Madras High Court
Muthusamy Gounder vs Janakiraman (Insane Person), S/O ... on 20 June, 1990
Equivalent citations: (1991)2MLJ516
ORDER Srinivasan, J.
1. For the sake of convenience, I am adopting the rank of the parties as in the main appeal. The appellant was the first defendant in the suit out of which the appeal has arisen. The first respondent was the plaintiff and respondents 2 and 3 were defendants 2 and 3.
2. The suit relates to three Schedules of properties. A Schedule comprises of two items. B Schedule relates to certain houses and C. Schedule to certain lands. The first respondent prayed for a declaration of his title over the A Schedule properties and for delivery of possession of item No. 1 thereof and for injunction restraining the appellant from interfering with his possession and enjoyment of item No. 2 thereof. The prayer with reference to B Schedule was for a division of the same into nine equal shares and for allotment of four shares to the first respondent. With reference to the C Schedule, the prayer was for partition and separate allotment of 1/4th share. There was also a prayer for mesne profits with reference to A Schedule and C Schedule properties. The first respondent, the appellant and the third respondent are brothers. The first respondent was described as an insane person and the suit was instituted by his wife as next friend. The case of the first respondent was that the A Schedule properties were acquired by his father from out of the income from the exclusive properties belonging to the first respondent and he was managing the same as his guardian. According to the first respondent, though the properties were purchased in the name of the father, they belonged exclusively to the first respondent and the father had no right to bequeath the same in favour of the appellant under his will dated 15.12.1983. With reference to B Schedule properties, the first respondent claimed that he was entitled in his own right to 1/3rd share as a member of the joint family and to another 1/9th share on the death of the father, as according to him, the will dated 15.12.1983 should be completely ignored. With reference to C Schedule properties which were the exclusive properties of the father, the first respondent claimed that it devolved on all the four children on the death of the father and thus, he was entitled to 1/4th share.
3. While the suit was opposed by the appellant and the third respondent, the second respondent made an endorsement on the plaint submitting to a decree as prayed for. The appellant contended that the first respondent was not insane and he was capable of looking after his own affairs and the suit should be dismissed as not maintainable on that ground. It was also the contention of the appellant that the will dated 15.12.1983 executed by the father was genuine and valid and under the said will, the entire A Schedule properties have been bequeathed to him. With reference to B Schedule properties, it was the specific case that the father's 1/3rd share passed on to him under the will while the first respondent and the third respondent were entitled to 1/3rd share each. With reference to C Schedule, it was contended by him that he got the entirety of it under the will and the first respondent had no share therein.
4. The third respondent filed a separate written statement. He also raised the contention that the plaintiff was not insane and that the suit was not maintainable. With reference to the will of the father he admitted the genuineness and the validity of the same and did not make any claim to either of the items in the A Schedule. With reference to B Schedule properties, he reiterated the contention put forward by the appellant that himself, the first respondent and the appellant were each entitled to 1/3rd share. He prayed for a decree with reference to his share in the B Schedule properties. However, he did not pay any court-fee for effecting a division and allotting 1/3rd share to him. With reference to C Schedule, he did not make any claim at all.
5. The trial court held that the first respondent was an insane person incapable of taking care of his own affairs. It was held that the purchase of A Schedule properties was with the income derived from the properties of the first respondent and they were intended only for the benefit of the first respondent. While the will was held to be genuine, it was held that it was inoperative with reference to A Schedule properties. Consequently, a decree was granted in favour of the first respondent as prayed for with reference to Schedule A properties and for 1/3rd share in the B Schedule properties. A decree for mesne profits was granted with reference to item No. 1 of A Schedule. In other respects, the suit was dismissed.
6. The appeal has been preferred with reference to Schedule A properties only. There is no appeal with respect to Schedules B and C.
7. The third respondent filed a memo of cross-objections after a delay of 300 days; but the delay has been condoned by this Court. In the memorandum of Cross-objections, the grounds were directed only against the finding of the court below that the plaintiff was an insane person.
