R.Jankiammal vs S.K.Kumaraswamy (D) Thr.Lrs.

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1537 OF 2016

R. JANAKIAMMAL ... APPELLANT

VERSUS

S.K. KUMARASAMY(DECEASED) THROUGH LEGAL REPRESENTATIVES AND OTHERS ... RESPONDENTS

WITH

CIVIL APPEAL NO.1538 OF 2016

S.R. SOMASUNDARAM AND ANOTHER ... APPELLANTS

VERSUS

S.K. KUMARASAMY(DECEASED) THROUGH LEGAL REPRESENTATIVES AND OTHERS ... RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

These two appeals have been filed challenging the

Division Bench judgment dated 23.11.2011 of Madras High

Court dismissing the A.S. No.281 of 2000 and A.S. No.332

of 1999 Signature Not Verified filed by the appellants respectively. The Digitally signed by MEENAKSHI KOHLI Date: 2021.06.30 15:13:48 IST

parties shall be referred to as described in O.S.No.1101 Reason:

of 1987 (S.R. Somasundaram vs. S.K. Kumarasamy). The 2

appellant, R. Janakiammal in C.A.No.1537 of 2016 was

defendant No.7 in O.S.No.1101 of 1987 whereas S.R.

Somasundaram, appellant in C.A.No.1538 of 2016 was the

plaintiff in O.S.No.1101 of 1987. Janakiammal is the

mother of Somasundaram. Relevant facts and events

necessary to decide these two appeals are:

2. The parties came from Pattanam, Coimbatore District,

Tamil Nadu. We may notice the Genealogical Tree of the

family which is to the following effect:

Kandaswami Gounder (died in 1964) | ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­| | | Senniamalai(died) | st nd 1 wife's son 2 wife's sons | ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ | | | Rangasami Kumaraswami D­1 S.K. Chinnaswami D­4 (Died in 1967­ Sundarambal D­2 Smt.C.Kamalgm D­5 Smt. Janakiammal D­7 | | | | | ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ | | | | | | | Shanmugha Somasundaram Saraswathi | | valauyutham Plaintiff D­8 | | D­10 | | | | Kandaavadival D­3 | | ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ | | | C.Senthil Kumaravel Satyavathi Ponmeenakshi D­6 3

3. The plaintiff, S.R. Somasundaram and his mother,

Janakiammal who are the appellants in these two appeals

belong to branch of Rangasamy Gounder whereas other two

branches are of S.K. Kumarasamy,D­1 and S.K.

Chinnasamy,D­4. Three brothers with their father A.V.

Kandasamy Gounder were residing as a joint family in

ancestral house at Sadapalayam Hemlet, Karumathampatti

Village, Palladam Taluka, District Coimbatore. Rangasamy

and others received a land measuring 86.72 acres by

partition deed executed on 27.09.1953 between late A.V.

Kandasamy Gounder and Ponnammal, junior wife of Kandasamy

Gounder, his first wife, Senniamalai, son of Kandasamy

Gounder from first wife, Rangasamy Gounder, S.K.

Kumarasamy, S.K. Chinnasamy, all sons of second wife of

Kandasamy.

4. These appeals are concerned with three branches,

namely, Rangasamy, Kumarasamy and Chinnasamy. In the year

1954­55, three brothers purchased various properties and

started rice mill business called Laxmi Rice Mills and

also started Swamy Textiles in 1976, a match factory, a 4

slate factory, saw mills, timber business and power loom

out of joint family funds. On 07.11.1960 a partition deed

was registered between three brothers with respect to the

properties allotted to them as per registered partition

deed dated 27.09.1953 along with the properties purchased

by three brothers in the ratio of 1/3rd each. Even after

partition, three brothers continued to live under the

same roof and carried on business as partners. In the

year 1963 they purchased housing site by sale deed dated

16.10.1963 in Somanur Hemlet, Village Karumathampatti,

and constructed a house therein and all the three

brothers started living in Somanur house from the year

1964 and carried on their different joint business. On

27.05.1967, Rangasamy Gounder died in a road accident

leaving behind his widow, Janakiammal, two sons, S.R.

Somasundaram, S.R. Shanmugavelayutham and one daughter,

S.Saraswathy. From 1968 to 1978 various properties were

purchased in the name of three branches. The family also

purchased in the year 1972 Tea Estate known as High Field

Estate in the name of defendant Nos.1, 4, 10 and

plaintiff. A Private Limited Company known as Swamy and 5

Swamy Plantations (P) Ltd. was also promoted with family

members being shareholders and Directors.

5. In the year 1975, 50 acres of lands were purchased

in Vedapatti village, in the name of defendant Nos.1, 4,

10 and plaintiff. In the year 1978 a palatial Bungalow

was purchased in Tatabad, Coimbatore. Defendant No.10,

who was Captain in the Indian Army, came back to

Coimbatore after leaving his job to look after the family

business and properties. From the year 1973, he started

looking after the properties at Coonoor. Somasundaram,

the plaintiff started his studies at Coimbatore and

Chennai and after completing his studies came back to

Coimbatore in the year 1979.

6. In Coimbatore one Vasudeva Industries Ltd., which

was in liquidation since 1967 was taken on lease from

official liquidator of Madras High Court by one Shroff,

who along with defendant No.4, S.K. Chinnasamy formed a

partnership firm to run Vasudeva Industries Ltd.

Defendant No.1, S.K. Kumarasamy was appointed as General

Manager to look after the affairs of Vasudeva Industries

Limited. An application was filed in the year 1981 in 6

Company Petition No.39 of 1956. Defendant No.1, S.K.

Kumarasamy filed an affidavit in support of Company

Application No.320 of 1981 praying that liquidation

proceedings be closed. On 30.04.1981, the High Court of

Madras passed order directing convening of a meeting of

the creditors. In the meeting of creditors a draft scheme

submitted was approved on 09.06.1981, Madras High Court

passed an order on 22.01.1982 allowed the application

filed by defendant No.1, permanently stayed the

liquidation proceedings and permitted running of Vasudeva

Industries Ltd. by the Board of Directors. On 03.02.1982

a Resolution was passed to bring the mills under the

control of the Board of Directors, including the

plaintiff, defendant Nos.1, 4 and 10. The name of

Vasudeva Industries Ltd. was changed to Vasudeva Textiles

Mills. In the year 1983 Vasudeva Textiles

Mills( hereinafter referred to as “Mills”) obtained loan

from Punjab National Bank in which personal guarantee was

also given by the plaintiff and defendant No.10, who were

Directors. The plaintiff and defendant No.10 were also in

the year 1984 elected as Managing Directors. The Swamy & 7

Swamy Co. which was earlier running the Mill on lease was

dissolved in the year 1984. The Mills although started

running by the Board of Directors but in the years 1983,

1984 and 1985 accumulated losses were more than the

profit of Mills.

7. On 19.01.1984, C. Senthil Kumaravel, defendant No.6

and son of S.K. Chinnasami, defendant No.4 filed O.S.

