RAMCHANDRA NAIDU Vs. VENGAMA NAIDU

JUDGEMENT

(1.) In O.S. No. 1 of 1889 of the District Court of Trichinopoly a Hindu widow, one Venkalakshmi Ammal, sued her stepsons, Venkatarama Iyer and Ramarathnam Iyer for maintenance, and on September 2, 1890, obtained a decree which applied to the maintenance then due and to future maintenance. The maintenance was made a charge on the family properties. The decree was not expressed in precise terms, but it was held in subsequent execution proceedings that the decree did in fact give a charge on the family properties and this question must be regarded as having been finally decided, On November 13, 1888, Ramarathnam sold his share in 393 acres of the family lands to one Krishna Iyer, who was defendant No. 21 in the widow's suit. On November 27, 1888, Krishna Iyer sold his interest in these properties to Vengama Naidu and Perumal Naidu. Between December 7, 1888, and June 2, 1890, Vengama Naidu and Perumal Naidu under 13 deeds disposed of their interest in the properties to various people. On September 27, 1908, the widow assigned her decree to the plaintiffs in the suit out of which this appeal arises. As assignees of the decree, the plaintiffs instituted proceedings in execution and obtained an order for the sale of Ramarathnam's interest. At the Court auction they purchased Ramarathnam's interest. On September 14, 1915, the plaintiffs filed a suit in the Court of the District Munsif of Kulitalai for partition of the properties and for possession of their half share. The District Munsifs Court had no jurisdiction to try the suit because of its value and the plaint had to be returned for filing in the Court of the Subordinate Judge. This was done and the suit was numbered as O.S. No. 45 of 1917. There were 101 defendants, of whom 98 were sued as alienees under transfer executed after December 7, 1888.

(2.) In 1891 the widow entered into an agreement with Vengama Naidu and Perumal Naidu under which they were to pay her a sum of Rs. 1,400 in satisfaction of her claim for future maintenance against the properties in their hands. Of the Rs. 1,400, a sum of Rs. 1,000 had already been paid. The agreement provided that when the balance of Rs. 400 had been received and the widow had realized the amount representing the arrears of maintenance at the date of the agreement, she was to execute a formal release of the charge created by the decree on Ramarathnam's half share in the family properties. The arrears were not realized and consequently the agreement was renewed in 1903 and again in 1906. The original agreement has not been put in evidence, but the agreements of 1903 and 1908 have been and are marked as Exs. 18 and 18 a, respectively. The agreement of 1903 reads as follows: If according to what you have executed and given you pay with interest the sum of Rs. 400 which is the balance due after deducting the amount of Rs. 1,000 received from you, I shall, as soon as the whole of the decree amount due upto this day is realized, cause the plaintiff in the said suit to execute and deliver a memorandum of release in your favour to the effect that the liability for the decree of the lands purchased by you from Krishna Iyer has been given up. I shall not attach the said lands and proceeds in execution for the amounts due under the said decree.

(3.) This document was signed by one P. Ramaswamy Iyer as the agent of the widow. That he had the authority to sign is not in question. The agreement of 1906 is in similar terms, but instead of the words "as soon as the whole of the decree amount due up to this day is realized we have the words "after the realization of the entire balance of the decree." There can be no doubt that the effect of each of these documents was this: If Vengama Naidu and Perumal Naidu paid the balance of Rs. 400 with interest and the widow was able to realize from other properties the amount due to her as arrears of maintenance at the date of the document she would execute the contemplated release, in the meantime, she would not take steps in execution of the decree against the properties in the possession of Vengama Naidu and Perumal. These agreements were not recorded under the provisions of Order XXI, Rule 2, Civil Procedure Code, and therefore cannot be regarded as adjustments of the decree. On September 17, 1908, that is, two days before the assignment by the widow of her decree in favour of the present plaintiffs, Vengama Naidu instituted O.S. No. 406 of 1908 in the Court of the District Munsif of Kulitalai for a decree for specific performance of the agreement of 1906, the last renewal of the agreement of 1894. On August 14, 1911, the District Munsif dismissed the suit. An appeal followed to the Subordinate Judge of Trichinopoly, who held that the suit was premature and accordingly dismissed the appeal. A second appeal was then filed in this Court. The widow died daring the pendency of the appeal and the present plaintiffs were added as parties. This Court held that the plaintiffs, as assignees of the maintenance decree, were not the legal representatives of the widow and being assignees, an action for specific performance did not lie. This judgment was delivered on March 12, 1915.