8. The appellant and the first respondent have entered into a compromise. C.M.P. No. 6849 of 1990 is to grant leave to the wife and next friend of the first respondent to enter into a compromise. C.M.P. No. 6848 of 1990 is for recording the compromise. The third respondent has filed C.M.P. No. 7492 of 1990 for permission to raise additional grounds in the memorandum of cross-objections and C.M.P. No. 7493 of 1990 for transposing him as the appellant and the appellant as a respondent. The third respondent opposes the recording of the compromise between the appellant and the first respondent.
9. The effect of the compromise between the appellant and the first respondent would be to confirm the decree of the trial court in so far as it relates to A Schedule properties and the first respondent giving up his decree for mesne profits granted by the trial court. With reference to B Schedule properties, the appellant has agreed to take 2/3rd share in the house in one village viz., Kambalapatti village and the first respondent has agreed to take 2/3rd share in the house in Angalakurichi village. The compromise leaves intact the 1/3rd share belonging to the third respondent in B Schedule properties. In other words, while the appellant abandons his claim to A Schedule properties, the first respondent as quid pro quo abandons his claimed for mesne profits.
10. The contention of the third respondent is that the compromise is totally invalid as he is not a party thereto and in a partition action, if some of the parties enter into a compromise, it is not only invalid against the persons who have not joined it, but also void and the court should not record such a compromise. Learned Counsel for the third respondent cited the judgment of Venkatasubba Rao, J. in C. Thiruvengada Mudaliar v. C. Thangavelu Mudaliar A.I.R. 1928 Mad. 594. The following passage is referred to by learned Counsel:
Finally Mr. Anandalwan says that in law a compromise of a partition suit is ineffectual unless every party to the action joins in it. He has cited Nityamoni Dasi v. Gokul Chandra (1911) 13 C.L.J. 16 : 9 I.C. 210, Gobind Chandra v. Bhagubat Sardar (1915) 27 I.C. 242 and Taraprasanna Sarkar v. Kalika Mohan Sarkar A.I.R. 1924 Cal. 80, but these cases do not even touch the point. It is undoubtedly true that in some cases there may not be a valid and lawful compromise unless all the parties join in effecting it; but each case must depend upon its own facts. I shall illustrate my position by taking two or three examples. Suppose A, B and C, are members of a joint family. If the compromise is entered into between A and B under which A gets a half, but as C is not a party to the compromise A gets against him only a third, it would be impossible to recognize such a compromise. Again suppose B gives up to A under the compromise some specific valuable items of property. It would be open to C, not being a party to the compromise, to urge that he would not agree to those items being taken by A. In such a case it would be futile to ask the court to enforce the partial compromise. Again, I may vary the illustration by supposing that B admits some items to be joint family properties and not on that footing enters into a compromise with A. C, who is not a party to the compromise, contends that those items are his self-acquisitions. Surely no Court would in such a case recognize and enforce the compromise. The facts of this case are entirely different. The plaintiff, on receiving Rs. 8,000, goes out of the family altogether and the property then belongs to the remaining members, though I need not decide now in what shares they hold it inter se. This contention is, therefore, overruled and I find that a valid and lawful compromise was entered into between the plaintiff on the one hand and defendants 1 to 3 on the other.
Learned Counsel submits that this case would fall under the illustrations given by the learned Judge in the above passage. I do not agree. The facts of this case are entirely different and none of the illustrations given by the learned Judge will apply to this case. The proposition of law stated by the learned Judge is clearly against the third respondent. In this case the third respondent never claimed any interest in A Schedule properties. The third respondent expressly admitted the genuineness and validity of the father's will. Under the said will, A Schedule properties are bequeathed to the appellant. The contest with reference to A Schedule properties was only between the appellant and the first respondent. The compromise between the appellant and the first respondent with reference to A Schedule properties does not fn any manner affect the interests of the third respondent as he claimed a share only in B Schedule properties.