No.37 of 1984 praying, inter alia, for partition and

allotment of 1/6th share to him. In O.S.No.37 of 1984

Senthil Kumaravel, the plaintiff came with the case that

the plaintiff and defendant Nos.1, 3,4, 8,9 and 10 were

members of joint family. In O.S.No.37 of 1984,

Janakiammal was impleaded as defendant No.8,

Shanmugavelayutham as defendant No.9, Somasundaram as

defendant No.10 and Saraswathi as defendant No.11. In the

plaint case, it was stated that even after registered

partition deed dated 07.11.1960 between three branches,

defendant Nos.1, 4 and the deceased K. Rangasami

continued to live jointly and did business jointly. All

the three branches lived jointly. In the plaint, it was

further stated that from the savings of the income and by 8

mortgaging ancestral property, the capital necessary for

the business was found and the business was expanded from

time to time. It was further pleaded that plaintiff,

Senthil Kumaravel was entitled to 1/6th share. Defendant

Nos.8 to 11, representing the branch of deceased K.

Rangasami, were entitled jointly 1/3rd share in all suit

properties. The plaintiff in suit had prayed following

reliefs:

"a) to divide the immovable suit properties described in the schedules 'B', 'D' and 'E' and items 1 to 9 in Schedule 'C' hereunder into six equal shares by metes and bounds with reference to good and bad soil and allot one such share to him with separate possession;

b) to allot 1/6th share in the shares mentioned in item 10 and 11 of Schedule 'C' and item 2 of Schedule 'D' described hereunder;

c) directing the defendants to pay cost of the suit;”

8. The plaint Schedule 'B' included ancestral land in

Palladam and Samalapuram villages with house at

Sadapalayam Helmet. Schedule 'C' included various

immovable properties and included residential building, 9

shares in M/s. Swamy and Swamy Plantations (P) Ltd.

Coonoor, and shares of M/s. Vasudeva Industries Ltd.

were also mentioned as item Nos. 10 and 11 of Scheduled

'C'. In the above suit only defendant Nos.1 to 3 of the

suit, namely, S.K. Kumarasamy, Sundarambal, wife of S.K.

Kumarasamy and minor Kandavadivel son of S.K. Kumarasamy

filed their written statements. In the written statement,

it was pleaded that no doubt some properties have been

acquired jointly in the names of the defendant Nos.1, 3,

4,9 and 10, but they must be deemed to be only co­sharers

in respect of those properties. It was pleaded that three

branches were allotted shares in 1960 partition and

plaint case that parties continued to live jointly was

denied.

9. In O.S.No.37 of 1984, an application under Order

XXIII Rule 3 was filed on 06.08.1984 by the plaintiff

containing signatures of plaintiff and defendants. In the

application under Order XXIII Rule 3 in Schedule 'A' to

Schedule 'J', various items of properties were listed and

allocated to different members of the family. On the

basis of application under Order XXIII Rule 3, Sub­ 10

ordinate Judge, Coimbatore passed an order dated 6.8.1984

and directed for preparation of decree on the basis of

compromise petition.

10. In the compromise decree although various

agricultural properties, house properties and shares were

allotted to two other branches, i.e., branches of S.K.

Kumarasamy and S.K. Chinnasamy but the branch of

Rangasamy was allocated only shares in Vasudeva

Industries which was under liquidation and taken under

the orders of Madras High Court dated 21.01.1982 to be

run by the Board of Directors.

11. Minor children of defendant No.10 filed O.S.No. 827

of 1987 through their mother challenging the compromise

decree dated 06.08.1984 on the ground that they were not

parties thereto. On 03.08.1987 O.S. No.1101 of 1987 was

filed by both the sons of Rangasamy, i.e., S.R.

Shanmugnavelayutham and S.R. Somasundaram. In O.S.

No.1101 of 1987 defendant Nos.1,2 and 3 filed their

written statements where it was pleaded that there was

agreement on 08.03.1981 between the three branches where

defendant No.1 was to pay Rs. 4 lacs to defendant No.4 11

and plaintiff was to pay Rs. 7 lacs to defendant No.4 and

since payment was not made to defendant No.4 suit was

filed through his son. It was further pleaded that

compromise dated 06.08.1984 was to give effect to earlier

agreement dated 08.03.1981. In the O.S. No.827 of 1987,

an affidavit was filed by the mother of the minor stating

that they had entered into the compromise with defendant

No.1 hence seeking permission to withdraw the suit. On

10.02.1993, the O.S. No.827 of 1987 was withdrawn, on the

same date Shanmugavelayuthem who was the first plaintiff

in O.S.No.1101 of 1987 withdrew himself from the suit and

was transposed as defendant No.10 in the suit. The

written statement was filed by Janakiammal, defendant

No.8 supporting the plaintiff's case and also praying for

partition of her share. Senthil Kumaravel, who was

plaintiff in Suit No.37 of 1984, filed a written

statement in O.S.No.1101 of 1987 where he stated that he

filed Suit No.37 of 1984 at the instance of S.K.

Kumarasamy, defendant No.1 and decree dated 06.08.1984

was sham and nominal, and was not to be given effect to.

Additional written statements were filed by defendant 12

Nos.1 to 3. Defendant No.10 also filed written statement

supporting the case of defendant No.1. Reply was filed by

plaintiff, Somasundaram to the written statements filed

by defendant Nos. 1 to 3.

12. Five witnesses were examined on behalf of the

plaintiff. Somasundaram, plaintiff appeared as PW.1. The

plaintiff filed Exhs. A­1 to A­55. On the side of

defendants, four witnesses were examined. Janakiammal

appeared as DW.2 whereas S.K. Kumarasamy appeared as

DW.1. Exh.B­1 to B­104 were marked on behalf of the

defendants. Exh. X­I to X­27 have been marked through

witnesses.

13. The trial court framed five issues and six

additional issues. One of the additional issues was that

whether the suit is not maintainable under Order XXIII

Rule 3A of the CPC. The trial court vide its judgment

dated 30.09.1997 dismissed the suit. The trial court

upheld the plea of defendant Nos.1 to 3 that O.S.No.1101

of 1987 was barred by Order XXIII Rule 3A CPC. The trial

court also upheld the partition deed dated 07.11.1960 and

the agreement dated 08.03.1981. The trial court held that 13

after the year 1960 the entire family was not living as

joint family and all the three branches are co­owners as

far as properties are concerned and were running

partnership businesses. Challenging the judgment of the

trial court dismissing the suit two appeals were filed in

the High Court. A.S.No.332 of 1999 was filed by

Somasundaram, the plaintiff and A.S. No.281 of 2000 was

filed by Janakiammal defendant No.8.

14. The High Court has noticed the point for

determination in the appeal, i.e., whether O.S.No.1101 of

1987 is maintainable in the light of the provisions

contained in Order XXIII Rule 3A of the CPC. The High

Court, however, observed that appeals could be disposed

of according to the finding to be recorded on the

aforesaid point for consideration, however, it has not

formulated any other point for consideration though

extensive arguments have been made by the respective

counsel. It is useful to reproduce paragraphs 163 and 164

of the judgment of the High Court, which are to the

following effect:

“163. The point for determination that 14

arises for consideration in the above appeals is as to whether the suit seeking to declare the decree passed in O.S.No.37 of 1984 on the file of the Sub Court, Coimbatore, is sham and nominal, ultra­vires, collusive, unsustainable, invalid, unenforceable and not binding on the plaintiff, is maintainable in the light of the provisions contained in Order 23 Rule 3 of the CPC and Order 23 Rule 3­A of the CPC?

