AMARAVATHAMMA Vs. CHINNA VENKAT REDDI

JUDGEMENT

(1.) The petitioner is the plaintiff in O.S. No. 53 of 1940, which was a suit for partition instituted in the Subordinate Judge's Court of Chittoor. The petitioner is the widow of one Anjaneyalu Reddi. She claimed one-third share of the joint family properties against her father-in-law the first defendant, the second defendant who was her husband's minor brother and the third defendant, the mother of the first defendant. On 5 August, 1940, a compromise decree was passed but the second defendant being a minor the Court sanctioned the compromise. It was found later that the required certificate by the advocate as to the reasonableness of the compromise was not filed. A suit was filed on behalf of the second defendant by his next friend for setting aside the compromise decree which is O.S. No. 44 of 1942 on the file of the same Court. In the plaint in that suit the present second defendant prayed for a declaration that the compromise decree in O.S. No. 53 of 1940 was invalid, inoperative and void and not binding on the plaintiff or on his interest in the joint family properties and for an injunction restraining the second defendant from interfering with the plaintiff's possession and enjoyment of the said properties, for declaring the second defendant's right to a half share to the immoveable properties and for division of the same by metes and bounds and for other reliefs. In the plaint the second defendant alleged that the decree was not binding on him and moreover the plaintiff in O.S. No. 53 of 1940 was given a share to which she was not entitled by virtue of the Hindu Women's Rights to Property Act. To this plaint the plaintiff as second defendant filed a written statement stating among others that the insurance policy amount claimed by the second defendant in the suit was the separate property of her husband and also claiming that the properties conveyed under the settlement deed were the self-acquired and separate properties of her husband besides other contentions. Issues were framed raising besides the question as to the? Validity and binding nature of the compromise decree, other questions as to what are the family properties, moveable and immoveable, to be divided, and what the plaintiff's share therein was and also an issue as to the nature of the properties conveyed under the settlement deed. A preliminary decree was passed in the said suit, O.S. No. 44 of 1942, declaring that the compromise decree in, O.S. No. 53 of 1940 on the file of that Court was not binding on the plaintiff and that the parties should be restored to their status quo ante as it stood before the said compromise decree; that the second defendant and his father were each entitled to a half-share in the joint family agricultural properties; that the plaintiff was entitled to a one-third share in the joint family moveable and immoveable properties other than agricultural lands and that the plaintiff was solely entitled to the insurance amount got under her husband's life insurance policy and that the properties conveyed under Ex. P-2, the settlement deed, were the private properties of Anjaneya Reddi and not of the joint family.

(2.) The plaintiff applied in I.A. No. 95 of 1945 filed in the said suit O.S. No. 44 of 1942 for passing a final decree in respect of the properties described in the schedule to that petition, for a division into three shares as per directions in the preliminary decree and for the appointment of a commissioner, if necessary, to make the division either in specie or otherwise. The second defendant opposed the said application and in his counter-affidavit he stated that it was not open to the plaintiff to ask for inclusion in the final decree new moveables mentioned in the schedule to the application which were not the subject-matter of the suit or of the preliminary decree. On that an order was passed dismissing the petition, the Court observing that most of the properties sought to be partitioned were not included in the suit and that she has. to seek her remedies otherwise and that she cannot be allowed to agitate the matter here after once the preliminary decree had been passed.

(3.) Soon after, the order in I.A. No. 95 of 1945, the plaintiff filed I.A. No. 367 of 1945 in O.S. No. 53 of 1940 for an order to restore the suit O.S. No. 53 of 1940 to file and proceed to try the same on merits and dispose it off according to law. In the affidavit she stated that she is entitled to such an order by reason of the clause in the preliminary decree in O.S. No. 44 of 1942, that the compromise decree in O.S. No. 53 of 1940 was not binding and that the parties should be restored to status quo ante and on the observations of the lower Court in the order in her application for passing a final decree that she might seek other remedies in respect of the properties which were not mentioned in the plaint or in the preliminary decree. The application was opposed on the ground that there was no provision of law under which she could ask that the suit O.S. No. 5? of 1940 could be restored to file and tried afresh. The lower Court found in favour of the respondent that such an application was not maintainable and the present petitioner was at liberty to seek such proper and legal remedies as are open to her to get all the properties of the joint family divided if they were really left out in the prior partition.