Andhra HC (Pre-Telangana)
Chilamkurthi Subbulu vs Katragadda Radha Bai And Ors. on 13 November, 2001
JUDGMENT P.S. Narayana, J.
1. This appeal is filed by the 4th defendant in O.S. No. 64 of 1980 on the file of the Subordinate Judge at Machilipatnam.
2. One Katragadda Gandhi filed O.S. No. 64 of 1980 on the file of Subordinate Judge, Machilipatnam, for the relief of partition and the said Gandhi died and Katragadda Radha Bai and Katragadda Tulasi, wife and daughter were added as legal representatives of the 1st plaintiff as per orders in I.A. No. 181 of 1983 dated 22.4.1983. The said plaintiffs 2 and 3 in O.S. No. 64 of 1980 are respondents 1 and 2 in this appeal. Defendant No. 4 in the said suit is the appellant. Defendants 3 and 4 were added as legal representatives of the 1st defendant as per orders in I.A. No. 1801 of 1980 dated 19.1.1982 and the 5th defendant was added as per orders in I.A. No. 350 of 1982 dated 17.9.1982 and the 6th defendant was added as per orders in I.A. No. 958 of 1986 dated 5.8.1986. The 4th defendant-appellant in the present appeal also had filed a written statement. When she came to know that the other parties were contemplating to have a compromise recorded between themselves, the 4th defendant had filed I.A. No. 51 of 1987 in O.S. No. 64 of 1980 on the file of the Subordinate Judge, Machilipatnam, requesting the Court to transpose her as plaintiff in the suit so as to enable her to contest the matter effectually and settle all the questions involved in the suit. The said application was opposed and ultimately, the same was dismissed by an order dated 24.2.1987 and the said order became final. Subsequent thereto, as revealed from the record, a compromise decree was passed on 24.3.1987 recording the compromise in between plaintiffs 2 and 3 and defendants 2, 3, 5, and 6, and dismissing the suit as against the 4th defendant-appellant herein. Aggrieved by the said judgment and decree, the 4th defendant in the suit had preferred the present appeal.
3. Mr. Kowturu Vinaya Kumar, learned counsel for the appellant, had submitted that the compromise decree passed by the Court below ignoring the claim of the appellant-4th defendant is totally unsustainable in law. The learned counsel also had contended that when a sharer had filed an application to transpose her as the plaintiff to further prosecute the litigation, dismissing the said application also is not sustainable. The learned counsel also had drawn my attention to the grounds of appeal i.e. ground No. 2 and had contended that by virtue of Section 105 of the Code of Civil Procedure (for short 'the Code'), he is entitled to question the order made in I.A. No. 51 of 1987 also in this appeal. The learned counsel also had drawn my attention to the written statement filed by the appellant-4th defendant, especially, paragraphs 6, 7, and 8 of the written statement and had contended that though specifically the Wills dated 23.8.1979 and 9.10.1980 had not been denied, there is a denial of all the documents saying that they are not genuine and they are all spurious documents. The learned counsel also had pointed out that in paragraph 7 of the written statement, there is a specific claim about the share of the 4th defendant-appellant, to which ultimately she is entitled to. The learned counsel had further contended that Clause 13 of the decree passed by the Court below "that the suit against the 4th defendant be and hereby is dismissed" will definitely prejudice the rights of the appellant-4th defendant and hence recording of such compromise, at any rate, cannot be said to be lawful within the meaning of Order 23 Rule 3 of the Code.
4. Mr. Rajasekhar, representing Mr. P.V.R. Sharma, learned counsel for the respondents, had vehemently contended that the compromise recorded will be binding so far as it relates to the parties to the compromise and the same is not binding on the appellant-4th defendant and the 4th defendant is at liberty to institute a fresh suit if she is so advised and can also dispute the validity of the Wills aforesaid. The learned counsel also had drawn my attention to the pleadings of the respective parties and had contended that a vague denial will not amount to denial and the denial should be specific and in the written statement of the appellant-4th defendant, there is no specific denial about the Wills aforesaid and hence the Court below had rightly recorded the compromise and the appellant is no way affected by the compromise since she is at liberty to institute a separate suit for the purpose of agitating her rights in the subject matter of the suit. Learned counsel also had contended that the order refusing transposition of the 4th defendant as plaintiff became final and hence the judgment and decree made by the Court below are in accordance with law and hence the appeal is liable to be dismissed.
5. Heard both sides. The points which arise for consideration in this appeal are:
1. Whether the recording of compromise totally ignoring the appellant-4th defendant can be said to be lawful within the meaning of Order 23 Rule 3 of the Code?