164. As the appeals could be disposed of on the basis of the finding to be recorded on the aforesaid point for determination, we have not formulated any other point for determination, though extensive arguments have been made by the respective counsel as to whether the partition effected under Ex.B­26, dated 07.11.1960 between Rangaswamy (father of the plaintiff), Kumaraswamy (D­1) and Chinnaswamy (D­4) was acted upon or not;

whether there was a joint family among the three branches after 07.11.1960; whether the various businesses run under different partnership firms are the joint family businesses.”

15. The High Court after considering the submissions of

the respective counsel came to the conclusion that

compromise decree dated 06.08.1984 in Suit No.37 of 1984

was valid, the plaintiff failed to prove that any fraud

was played. The plaintiff, further, failed to prove that

they gave any guarantee in the year 1984 for taking loan

from Punjab National Bank. Hence, basis of the suit that 15

they signed the compromise deed on the representation of

defendant No.1 and that the plaintiff and defendant

having given personal guarantee for loan obtained for

Vasudeva Industries Ltd., to save family properties from

claim of the Bank, the properties be kept only in the

name of defendant No.1 and defendant No.4 but the right

of the plaintiff and defendants will be held intact.

16. The High Court held that it has not been proved that

any personal guarantee was given by the plaintiff, the

very ground pleaded by the plaintiff is knocked out. The

High Court further held that suit was barred by Order

XXIII Rule 3A CPC and only remedy available was to

question the compromise decree in the same suit. The High

Court dismissed both the appeals. Aggrieved by the

judgment of the High Court, these two appeals have been

filed.

17. We have heard Shri V. Giri and Shri Gaurav Agrawal,

learned senior counsel for the appellants. Shri Kapil

Sibal, learned senior counsel has appeared for contesting

respondents. Shri S. Nagamuthu, learned senior counsel 16

has appeared for defendant No.11 and other defendants.

18. Shri V.Giri, learned senior counsel appearing for R.

Janakiammal submits that the compromise decree dated

06.08.1984 in Suit No.37 of 1984 is unfair, inequitable

and fraudulent. Shri Giri submits that Janakiammal who

was defendant No.8 in Suit No.37 of 1984 was not aware of

the compromise application or its terms. Janakiammal is a

widow only knowing Tamil, she signed the English written

papers which was brought to her by DW­2, wife of D­1. She

never engaged any counsel. Shri P.R. Thirumalnesan,

learned counsel, was never engaged by her. She never went

into the Court nor appeared before the Court on

06.08.1984. The family possessed several hundreds acres

of land, several houses and other numerous assets but in

the compromise decree, she was allotted 200 shares which

were in the name of Smt. Kamalam, DW­2 of a sick mill,

i.e., Vasudev Mill.

19. The properties which she inherited from her late

husband Rangasamy and numerous properties which were

purchased in her name after the death of her husband were 17

all allocated to branches of D­1 and D­4 without giving

an inch of land to her. The shares were also allotted to

D­2 and D­5, the wives of D­1 and D­4, who have no pre

existing rights. Janakiammal and her son Somasundaram did

not get any immovable property in the compromise decree

except shares of the Vasudeva mills, a sick company. The

consent decree clearly records that no Vakalatnama has

been filed by D­8. When no Vakalatnama was filed by D­8,

she was not represented by a counsel and the Court was

misled to believe that Thirumalnesan, advocate

represented D­8.

20. The learned counsel submits that the family of three

brothers lived jointly and continued to be joint family

even after partition dated 07.11.1960 and acquired

several properties in the name of three branches. The

family possessed more than 260 acres of land at different

places with several houses but no immovable property was

allocated to Janakiammal or her sons.

21. O.S. No.37 of 1984 was filed on the behest of S.K.

Kumarasamy by C. SenthilKumaravel, son of S.K.Chinnasamy. 18

C. SenthilKumaravel in his written statement in Suit

No.1101 of 1987 has pleaded that Suit No. 37 of 1984 was

filed by him at the behest of S.K.Kumarasamy, D­1. C.

Senthilkumaravel further pleaded that decree in O.S.

No.37 of 1984 was sham and nominal. The 200 shares

allotted to Janakiammal as per compromise decree dated

06.08.1984 which were in the name of Smt. Kamalam were

never transferred to Janakaiammal. Janakiammal fully

supported the plaint case of suit No.1101 of 1987.

22. The partition agreement dated 08.03.1981 as pleaded

by D­1 was only an imaginary story. No such agreement

was filed in the court nor the same was pleaded in a

written statement filed by D.1­3 in O.S. No.37 of 1984.

Despite the agreement dated 08.03.1981 not being produced

in the Court, the trial court in its judgment dated

30.09.1997 had erroneously accepted the factum of

partition by agreement dated 08.03.1981 and accepted the

case of defendant No.1 that compromise decree dated

06.08.1984 was to give effect to the partition dated

08.03.1981.

19

23. No partition was affected in the year 1981 and the

family remained as a joint family. In O.S. No.37 of 1984,

the house property at Tatabad which was in the name of

D­1, was not included, which property was purchased by

joint family fund and the three branches had share in

house at Tatabad which was mentioned at item No.10 in

Schedule C of Suit No.1101 of 1987.

24. The pleading of defendant No.1 that under the

agreement dated 08.03.1981, the plaintiff was to pay Rs.

Seven Lakhs to D­4 and D­1 was to pay Rs. Four Lakhs to

D­4 were all imaginary stories set up by D­1. Neither any

agreement took place on 08.03.1981 nor any amount was to

be paid by plaintiff to D­4. The house at Tatabad

purchased in the year 1978 with the joint family fund was

not included in O.S. No.37 of 1984, and in the house all

members of the family had a share. The amount of

Rs.1,03,000/­, which was received by Janakiammal from the

Insurance Corporation after the death of her husband was

given to defendant No.1, which was utilised for business

purposes. The High Court did not consider the case of 20

Janakiammal as pleaded.

25. Shri Gaurav Agrawal, learned counsel appearing in

Civil Appeal No. 1538 of 2016 on behalf of Somasundaram

submits that plaintiff was deprived of his immovable

properties including land and houses and was given only

worthless shares in the Compromise decree dated

06.08.1984. He submits that the suit No.1101 of 1987 was

filed by the plaintiff to declare the decree dated

06.08.1984 void, unenforceable and fraudulent.

26. It is submitted that the plaintiff was taken to the

Court by D­1 on 06.08.1984 and was asked to sign the

compromise application on the representation that since

the plaintiff and D­10 had given personal guarantee for

the loan taken for Vasudeva Textiles Mills from Punjab

National Bank, their name should not be any immovable

property to save the family property. The plaintiff was

assured by D­1 that his right in immovable property shall

not be affected by the Compromise decree as the decree

dated 06.08.1984 shall not be made effective. 21

27. It is submitted that the allocation of the properties

in the compromise decree is unfair. A fraud was played on

the plaintiff as well as on the court in obtaining the

compromise decree. It is submitted that the Order XXIII

Rule 3A shall not govern a case where a fraud is played

on the Court. Suit No. 37 of 1984 was filed on illusory

cause of action, bar under Order XXIII Rule 3A shall not

apply. The High Court after having found that suit is

barred under Order XXIII Rule 3A has not entered into

other issues. The house property of Tatabad which was

purchased in 1978 was not included in Schedule of

O.S.NO.37 of 1984 which property was included in Suit

No.1101 of 1987, hence, suit for share in house property

at Tatabad was fully maintainable. The plaintiff has

completed his graduation in Textile Engineering. Vasudeva

Industries was not a family concern, which was under

litigation and was not a profit making venture. The

consent decree dated 06.08.1984 was never acted upon. The

mill could not be revived and closed down in 1987. The

defendant No.1 continued to manage the affairs of the

mill till 1989 when he resigned.