11. It is contended by learned Counsel that the first respondent came to court with the claim that he was entitled to 4/9th share in B Schedule properties and that the third respondent was entitled to another 4/9th share and the second respondent to 1/9th. Learned Counsel submitted that the compromise proceeds as if the appellant, the first respondent and the third respondent were each entitled to 1/3rd share and the third respondent's claim to 4/9th share will certainly be affected by the said compromise. There is no substance in this contention. In fact, the contention overlooks the specific admission in the written statement of the third respondent that he was entitled to 1/3rd share while the appellant and the first respondent were each entitled to 1/3rd share. Having taken a definite stand in the written statement, it is not open to the third respondent to put forward a new claim in this appeal particularly when there is no appeal by the appellant with reference to schedules B and C. Learned Counsel referred to the Judgment of Patna High Court in Mathura Singh and Ors. v. Deodhari Singh and Ors. . It was held in that case that in a suit for partition of joint parties cannot be maintained, and if the compromise is not binding against one of the co-sharers, it would not be binding on those who gave their consent. The proposition has been stated too widely. It should be understood in the context of the facts of that case. That decision will not apply to this case. I agree with the dictum of Venkatasubba Rao, J. in Thiruvengada Mudaliar's case A.I.R. 1929 Mad. 594.
12. The next contention urged by learned Counsel is that there should have been an enquiry under Order 32 of the Code of Civil Procedure as to whether the first defendant is insane or not. According, to him, the court below did not hold any such enquiry. In this connection reliance is placed upon the judgment of a Division Bench of this Court in Rangaswami Reddi v. Gopalswami Reddiar (1978) 2 M.L.J. 564. In that case, a person who had effected several alienations was stated to be insane on the dates of alienations and a suit was filed for setting aside those alienation was stated to be insane on the dates of alienations and a suit was filed for setting aside those alienations. The trial court held that the plaintiff therein was not proved to be of unsound mind on the dates of the various documents or on the date of suit. In the appeal before the Bench, the two questions which were framed whether the appellant was a person of unsound mind on the date of suit so that the suit could be instituted in his name represented by his father as next friend and whether the appellant was of unsound mind on the various dates when the alienations were effected. Holding that there was no evidence to that effect, the Bench pointed out that there was also no enquiry by the trial court on the question of sanity. Reliance was placed upon the order of the trial court permitting the father of the appellant to institute the suit as a guardian of the plaintiff on the footing that he was of unsound mind. The Bench held that the said order would not in any way satisfy the requirements of Order 32, Rule 15 of the Code of Civil Procedure. The facts of that case are entirely different from the facts of this case. In this case, on the evidence on record, the trial court has come to the conclusion that the first respondent has been proved to be of unsound mind. It is only on that finding, the trial court proceeded to hold that his father purchased the properties in Schedule A from out of the income from the separate properties of the first respondent. It is only for the purpose of finding out whether the purchase made by the father in his name was during the period when he was a guardian of the first respondent and whether he was in possession of the income from the properties owned by the first respondent. The question of sanity of the first respondent is relevant only with reference to Schedule A properties. With reference to Schedule B property, it is absolutely irrelevant, as admittedly the properties in Schedule B are joint family properties in which the appellant, the first respondent and the third respondent had 1/3rd share each. The third respondent herein not having claimed any share in the A Schedule properties cannot raise the question that the first respondent was of sound mind and the suit at the instance of his wife as guardian was not maintainable. Moreover, when there is a finding by the trial court on the evidence, the contesting party viz., the appellant, who is the only person interested in the A Schedule properties has given up his claim that the first respondent was of sound mind. It is certainly open to him to withdraw his contest at any time. It is not necessary for this Court to go into the question whether the first respondent was of sound mind or not in view of the withdrawal of the appeal by the appellant and the consequent confirmation of the finding.
