KALIANARAMA AIYAR Vs. SIVARAMA CHETTIAR

JUDGEMENT

(1.) The 3rd defendant s husband, one Ramaswami Chetti, brought a suit in 1907 against defendants Nos. 1 and 2, who were the sons of his nephew, for partition. The 2nd defendant was then a minor. Eventually, Ramaswami Chetti was allowed to withdraw the suit as against the 2nd defendant with liberty to bring another suit and the suit was compromised between him and the 1st defendant, and a decree was passed in terms of the compromise. Under this compromise, the 1st defendant took a certain share of the family property and separated himself from the family. This was on 17th November 1908. In 1912 the 1st defendant sold certain properties which were the subject matter of this suit to the plaintiff, these properties being certain properties which belonged to the family of Ramaswami Chetti and defendants Nos. 1 and 2 but which were alleged in the prior litigation by Ramaswami Chetti to have been dedicated to charity. The question we have to consider now is whether the 1st defendant at the date of sale had any interest in the plaint properties.

(2.) In the prior Original Suit No. 80 of 1907 Ramaswami Chetti expressly mentioned these charity properties in his plaint, but said that, as definite arrangements had been made in the family for their management, it was unnecessary to obtain any relief in respect of them and, therefore, they were not included in the suit. The 1st defendant in his written statement no doubt asked that the plaintiff s suit should be dismissed, but in paragraph 24 he claimed that if there were a partition those charity properties should also be divided, and the 2nd defendant put forward a similar plea. The razinamah does not specifically relate to these charity properties, but we are clear, after a careful consideration of its terras, that they also formed the subject-matter of the compromise. The razinamah begins with the following words: "Whatever may be the claims of us both", and we see from the plaint and written statements in that suit that a claim had been put forward in respect of the charity properties by the defendants, and the plaintiff had pleaded that they were not divisible. The razinamah then goes on to deal in detail with several of the contentions in the 1st defendant s written statement, and in respect of one of them it says in paragraph 6 that the dispute had already been settled, and finally paragraph 7 reads as follows: "That the parties herein...have no right against one another in respect of property." It is clear that there had been no prior settlement between them about the charity properties and it is equally clear that the compromise was in respect of all their claims, and amongst these claims must be included the claim of 1st defendant to share in the charity properties. We are, therefore, of opinion that the charity properties formed part of the subject-matter of the compromise.

(3.) The next contention of the appellant is that, even if the charity properties were included in the compromise, they were not affected by the decree passed thereon, because the properties not forming the subject-matter of the the suit, the compromise decree could not affect them. As these properties were referred to in the plaint as being family properties though not divisible, and in the written statements an allegation was made that they were divisible before giving a decree for partition, it would have been necessary for the Court to decide the question of their partibility and if it found that they were partible, these properties must necessarily have been included in the partition decree. In this respect they undoubtedly formed the subject-matter of the suit. The contention that no stamp duty had been paid specifically in respect of these properties is not of much importance, for even if the decree had been given without stamp duty being paid, it would not invalidate the decree, and we see that in valuing partition suits it has been held by this Court that the valuation is to be according to the amount at which the relief sought is valued in the plaint vide Boganadam Rangiah Chetty v. Boganadam Subramania Chetty 8 Ind. Cas. 512 ; 21 M.L.J. 21 ; (1910) M.W.N. 755 ; 9 M.L.T. 3 In this view of the matter, we must hold that the razinamah decree did deal with the charity properties and consequently it is unnecessary for the respondent to fall back upon the razinamah itself. It is, therefore, unnecessary to decide the objection taken by the appellant that the razinamah, not being registered, cannot have effect as against the immoveable property.