22 28. Shri Kapil Sibal refuting the submissions of the

appellants contends that partition dated 07.11.1960

between three branches was given effect to. Income Tax

Returns were filed by three branches on the basis of 1960

partition. There was an arrangement made in 1981 under

which the D­1 was to take properties at Coonoor, D­4 was

to take properties at Somnur whereas plaintiff and

defendant No.1 decided to take Vasudeva Textiles Mills.

The Suit No.37 of 1984 was filed by the son of D­4 at his

instance.

29. Shri Sibal submits that the Suit No.37 of 1984 has

been decided on compromise where all the defendants have

signed the compromise application including Janakiammal

as well as Somasundaram. The Vakalatnama on behalf of

defendant Nos.7 to 11 was filed by Advocate Thirumalnesan

who represented defendants 8 to 11. It is submitted that

plaintiff and D­10 were all educated persons and having

signed the compromise application, it is not open to them

to contend that they signed the application under some

misrepresentation or fraud.

23

30. The plaintiff and defendant No.10 wanted to take the

mill in their share hence, the shares of the mill were

allocated in the compromise decree to Rangasamy Branch.

Rangasamy Branch had 95% shares in the Mill, i.e., the

controlling share. The mill was valued at the rate of

Rs.32 Lakhs. There is no fraud in the compromise decree.

The Compromise decree dated 06.08.1984 was given effect

to. There being partition in the year 1960 there was

neither any joint family property nor any joint family.

It was pleaded by the plaintiff that his mother and

sister expressed a desire not to take any share. In 1989,

the plaintiff had sold the Vasudeva Mills.

31. Shri Sibal submits that none of the pleadings of the

plaintiff falls in the definition of fraud. No fraud was

committed on the plaintiff. Under Order XXIII Rule 3A

CPC, no separate suit could have been filed to question

the compromise decree.

32. Shri Sibal submits that the remedy open for the

plaintiff was to either file an application in suit No.37 24

of 1984 or file an appeal against the Compromise decree.

Filing of suit No.1101 of 1987 is nothing but litigative

gambling by the plaintiff. Shri Sibal submits that the

suit filed by the plaintiff deserves to be dismissed with

costs.

33. Shri Nagamuthu, learned senior counsel appearing for

the defendant No.11 has supported the judgment of the

Courts below. He submits that from 1989, selling of

shares of the mill started. The defendant No.1 purchased

the shares of the mill. The Compromise decree dated

06.08.1984 was acted upon. In 1994, the complete shares

of the mill were transferred. Shri Nagamuthu submits that

the defendant No.11 and other defendants were transferee

of the shares.

34. Shri Giri in rejoinder submission submits that

Janakiammal’s case was that she never engaged any

advocate. She, however, stated that she had signed the

compromise application in Tamil. Her case was that she

does not know English and the Compromise was written in 25

English. Signatures of Janakiammal were taken on

compromise application by D­2, wife of D­1, who in usual

course, for the purposes of business and Tax obtains

signatures of Janakiammal from time to time. The family

was running various businesses. Shri Giri submits that

the judgment of the trial court dated 06.08.1984 in O.S.

No.37 of 1984 states that Vakalatnama of defendant Nos.8

to 13 was not filed. He submits that certified copy of

Vakalatnama filed by advocate Thirumalnesan on behalf of

defendant Nos.8 to 13 has also not been brought on record

and according to the papers submitted by D­1, the

Vakalatnama and the documents have been destroyed. How

can D­1 say that the Vakalatnama has been destroyed.

35. Shri Giri submits that the house at Tatabad which was

included as Item No.10 in Schedule C in Suit No.1101 of

1987 was purchased from a joint family fund. Although the

house was taken in auction by D­1 but the consideration

for house was not paid by D­1 individually, rather the

amount was obtained from company Swamy and Swamy

Plantations, which is a private limited company in which 26

D­1, D­4 and D­10 had shares. The Branch of Rangasamy in

Swamy and Swamy Plantations had about more than one­third

share. The Tatabad house having been obtained from a

private company which was a family business, all the

branches shall have shares in the house. The Suit No.37

of 1984 having not included the Tatabad house, the suit

for partition of house being Suit No.1101 of 1987 was

fully maintainable and both the Courts erred in not

granting share to the plaintiff in the said house.

36. One of the additional issues, which were framed by

the trial court, was “Whether the suit is not

maintainable in view of Order 23 Rule 3 (A) of the Code

of Civil Procedure?”

37. The trial court has decided the above issue against

the plaintiff holding that separate suit challenging the

compromise decree is barred as per Order XXIII Rule 3A of

Civil Procedure Code.

38. The High Court in the impugned judgment as noted

above has observed that the appeals can be decided on

only one point of consideration, i.e., as to whether Suit 27

No. 1101 of 1997 filed by the plaintiff Somasundaram

challenging the compromise decree dated 06.08.1984 was

barred under Order XXIII Rule 3A. The High Court in the

impugned judgment relying on judgments of this Court held

that no separate suit is maintainable questioning the

compromise decree, hence Suit No.1101 of 1987 was barred.

Both the Courts having held that Suit No.1101 of 1987

filed by the plaintiff is barred under Order XXIII Rule

3A, we deem it appropriate to first consider the above

issue.

39. Order XXIII Rule 3 provides for compromise of suit.

In Rule 3 amendments were made by Act No. 104 of 1976 by

which a proviso and an explanation was added. Order

XXIII Rule 3 as amended is to the following effect:­

“3. Compromise of suit. ­ Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject­ matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree is accordance therewith so far as it relates to the parties to the suit, whether or not the subject­matter of the agreement, compromise 28

or satisfaction is the same as the subject­ matter of the suit:

Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.

Explanation­An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule;”

40. By the same amendment Act No.104 of 1976, a new Rule,

i.e., Rule 3A was added providing

“3A. Bar to suit. ­ No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.”

41. Determination of disputes between persons and bodies

is regulated by law. The legislative policy of all

legislatures is to provide a mechanism for determination

of dispute so that dispute may come to an end and peace

in society be restored. Legislative policy also aims

for giving finality of the litigation, simultaneously 29

providing higher forum of appeal/revision to vend the

grievances of an aggrieved party. Rule 3A which has been

added by above amendment provides that no suit shall lie

to set aside a decree on the ground that the compromise

on which the decree is based was not lawful. At the same

time, by adding the proviso in Rule 3, it is provided

that when there is a dispute as to whether an adjustment

or satisfaction has been arrived at, the same shall be

decided by the Court which recorded the compromise. Rule

3 of Order XXIII provided that where it is proved to the

satisfaction of the Court that a suit has been adjusted

wholly or in part by any lawful agreement or compromise,

the Court shall order such agreement or compromise to be

recorded and pass a decree in accordance therewith. Rule

3 uses the expression “lawful agreement or compromise”.

