Madras High Court
N.Ar.Thangavelu vs N.Ar.Nagarajan (Died) on 20 September, 2018
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.09.2018
CORAM :
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
C.R.P.(MD)No.2006 of 2016
1.N.AR.Thangavelu
2.T.Thangamani
3.B.Bhuvaneswari Nachiar .. Petitioners/Petitioners/
Defendants 2,6 & 7
vs.
N.AR.Nagarajan (died)
1.Sakunthalai
2.N.Vasantha Rajan
3.N.Rameshwaran .. Respondents/Respondents/
Defendants 1,3,4 &5
4.N.Arumuga Rajan .. 5th Respondent/
Plaintiff
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, against the fair and decreetal order dated
09.02.2016 passed in I.A.No.53 of 2011 in O.S.No.54 of 1999 on
the file of the Sub Court, Sivagangai.
For Petitioner : Mr. S.Natarajan
For Respondents 1 to 3 : Mr.M.S.Balasubramania Iyer
For Respondent No.4 : Mr.AL.Vijey Devaraj
http://www.judis.nic.in
2
ORDER
This Civil Revision Petition is directed against the dismissal of I.A.No.53 of 2011 filed by the revision petitioners herein in respect of the compromise decree dated 24.04.2000 made in O.S.No.54 of 1999 on the file of the Sub Court, Sivagangai. The said suit was filed by one N.Arumuga Rajan, the grandson of one Arumugampillai. He sought the relief of partition and separate possession of his 1/8th share in the suit properties. The revision petitioners herein figured as defendants 2, 6 and 7 in the said suit. The parties to the suit filed a compromise memo on 10.11.1999 and based on the same, a compromise decree was passed on 24.04.2000. It is this compromise decree that is sought to be set aside in I.A.No.53 of 2011 filed by the revision petitioners herein. Of course, the prayer made in the said IA is for varying, modifying, rectifying or setting aside the decree. The respondents 1 to 3 herein filed their counter opposing the prayer made in I.A.No.53 of 2011. The Court below by order, dated 09.02.2016 dismissed the said IA. Aggrieved by the same, this Civil Revision Petition has been filed.
2. Heard the learned counsel appearing for either side. http://www.judis.nic.in 3
3. The learned counsel for the revision petitioners pointed out that the members of the family of Late. Sri. N.Arumugampillai entered into a family arrangement and that the same was reduced into writing on 03.04.1997. Without acting the terms of the said family arrangement, the plaintiff in O.S.No.54 of 1999 proceeded to file the said suit for partition. It is true that the revision petitioners affixed their signatures in the compromise memo dated 10.11.1999. But the revision petitioners would claim that their signatures were obtained under certain vitiating circumstances. They also would claim that they were not present in the Court, when the compromise decree was passed. It is further contended that a compromise decree itself has not been properly drafted as it does not embody the terms of the compromise memo. Only the plaintiff's rights have been declared and a proper decree has not been passed.
4. The learned counsel therefore argued that this Court must hold that the matter is yet to attain finality till date. The learned counsel contended that fraud was played on the revision petitioners and since the compromise was not lawful, the trial court can entertain the application to recall the compromise decree. In this regard he relied on the judgment of the Honourable Supreme http://www.judis.nic.in 4 Court reported in AIR 1993 SC 1139. His other major contention is that any decree obtained by fraud should be treated as invalid and he cited the decision reported in (1994) 1 SCC 1. His core contention is that the parties must respect the sacrosanct nature of the family arrangement and any subsequent decree varying the terms of family arrangement cannot be considered as legal. He also contended that the IA filed by the revision petitioners herein cannot be thrown out on the ground on limitation. He would contend that since the matter itself is yet to attain finality, the question of invoking the rule of limitation will not arise in this case.
5. This court is unable to agree with any of the submissions advanced by the learned counsel for the petitioners. As rightly contended by the learned counsel for the respondents, the present proceedings constitute a gross abuse of legal process. This is evident from several circumstances. It is not as if the revision petitioners are illiterate individuals. They are hailing from a reputed family. They are educated and literate. The signatures attributed to them in the compromise memo is not in dispute. They were represented by the their counsel before the Court below. It is seen that the compromise memo was signed on 10.11.1999 and the compromise decree itself was passed only on 24.04.2000. There is a http://www.judis.nic.in 5 clear gap of more than five months between the date of signing the compromise memo and the date of passing the compromise decree.
6. Merely because the revision petitioners were not present in the Court as claimed by them, that again would not vitiate the passing of the compromise decree. The first revision petitioner was examined by the Court below as PW1 in the enquiry in I.A.No.53 of 2011. His testimony and deposition is enclosed in the typed set of papers. It is seen that he has admitted the signature attributed to him in the compromise memo. But he would make a claim that he affixed the signature only under compulsion. He also would claim that only to set aside the compromise decree that he has filed the present IA.
7. During the course of his cross examination, he admitted having executed Exs.R5 and R6. Those Exs.R5 and R6 are sale deeds executed by the first revision petitioner in favour of the third parties conveying the properties that were allotted to him pursuant to the compromise decree dated 24.04.2000 in O.S.No.54 of 1999. The first revision petitioner also admitted in the cross- examination that in Ex.R5 in the recitals, he has mentioned that the property covered by Ex.R5 was allotted as C-schedule item in http://www.judis.nic.in 6 O.S.No.54 of 1999. He also would further admit that his wife sold away what was allotted to her as C-schedule. She has also referred to the compromise decree in Ex.R6. It is thus clear that the compromise decree was not only accepted but also acted upon by the revision petitioners herein. This is clearly evident by the alienations made by them. As a sample, two sale deeds dated 05.06.2002 and 11.06.2009, namely, Exs.R6 and R5 have been marked during the course of enquiry before the Court below. Thus it is impossible to believe the version of the revision petitioners that they were compelled and coerced into settling the matter by way of compromise.
8. The bar of limitation cannot be ignored. As rightly held by the Court below article 137 of the Limitation Act clearly comes into play. If as claimed by the revision petitioners, there are vitiating circumstances, the revision petitioners should have made it clear as to how long those vitiating circumstances subsisted and when the limitation period would start running. They have not made any such averment in the affidavit filed in support of I.A.No.53 of 2011. On the other hand, the claim of the revision petitioner is that the case on hand cannot be said to be barred by limitation. http://www.judis.nic.in 7
9. This Court cannot agree with the said submission. This Court holds that article 137 of the Limitation Act is clearly applicable. The Compromise decree was passed as early as on 24.04.2000. I.A.No.53 of 2011 was filed only in November, 2010. This long gap between the passing of the compromise decree and the filing of IA also goes to show that the cause projected by the revision petitioners is down right false.
10. The other contention is that the family arrangement cannot varied by a subsequent judicial determination. This Court will have to observe that the family arrangement, which is in the nature of a contract can itself be superseded by a subsequent contract. The decision reported in AIR 1955 SC 162 in the case of Ponnammal vs. R.Srinivasarangan and others, the Hon'ble Apex Court holds that subsequent judicial determination will not affect the validity of the family arrangement entered into earlier. In this case, the compromise decree dated 24.04.2000 cannot be any stretch of limitation to be termed as a judicial determination. It is yet another contract entered into between the parties. Thus an earlier contract can always be superseded by a subsequent agreement. Therefore http://www.judis.nic.in 8 G.R.SWAMINATHAN, J.
PJL looked at from any angle, I find no merit in this Civil Revision Petition. It stands dismissed. No Costs.
20.09.2018 PJL To
1. The Sub Judge, Sivagangai.
2. The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
C.R.P.(MD)No.2006 of 2016 http://www.judis.nic.in