13. It is next contended by learned Counsel for the third respondent that there may be a conflict between' the compromise decree and a decree which may be ultimately passed on merits after hearing the third respondent. According to him, while this Court takes the view that the first respondent is of unsound mind by accepting the compromise, it will not be possible for this Court to take a different view when the third respondent argues his cross - objections. That, according to him, deprives him of an opportunity to contest the finding of the trial court. There is no substance in this argument. If this Court accepts the compromise between the appellant and the first respondent, it does not mean that this Court comes to any conclusion of its own on the evidence on record. It merely records that the appellant withdraws his contest and accepts the position of the first respondent as a person of unsound mind. That will not stand in the way of the third respondent arguing on merits in his cross-objections that the first respondent was of sound mind. But, as pointed out by pie already, that question will not arise as the third respondent did not claim any share in the A Schedule properties and the appeal relates only to A Schedule properties.
14. The next contentionof learned Counsel is that under Order 33, Rule 3(b) of the Code of Civil Procedure, no agreement or compromise in a representative suit shall be entered into without the leave of the court expressly recorded in the proceedings. The first respondent has filed C.M.P. No. 6849 of 1990 for granting leave to the next friend to enter into a compromise. All the parties in the appeal have had an opportunity to put forward their respective contentions on the application. Hence, there is no substance in this objection.
15. It is next argued that the decree of the trial court in so far as item No. 2 of A Schedule is concerned would relate only to the superstructure and the site beneath the superstructure is not included in the same. According to the third respondent, he has got a right as a member of the joint family in the site as it belongs to the joint family. There is no merit in this contention as the third respondent did not claim any interest in any of the items of the A Schedule properties. It is not open to him to raise such a contention for the first time in this appeal.
16. It is next argued that the trial court granted a decree for a 1/3rd share in favour of the plaintiff in B Schedule properties and remained silent with regard to the other 2/3rd share. It was submitted that the court below did not decide as to who was entitled to the other 2/3rd share. In those circumstances, according to learned Counsel, it is not open to the appellant and the first respondent to enter into an agreement with regard to specific items in B Schedule properties. This is only an argument in despair. It is very clear from the pleadings as well as the discussion of the question in the judgment of the court below that in B Schedule properties the appellant, the first respondent and the third respondent are each entitled to 1/3rd share. In fact, in paragraph 17 of the written statement of the third respondent he has expressly admitted that the first respondent was entitled to 1/3rd share while the appellant and himself were entitled to 1/3rd share each. A similar plea was taken by the appellant in this appeal also. At no time the third respondent raised any question as to whether anybody else would be entitled to any share in the B Schedule properties. On that footing, the trial court had granted 1/3rd share in favour of the first respondent. As the appellant and the third respondent did not pay any court - fee for their respective shares, no decree was passed by the trial court declaring their shares in the suit property.
17. Lastly, learned Counsel for the third respondent caught hold of a weakest straw and contended that the second respondent, would be entitled to 1/9th share in the B Schedule properties. The second respondent having accepted the claim of the first respondent and submitted to a decree, it is not open for the third respondent to raise a contention on her behalf. Moreover she has not challenged the decree of the trial court.
18. Thus, all the objections raised by learned Counsel for the third respondent are rejected. C.M.P. Nos. 6848 and 6849 of 1990 are ordered. There will be a decree in terms of the compromise in the appeal as between the appellant and the 1st respondent.
19. With reference to C.M.P. Nos. 7492 and 7493 of 1990, there is no justification for permitting the third respondent to raise additional grounds or to transpose himself as an appellant in the appeal. The grounds sought to be raised as additional grounds pertain to A Schedule properties in which the third respondent did not claim any share. Hence, it is not open to him to raise those contentions in this appeal for the first time. The third respondent has deliberately not chosen to challenge the decree granted by the trial court with reference to B Schedule properties. The appeal does not also relate to B and C Schedule properties. In those circumstances, the third respondent cannot seek to transpose himself as an appellant and raise contentions which are not available to him in view of his express pleading in the written statement in the trial court.
20. Consequently, C.M.P. Nos. 7492 and 7493 of 1991 are dismissed. The third respondent shall pay the costs for the first respondent in these C.M.Ps. counsel's fee Rs. 500.