The explanation added by amendment provided that an

agreement or a compromise which is void or voidable under

the Indian Contract Act, 1872, shall not be deemed to be

lawful.”

42. Reading Rule 3 with Proviso and Explanation, it is 30

clear that an agreement or compromise, which is void or

voidable, cannot be recorded by the Courts and even if it

is recorded the Court on challenge of such recording can

decide the question. The Explanation refers to Indian

Contract Act. The Indian Contract Act provides as to

which contracts are void or voidable. Section 10 of the

Indian Contract Act provides that all agreements are

contracts if they are made by the free consent of parties

competent to contract, for a lawful consideration and

with a lawful object, and are not hereby expressly

declared to be void. Section 14 defines free consent in

following words:­

“14. “Free consent” defined.—Consent is said to be free when it is not caused by— (1) coercion, as defined in section 15, or (2) undue influence, as defined in section 16, or (3) fraud, as defined in section 17, or (4) misrepresentation, as defined in section 18, or (5) mistake, subject to the provisions of sections 20, 21 and 22.

Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake.” 31

43. A consent when it is caused due to coercion, undue

influence, fraud, misrepresentation or mistake is not

free consent and such agreement shall not be contract if

free consent is wanting. Sections 15, 16, 17 and 18

define coercion, undue influence, fraud and

misrepresentation. Section 19 deals with voidability of

agreements without free consent. Section 19 is to the

following effect:­

“19. Voidability of agreements without free consent.—When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.

A party to a contract whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.

Exception.—If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence.

Explanation.—A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practised, or to whom such misrepresentation was made, does not render a contract voidable.” 32

44. A conjoint reading of Sections 10, 13 and 14

indicates that when consent is obtained by coercion,

undue influence, fraud, misrepresentation or mistake,

such consent is not free consent and the contract becomes

voidable at the option of the party whose consent was

caused due to coercion, fraud or misrepresentation. An

agreement, which is void or voidable under the Indian

Contract Act, shall not be deemed to be lawful as is

provided by Explanation to Rule 3 of Order XXIII.

45. We need to examine the grounds on which the

compromise decree dated 06.08.1984 was sought to be

impeached by pleadings in Suit No. 1101 of 1987. Whether

the grounds to impeach the compromise deed are one which

can be raised before the Court recording the compromise

decree as per Rule 3 of Order XXIII? We need to look

into the grounds on the basis of which Suit No.1101 of

1987 was filed questioning the compromise decree.

Paragraphs 12 and 13 of the plaint contain the

allegations, which are to the following effect:­

“12. In the beginning of 1984, the 1 st 33

defendant represented that since the plaintiff have given personal guarantee to the Bank for the loans of several lakhs, it would be risky and not expedient to have the family properties in the name of the plaintiff and it would be advantageous and safe to keep off the names of the plaintiff on records as owners. Even there the plaintiff did not direction and wisdom of the 1st defendant. The 1st defendant further represented that the entire family properties would be kept in the name of defendants­ 1 and 4 for the purpose of record and to avoid the risk of any bank claim. The 1 st defendant assured that this arrangement would not affect or extinguish the plaintiff legitimate share in the properties. Here again the plaintiff obeyed and acted according to the decision and directions of the 1st defendant.

13. The 1st defendant arranged to file a suit in Sub Court, Coimbatore, through the family lawyer. It was a collusive suit and a mere make believe affairs. There was no misunderstanding or provocations for any one of the members of the family to go to a Court of Law for partition.”

46. In paragraph 15 of the plaint, the plaintiffs had

further pleaded that entre proceedings and the decree

secured from the Court is a fraud played not only on the

plaintiff but also against the Court. The plaintiffs

pleads that compromise decree which was intended only to

secure and safeguard the properties is sham and nominal

besides being fraudulent.

34

47. From the above, it is clear that plaintiff pleaded

that compromise recorded on 06.08.1984 was not lawful

compromise having been obtained by fraud and

misrepresentation. The plaintiff’s case was that they

were represented by D1 that the compromise is being

entered only to save the family property since the

plaintiff has given personal guarantee to the Punjab

National Bank for obtaining loan for Vasudeva Mills.

Pleadings clearly make out the case of the plaintiff that

the consent which he gave for compromise by signing the

compromise was not free consent. The compromise, thus,

become voidable at the instance of the plaintiff.

48. Whether the bar under Rule 3A of Order XXIII shall be

attracted in the facts of the present case as held by the

Courts below is the question to be answered by us. Rule

3A bars the suit to set aside the decree on the ground

that compromise on which decree was passed was not

lawful. As noted above, the word “lawful” has been used

in Rule 3 and in the Explanation of Rule 3 states that

“an agreement or compromise which is void or voidable

under the Indian Contract Act,1872 (9 of 1872), shall not 35

be deemed to be lawful……………….;”

49. Thus, an agreement or compromise which is clearly

void or voidable shall not be deemed to be lawful and the

bar under Rule 3A shall be attracted if compromise on the

basis of which decree was passed was void or voidable.

50. Order XXIII Rule 3 as well as Rule 3A came for

consideration before this Court in large number of cases

and we need to refer to few of them to find out the ratio

of judgments of this Court in context of Rule 3 and Rule

3A. In Banwari Lal Vs. Chando Devi (Smt.) Though LRs.

And Anr., (1993) 1 SCC 581, this Court considered Rule 3

as well as Rule 3A of Order XXIII. This Court held that

object of the Amendment Act, 1976 is to compel the party

challenging the compromise to question the Court which

has recorded the compromise. In paragraphs 6 and 7,

following was laid down:­

“6. The experience of the courts has been that on many occasions parties having filed petitions of compromise on basis of which decrees are prepared, later for one reason or other challenge the validity of such compromise. For setting aside such decrees suits used to be filed which dragged on for years including appeals to different courts. Keeping in view the predicament of the courts 36

and the public, several amendments have been introduced in Order 23 of the Code which contain provisions relating to withdrawal and adjustment of suit by Civil Procedure Code (Amendment) Act, 1976. Rule 1 of Order 23 of the Code prescribes that at any time after the institution of the suit, the plaintiff may abandon his suit or abandon a part of his claim. Rule 1(3) provides that where the Court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject­matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw such suit with liberty to institute a fresh suit. In view of Rule 1(4) if plaintiff abandons his suit or withdraws such suit without permission referred to above, he shall be precluded from instituting any such suit in respect of such subject­matter. Rule 3 of Order 23 which contained the procedure regarding compromise of the suit was also amended to curtail vexatious and tiring litigation while challenging a compromise decree. Not only in Rule 3 some special requirements were introduced before a compromise is recorded by the court including that the lawful agreement or a compromise must be in writing and signed by the parties, a proviso with an explanation was also added which is as follows:

“Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall 37

decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.

Explanation.— An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.”

