1. The suit was for partition and in the plaint a maintenance of Rs. 35 was offered. Defendants 1 to 5 filed a joint written statement stating that the maintenance ought to be Rs. 50. Defendant 6 filed a written statement adopting the written statement of defendants 1 to 5. When the case came on for trial, the parties wanted to compromise. They adjourned to the Chambers of Srinivasa Iyengar, J., and certain terms were discussed and agreed to. There were other terms which had to be arranged and so the matter was adjourned. But in the Chambers of Srinivasa Iyengar, J., all the parties agreed that defendant 6 should have maintenance at Rs. ,60 a month and residence in house and premises No. 41, Badrian Street, some other matters were left over. Ultimately there was a razinama agreement signed by all the parties including defendant 6. The razinama petition gave maintenance at Us. 60 but there was no provision for residence. This petition was explained to defendant 6 and the other parties by the interpreter of this Court. When the case came on before the Court as some minors were concerned and the consent of the Court was necessary it was mentioned that there was a slight variation in the razinama though the nature of the variation was not stated, and the learned Judge sanctioned the compromise on behalf of the minors and directed a decree to be passed in terms of the razinama. The decree in terms was passed on 3 February 1926.

(3.) On 30 April 1926, an application was made by defendant. 6 to review the compromise decree and to have the decree amended by including therein a provision for the residence of defendant 6 in house No. 41, Badrian Street, Madras, and for staying defendant 1 from ejecting defendant 6 and for fixing the portion in which defendant 6 was to reside. The only affidavit in support of this application was that of defendant 6 in which after stating that there was a compromise at the time of the hearing of the suit she states that one of the terms was that house and ground 41, Badrian Street, Madras, was to be allotted to the share of defendant 1, at a valuation of Rs. 12,000 and that she should have a right of residence in the said house and that she agreed to the compromise since according to it she was entitled to Rs. 60 a month for maintenance and a right of residence. She then says that when she signed the razinama she took it for granted that all the terms agreed to would naturally have found a place in the razinama and so she readily put her signature to the razinama. Para. 6 of the affidavit is as follows: I am now informed and believe the same to be true that the provision for my residence in the family house has been either accidentally or designedly omitted in the razinama though my right of residence was particularly mentioned and provided for at the time of the compromise.