KRISHNASWAMY ASARI Vs. MUTHULAKSHMI AMMAL

JUDGEMENT

(1.) Defendants 1 and 2 are the appellants. This appeal arises out of a suit filed to set aside a decree passed by consent and for partition of the suit property and for half share in the property. The plaintiff and defendant 2 are the daughters of one Mookan Asari who left a widow named Chinnammal. The plaintiff's case is that the decree in O.S. No. 1264 of 1915 on the file of the District Munsif's Court of Kulitalai which was a decree passed on a compromise entered into between Chinnammal and defendants 1 and 2 and the present plaintiff is not binding on her; that Chinnammal had only a widow's estate in the suit lands which were the property of Mookan Asari and that the plaintiff and defendant 2 are the daughters entitled to equal shares. The District Munsif held that there was no fraud so far as the decree was concerned and that it was binding on the plaintiff and dismissed the plaintiff's claim for one half of the property. On appeal the Subordinate Judge was of opinion that the compromise decree was obtained by fraud and gave her a decree for one half of the properties on the ground that she is entitled to one half as the daughter of Mookan Asari. He was also of opinion that the compromise in the previous suit was only in respect of a spes successionis and would not bind the plaintiff.

(2.) The suit O.S. 1264 of 1915 arose in this way. Chinnammal in 1910 executed a deed of gift, Ex. B, whereby she gave these properties to her daughter, defendant 2. At that time the present plaintiff was a widow and in order to provide for her, Chinnammal got a othi for Rs. 200 in her favour. In 1915 she seems to have changed her mind as regards what her daughter should get; she probably thought that she gave more to one daughter than to another and she filed a suit O.S. 1264 of 1915 to set aside the deed of gift. The suit was pending from 1915 to 1917 and in 1917 the suit was compromised. The parties to that suit were the mother of the present plaintiff, the defendant 2 in this suit and the husband of defendant 2, the first defendant. Various issues were raised in the suit and it is not necessary to consider them. Ex. D, a joint statement, was put in by the mother and the daughter to the effect that the gift and the othi should be cancelled and that items 1 and 2 should be taken by the defendants absolutely and that items 3 and 4 should be enjoyed by the mother and after her death 2/3 should be given to the defendants in this suit and 1/3 to her other daughter the present plaintiff, in whose favour the othi was taken and cancelled. It appears that; after this agreement was come to, the present plaintiff was made a party to that suit and Ex. B, a statement, was taken from her by the District Munsif where she said that she agreed to be joined as defendant and that a decree can be passed in terms of Ex. D which she said was read to her. The statement which she made was read to her in Court and she must have known what she was stating and as regards Ex. D, which was previously read to her, she said that she had it read to her before. The fraud alleged is that it was represented, to her that Ex. B was a statement whereby she was to get half of those properties and her case is that defendants 1 and 2 and P.W. 2 made that representation to her and that she, believing in that representation admitted the razinama in pursuance of which the compromise decree was passed. The District Munsif found that the allegations were false, that there was no fraud practised upon her and confirmed the arrangement under Ex. D, The Subordinate Judge was of opinion that her case, as laid in the plaint, is substantially true; that she was told that she was to get one third of the properties under the compromise and acting on the representation of P.W. 2 she signed the razinamah. He says in para. 12 of his judgment: P.W. 2 Kamaswami Asari and the plaintiff are no doubt lying when they say that it was. represented to them that the razinamah was to the effect that plaintiff would have a half share in all the properties after Chinnammal's death. But it is equally certain that what was represented to plaintiff was that she would get 1/3 share in all the four items after Chinnammal's death and that it was only under that belief that she affixed her mark to the original oil Ex. B.

(3.) This finding makes it clear that she would have consented to sign Ex. B, if it had stated that she would get 1/3 of the entire property. It is argued by the appellant's counsel that fraud as alleged has not been proved and that the plaintiff's suit should have been dismissed; and that it is not open to the Subordinate-Judge to take the evidence of D. Ws. 2. and 4 and construct a case of fraud on that evidence which is at material variance with the evidence of the plaintiff as to the nature of the fraud perpetrated.