7. By adding the proviso along with an explanation the purpose and the object of the amending Act appears to be to compel the party challenging the compromise to question the same before the court which had recorded the compromise in question. That court was enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner. The explanation made it clear that an agreement or a compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful within the meaning of the said rule. Having introduced the proviso along with the explanation in Rule 3 in order to avoid multiplicity of suit and prolonged litigation, a specific bar was prescribed by Rule 3­A in respect of institution of a separate suit for setting aside a decree on basis of a compromise saying:

“3­A. Bar to suit.— No suit shall lie to set aside a decree on the ground that the compromise on which 38

the decree is based was not lawful.”

51. The next judgment to be noted is Pushpa Devi Bhagat

(Dead) Through LR. Sadhna Rai (Smt.) Vs. Rajinder Singh

and Ors., (2006) 5 SCC 566, Justice R.V. Raveendran

speaking for the Court noted the provisions of Order

XXIII Rule 3 and Rule 3A and recorded his conclusions in

paragraph 17 in following words:­

“17. The position that emerges from the amended provisions of Order 23 can be summed up thus:

(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) CPC.

(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) of Rule 1 Order 43.

(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3­A.

(iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by 39

an order on an application under the proviso to Rule 3 Order 23.

Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21­8­2001 by alleging that there was no valid compromise in accordance with law.

Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27­ 8­2001) filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having regard to the express bar contained in Section 96(3) of the Code.”

52. The next judgment is R. Rajanna Vs. S.R. Venkataswamy

and Ors., (2014) 15 SCC 471 in which provisions of Order

XXIII Rule 3 and Rule 3A were again considered. After 40

extracting the aforesaid provisions, following was held

by this Court in paragraph 11:­

“11. It is manifest from a plain reading of the above that in terms of the proviso to Order 23 Rule 3 where one party alleges and the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the Court before whom such question is raised, shall decide the same. What is important is that in terms of Explanation to Order 23 Rule 3, the agreement or compromise shall not be deemed to be lawful within the meaning of the said Rule if the same is void or voidable under the Contract Act, 1872. It follows that in every case where the question arises whether or not there has been a lawful agreement or compromise in writing and signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the court concerned. What is lawful will in turn depend upon whether the allegations suggest any infirmity in the compromise and the decree that would make the same void or voidable under the Contract Act. More importantly, Order 23 Rule 3­A clearly bars a suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful. This implies that no sooner a question relating to lawfulness of the agreement or compromise is raised before the court that passed the decree on the basis of any such agreement or compromise, it is that court and that court alone who can examine and determine that question. The court cannot direct the parties to file a separate suit on the subject for no such suit will lie in view of the provisions of Order 23 Rule 3­A CPC. That is precisely 41

what has happened in the case at hand. When the appellant filed OS No. 5326 of 2005 to challenge the validity of the compromise decree, the court before whom the suit came up rejected the plaint under Order 7 Rule 11 CPC on the application made by the respondents holding that such a suit was barred by the provisions of Order 23 Rule 3­A CPC. Having thus got the plaint rejected, the defendants (respondents herein) could hardly be heard to argue that the plaintiff (appellant herein) ought to pursue his remedy against the compromise decree in pursuance of OS No. 5326 of 2005 and if the plaint in the suit has been rejected to pursue his remedy against such rejection before a higher court.”

53. The judgments of Pushpa Devi(supra) as well as

Banwari Lal (supra) were referred to and relied by this

Court. This Court held that no sooner a question

relating to lawfulness of the agreement or compromise is

raised before the court that passed the decree on the

basis of any such agreement or compromise, it is that

court and that court alone who can examine and determine

that question.

54. In subsequent judgment, Triloki Nath Singh Vs.

Anirudh Singh (Dead) Through Legal Representatives and

Ors., (2020) 6 SCC 629, this Court again referring to 42

earlier judgments reiterated the same preposition, i.e.,

the only remedy available to a party to a consent decree

to avoid such consent decree is to approach the court

which recorded the compromise and separate suit is not

maintainable. In paragraphs 17 and 18, following has

been laid down:­

“17. By introducing the amendment to the Civil Procedure Code (Amendment) 1976 w.e.f. 1­2­1977, the legislature has brought into force Order 23 Rule 3­A, which creates bar to institute the suit to set aside a decree on the ground that the compromise on which decree is based was not lawful. The purpose of effecting a compromise between the parties is to put an end to the various disputes pending before the court of competent jurisdiction once and for all.

18. Finality of decisions is an underlying principle of all adjudicating forums. Thus, creation of further litigation should never be the basis of a compromise between the parties. Rule 3­A of Order 23 CPC put a specific bar that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The scheme of Order 23 Rule 3 CPC is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and a voluntary act on the part of the parties. 43

The court can be instrumental in having an agreed compromise effected and finality attached to the same. The court should never be party to imposition of a compromise upon an unwilling party, still open to be questioned on an application under the proviso to Order 23 Rule 3 CPC before the court.”

55. The above judgments contain a clear ratio that a

party to a consent decree based on a compromise to

challenge the compromise decree on the ground that the

decree was not lawful, i.e., it was void or voidable has

to approach the same court, which recorded the compromise

and a separate suit challenging the consent decree has

been held to be not maintainable. In Suit No.1101 of

1987, the plaintiff prayed for a declaration declaring

that the decree passed in O.S. No. 37 of 1984 is sham and

nominal, ultravires, collusive, unsustainable invalid,

unenforceable and not binding on the plaintiffs. We have

noted the grounds as contained in the plaint to challenge

the consent decree in foregoing paragraphs from which it

is clear that the compromise, which was recorded on

06.08.1984 was sought to be termed as not lawful, i.e.,

void or voidable. On the basis of grounds which have been 44

taken by the plaintiff in Suit No.1101 of 1987, the only

remedy available to the plaintiff was to approach the

court in the same case and satisfy the court that

compromise was not lawful. Rule 3A was specifically

added by the amendment to bar separate suit to challenge

the compromise decree which according to legislative

intent to arrest the multiplicity of proceedings. We,

thus, do not find any error in the judgment of trial

court and High Court holding that Suit No.1101 of 1987

was barred under Order XXIII Rule 3A.

56. We having found that Suit No.1101 of 1987 being

barred under Order XXIII Rule 3A, it is not necessary for

us to enter into correctness or otherwise of the grounds

taken in the plaint for questioning the compromise decree

dated 06.08.1984. The compromise decree dated

06.08.1984, thus, could not have been questioned in Suit

No. 1101 of 1987.

57. There remains one more submission which needs to be

considered.

58. Learned counsel for the appellants contends that even 45

if consent decree dated 06.08.1984 could not have been

challenged, the appellants were entitled for shares in

residential building at Tatabad, Dr. Alagappa Chettiar

Road, Coimbatore, which was left out from the decree

dated 06.08.1984. The above residential suit property was

not a part in O.S. No.37 of 1984 and was not in

compromise decree dated 06.08.1984. The averment of the

appellant is that the said residential property was

although in the name of defendant No.1 but it was

acquired from joint family funds hence the appellant had

also share in the property.

59. The residential building at Tatabad, Dr. Alagappa

Chettiar Road, Coimbatore was included in Item No.10 of

Schedule 'B' of properties to the following effect:

“Item No.X

In Coimbatore Registration on District, Coimbatore Corporation Limits, Tatabad, Dr. Alagappa Chettiar Road, D.No.101, Extent 0.33 acres with 4500 sq.ft. built up residential building.”