2. Whether the appellant is entitled to question the order made in I.A. No. 51 of 1987 in O.S. No. 64 of 1980 on the file of the Subordinate Judge, Machilipatnam, which became final, in the present appeal?
3. Whether in the facts and circumstances of the case, will it be justified to give opportunity to the appellant-4th defendant to institute a fresh suit?
6. The facts are not in dispute and the relationship between the parties also is not in dispute. It is also not in dispute that the appellant also is entitled to plaint schedule properties in the absence of Wills dated 23.8.1979 and 9.10.1980.
Point No. 1: It is no doubt the contention of the contesting respondents that in the written statement, the appellant-4th defendant had not specifically denied the validity of the Wills. Be that as it may, in paragraph 7 of the written statement, she has taken a specific stand that she is entitled to have her 1/4th share in all the joint family properties equally. Though there is no specific denial, there is a denial of all the documents as not genuine and spurious in paragraph 6 of the written statement. Hence, in such circumstances, totally ignoring the claim of the appellant-4th defendant will be unjustified. It is pertinent to note that the suit is one for partition and the principle of dominus litus in a suit for partition can be applied only to a limited extent since all the parties, who claim the respective share whether arrayed as plaintiffs or defendants, will be in the possession of the plaintiffs only. In such circumstances, it cannot be said that recording of compromise totally ignoring one of the sharers when the dispute is relating to the Wills will amount to causing total prejudice to one of the natural heirs. It is needless to mention that a testamentary succession always is a deviation from the natural course of succession and in such circumstances the courts are expected to be careful and cautious while recording the compromise. In the said circumstances, I have no hesitation to hold that this compromise recorded by the Court below cannot be said to be lawful compromise so far as 4th defendant is concerned within the meaning of Order 23 rule 3 of the Code.
Point No. 2: The appellant-4th defendant had filed an application I.A. No. 51 of 1987 in O.S. No. 64 of 1980 on the file of the Subordinate Judge, Machilipatnam, requesting the Court below to transpose her as plaintiff for the purpose of continuing the litigation and the same was dismissed by an order dated 24.2.1987. Subsequent thereto, in respect of lis between the parties, compromise was arrived at and a compromise decree was passed as already stated supra. Section 105 subsection (1) of the Code specifies:
"Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal."
7. In fact, the learned counsel for the appellant had drawn my attention to the specific ground questioning the validity of the said order. The Court below had made the said order mainly on the ground that the 4th defendant-appellant, in so many terms, had not disputed the Wills in her written statement or at least in the affidavit filed by her. This by itself, in the light of the portions of the pleading of the 4th defendant-appellant specified supra, cannot disentitle her to prosecute the litigation further and get her rights adjudicated on merits in the same suit instead of driving her to file a separate suit. It is, no doubt, true that the willing parties to a litigation can enter into compromise but if the recording of the compromise is detrimental to the interest of the non-willing parties, then the right course will be to proceed to decide the suit as against the parties who are not willing to enter into such a compromise or in suits of this nature i.e. a suit for partition when a natural heir is claiming the relief of transposition in all fairness, it is better to further proceed with the matter. Hence, I am of the opinion that the Court below had erred in dismissing the application of the 4th defendant-appellant seeking the relief of transposition as plaintiff.
Point No. 3: In the light of the facts and circumstances discussed above and in the light of the respective pleadings of the parties and also the nature of the compromise that had been recorded, I am of the considered opinion that a natural heir cannot be driven to institute a separate suit merely because the other heirs had entered into a compromise. In my considered opinion, at the best, it can be only a partial compromise as amongst the members of the family and it will be a total compromise in settlement of all the questions involved in the suit. While recording such partial compromise, I reiterate that the courts are expected to be more cautious and careful, especially, in suits of this nature i.e. suits claiming the relief of partition. Hence, in the facts and circumstances of the case, it will not be justified to drive the appellant-4th defendant to institute a separate suit afresh.
8. For the foregoing reasons recorded above, the judgment and decree, so far it relates to the appellant-4th defendant, are concerned, are hereby set aside and in the facts and circumstances of the case, the matter is remitted back to the Court below for the purpose of enabling the respective parties, who continue to be on record, to agitate their rights in accordance with law.
9. The appeal is allowed to the extent indicated above. However, in the facts and circumstances of the case, no order as to costs. In as much as, now an opportunity is being given to the respective parties after a long lapse of time, in the interests of justice, the Court below is directed to dispose of the suit within a period of one year, preferably, from the date of receipt of a copy of this order.