60. The above residential property was neither included

in O.S.No.37 of 1984 nor part of compromise decree dated 46

06.08.1984. The plaintiff's prayer to declare the decree

passed in O.S.37 of 1984 as unenforceable shall not

preclude the consideration of a property which was not

part of the decree. The appellants' case for claiming

share in the residential property at Tatabad, Alagappa

Chettiar Road, Coimbatore, thus, needs to be considered

in these appeals.

61. We may first notice pleadings regarding the case of

the plaintiff and defendant No.1 with regard to above

mentioned house property as reflected in O.S. No.1101 of

1987.

62. In paragraph 6(e) of the plaint, following has been

pleaded by the plaintiff:

"6(e) In 1978 a palatial bungalow was purchased in Tatabad, Coimbatore. This is set out and described as Item No.10 of Schedule 'B'. The acquisition of this property was only out of the joint income and for the benefit of the family.”

63. Defendant Nos.1 to 3 filed written statements in

O.S. No.1101 of 1987 and with regard to above averment

made in paragraph 6(e), following has been pleaded by the

defendant No.1:

47

"6. The allegations in paragraph 6 of the plaint are not wholly true. The allegation that the property described as Item No.10 of Schedule 'B' was acquired out of the joint income for the benefit of the family is absolutely false. Firstly there was no joint income. Secondly there is no family, thirdly it was not purchased out of joint income. The property was taken in auction by the 1st defendant. The amount necessary for payment of the price was drawn by the 1st defendant from Swamy & Swamy Co. The amount was debited against him in the amounts of the Swamy & Co.”

64. The case of defendant No.1 was that above property

was purchased in auction by the defendant No.1. The

defendant No.1 had filed Ex.B­27 in support of his claim

that house property is a separate property of defendant

No.1. Ex.B­27 indicates that defendant No.1 was declared

as the purchaser of the property as sold by public

auction held on 28.11.1979 for Rs.1,51,000/­. Ex.B­27 was

a sale certificate issued by Court of Subordinate Judge,

Coimbatore to the above effect. Although in paragraph 6

of the written statement the defendant No.1 had pleaded

that amount necessary for payment of price was drawn by

defendant No.1 from Swamy and Swamy Co. Defendant No.1

appeared in Witness Box as DW­2 and stated in his cross­ 48

examination that he has for payment of house property at

Tatabad utilised the funds of the Swamy and Swamy

Plantations Co. In his cross­examination, he admitted

that he had taken Rs.1,50,000/­. In his cross­

examination, following was stated by defendant No.2:

“It is incorrect to say that for purchasing house company funds were taken. I do not remember and there are no records to show from which partnership and from which account it was drawn. It is not correct to say that I took joint family funds and purchased. I would have taken about Rs.1.50 lakhs. It was not returned. Records cannot be produced now.”

65. In subsequent cross­examination, he clearly

mentioned that the amount which was taken for the

purchase of the house property at Tatabad was not

returned to Swamy and Swamy Plantations Co. In his cross­

examination on 12.08.1997, defendant No.2 states:

“On 12.8.1997 the witness was sworn and re­ examined.

The reason for not returning the amount to Swamy & Sawmy Plantation Company from which it was borrowed for the purchase of the house in Tatabad, because there was credit balance in my name in the said company.” 49

66. Evidence on record, thus, indicates that Tatabad

house property was purchased in the name of defendant

No.1 and the consideration for purchase was paid from

Swamy and Swamy Plantations Co. having its Directors and

shareholders only the family members of all the branches.

In his cross­examination defendant No.2 has stated:

“We started Co. by name Swamy and Swamy Plantations in 1974 in which members of all the three branches of the family were the shareholders.”

67. The details of the shareholders of the Swamy and

Swamy Plantations (P) Ltd., Coonoor, were mentioned in

O.S.No.37 of 1984 as Item No.10 of Schedule 'C' which is

to the following effect:

“Item No.10

Details of shares in M/s. Swami and Swami Plantations (P) Ltd., Coonoor.

S.No. Name No. of Shares Total Value

1.S.K. Kumaraswamy 920 Rs.92,000.00 2.S.K. Chinnasamy 440 Rs.44,000.00 3.S.R.Shanmugavelautham 410 Rs.41,000.00 4.S.R. Somasundaram 230 Rs.23,000.00 5.Smt.R. Janaiammal 810 Rs. 1,000.00 6.Smt. S. Saraswathy 750 Rs.75,000.00 7.C.Kamalam 610 Rs.61,000.00 8.Smt. C. Sathiyavathi 75 Rs. 7,500.00 50

Total 4245 Rs.4,24,500.00”

68. As per details given above the Rangasamy branch held

2190 shares out of 4245 shares which is more than 50%

shares of the Company.

69. The main plank of submission on behalf of respondent

No.1 is that after the partition dated 07.11.1960, the

three branches had separated and joint family status came

to end. He submitted that partition dated 07.11.1960 is

the registered partnership deed which partition was

accepted by trial court in its judgment. The partition of

joint family of three branches having been accepted on

07.11.1960 there was no joint family when the Tatabad

house property was purchased in 1979.

70. The submission of the learned counsel for the

appellants in support of the appeals is that partition

dated 07.11.1960 was entered between three brothers to

save the landed property from Land Ceiling Act. The

partition deed dated 07.11.1960 was got registered on

07.11.1960, it claims that parties have divided immovable

properties on 01.04.1960. The submission is that Land 51

Ceiling Act was being implemented immediately after

01.04.1960 hence the said claim was set up in the

partition deed. The partition deed was executed to save

the landed property of the three branches and there was

no intention of separating each branch and bringing the

change in joint family status. The submission of Shri

Giri has been reiterated which was also raised before the

High Court that after partition dated 07.11.1960 the

three brothers united and joint family continued even

after 07.11.1960, which is evident from different

properties purchased in the name of all the three

branches, living together in ancestral house at

Sadapalayam and newly constructed house at Somnur. After

the purchase of land in 1963 all the three branches

continued to run family businesses together.

71. Learned counsel for the appellants further submits

that it is own case of defendant No.1 that partition

agreement dated 08.03.1981 took between the parties under

which Rangasamy branch agreed to take Vasudeva Textile

Mills, the branch of defendant No.1, S.K. Kumarasamy

decided to take property at Coonoor and Vedapathi village 52

and Chinnasamy branch decided to take property at Somnur.

Defendant No.1 has pleaded that under the agreement dated

08.03.1981, the plaintiff had to pay Rs.7 lacs to

defendant No.4 and defendant No.1 had to pay Rs.4 lacs to

defendant No.4 to equalise the valuation by partition as

was agreed on 08.03.1981. Shri Giri submits that DW.1

himself came with case that partition had taken place on

08.03.1983 and compromise decree was nothing but

implementation of the said agreement. Shri Giri submits

that when defendant No.1 himself states about the

partition in the year 1981, the partition pre­supposes

the joint family and had the three branches separated

from 07.11.1960, there was no question of again effecting

partition in the year 1981.

72. One of the points for consideration before us is

that as to whether at the time when Tatabad house was

acquired by defendant No.1 whether all three branches

were part of joint family or all the three branches after

partition dated 07.11.1960 continued to be separate from

each other.

53

73. The sheet anchor of the defendant No.1 is that three

branches of family were not joint as it was partitioned

by partition deed dated 07.11.1960. The partition deed

dated 07.11.1960 is a registered partition deed between

three branches. The partition deed dated 07.11.1960

referred to earlier partition deed dated 27.09.1953 by

which the father of three brothers partitioned property

between son of his first wife and his three sons from

second wife. The properties which were allotted to in

the partition deed dated 27.09.1953 was 86.72 acres

between three brothers. The Partition Deed dated

07.11.1960 reads:­

“A Document dated 28.09.1953 bearing No.3158/1953 has been registered at the Coimbatore Registrar’s Office as a Partition Deed and has been executed on the 27th day of September, 1953 wherein the properties belonging to our brother Sennimalai Gounder, the son of the first wife of our father A.V. Kandasamy Gounder between us and our father. We have been enjoying the properties allotted to the three of us vide the said document as one family and have developed it, sold it, done agriculture in it and carried out business. We have also partitioned among us.

Since we decided to partition amongst ourselves we have divided the business 54

capital belonging to our joint family vide accounts dated 1.4.1960. We have already divided the jewels, utensils and other articles and each of us are enjoying them separately. Though on 01.04.1960 we have divided the immovable properties such as house buildings, factory buildings, farm and lands to avoid litigation among us in future we have registered it through this document.”

74. The case of the appellant is that the partition deed

dated 07.11.1960 was entered between three brothers to

save the properties from land ceiling laws. The relevant

date under the Land Ceiling Act was 07.04.1960 on which

date the extent of properties in hands of a person has to

be determined and since three brothers, who consisted

members of joint family on the relevant date had more

than the land which was permitted to a person, a

partition was entered to save the properties from land

ceiling laws. This argument was rejected by the trial

court holding that it has not been proved that land

ceiling laws in any manner affected the extent of land in

the hands of three brothers. We need to notice some

provisions of Tamil Nadu Land Reforms (Fixation of

Ceiling on Land) Act, 1961. Section 3 of the Act which 55

is a definition clause defines the word “person” in

Section 3(34) which is to the following effect:­

“3(34). “person” includes any company, family firm, society or association of individuals, whether incorporated or not or any private trust or public trust.”

75. Section 5 of the Act provide for ceiling area.

According to sub­section (1)(a) of Section 5 the ceiling

area in the case of every person and in the case of every

family consisting of not more than five members was 30

standard acres. Figure of 30 standard acres was

subsequently reduced to 15 standard acres by Tamil Nadu

Act No. 37 of 1972. Section 5(1)(b) further provided

that ceiling area in the case of every family consisting

of more than five members shall be 30 standard acres

together with an additional 5 standard acres for every

member of the family in excess of five. In event, the

ceiling area is determined treating the Hindu Undivided

Family, joint family consisting of three brothers, the

ceiling area shall be 30 standard acres by which 5 acres

additional for every member of the family in excess of

five. The land which was possessed by the three brothers 56

in the year 1960 was more than 86.52 acres, which extent

was received by the three brothers in 1953 partition.

Thereafter three brothers have acquired further land. In

case, three brothers before 07.04.1960 partition their

joint family, then each person will be entitled to 30

acres. Thus, partition of the properties among three

brothers was clearly beneficial to the properties

possessed by the three brothers. The view of the trial

court that it is not proved that any benefit under the

Ceiling of Land Act could have been obtained by three

brothers is clearly untenable. The view expressed by the

trial court was not after examining the provisions of

Act, 1961. Further the statement in the partition that

three brothers have already divided the immovable

properties on 01.04.1960 clearly was with intent to get

away from Act, 1961 since the relevant date under the

Ceiling Act was 07.04.1960.

76. Under Hindu Law, any member of the joint family can

separate himself from joint family. The intention of the

parties to terminate the status of joint family is a

relevant factor to determine the status of Hindu 57

Undivided Family. From the above, it is clear that real

intendment of three branches to partition their

properties was not that they did not want Hindu Undivided

Family to continue rather the said partition was with

object to get away from application of Ceiling Act, 1961.

The intention of the parties when they partitioned their

properties in the year 1960 is a relevant fact.

77. However, the Partition Deed dated 07.11.1960 being a

registered Partition Deed between three branches, the

same cannot be ignored. Properties admittedly were

divided in three branches by the said partition. The

question is as to whether after 07.11.1960, the family

continued as a Joint Family or the status of joint family

came to an end on 07.11.1960. The case of the appellant

which was also pressed by the High Court was that even if

partition dated 07.11.1960 is accepted; the parties lived

in a joint family and continued their joint family

status. The contention advanced by the appellant was

that there was reunion between three brothers to revert

to the status of Joint Hindu Family, which is amply

proved from the acts and conducts of the parties 58

subsequent to 07.11.1960.

78. The concept of reunion in Hindu Law is well known.

Hindu Joint Family even if partitioned can revert back

and reunite to continue the status of joint family.

Mulla on Hindu Law, 22nd Edition, while deliberating on

reunion has status following in paragraphs 341, 342 and

343:­

“341. Who may reunite,­ ‘A reunion in estate properly so called, can only take place between persons who were parties to the original partition’. It would appear from this that a reunion can take place between any persons who were parties to the original partition. Only males can reunite.

342. Effect of reunion,­ The effect of a reunion is to remit the reunited members to their former status as members of a joint Hindu family.

343. Intention necessary to constitute reunion: To constitute a reunion, there must be an intention of the parties to reunite in estate and interest. In Bhagwan Dayal v. Reoti Devi, the Supreme Court pointed out that it is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate with an intention to revert to their former status. Such an agreement may be express or may be implied by the conduct of the parties. The conduct must be of an incontrovertible character 59

and the burden lies heavily on the party who assets reunion.”

79. The Privy Council in Palani Ammal Vs.

Muthuvenkatacharla Moniagar and Ors., AIR 1925 PC 49 has

held that if a joint Hindu family separates, the family

or any members of it may agree to reunite as a joint

Hindu family, but such a reuniting is for obvious

reasons, which would apply in many cases under the law of

the Mitakshara, of very rare occurrence, and when it

happens it must be strictly proved as any other disputed

fact is proved. In paragraph 9, the Privy Council laid

down following :­

“9. But the mere fact that the shares of the coparceners have been ascertained does not by itself necessarily lead to an inference that the family had separated.

There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be. It is also now beyond doubt that a member of such a joint family can separate himself from the other members of the joint family and is on separation entitled to have his share in the property of the joint family ascertained and partitioned off for him, and that the remaining coparceners, without any special agreement amongst themselves, 60

may continue to be coparceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener had separated from them. It is also quite clear that if a joint Hindu family separates, the family or any members of it may agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved. The leading authority for that last proposition is Balabux Ladhuram v. Rukhmabai (1903) 30 Cal. 725.”

80. Another judgment which needs to be noticed is

judgment of Madras High Court in Mukku Venkataramayya Vs.

Mukku Tatayya and Ors., AIR 1943 Mad. 538. In the above

case, there was partition in the family in the year 1903

as a result of which the father with his second wife and

children separated and begin to live apart from his sons

by the first wife. The case of the respondent was that

he and his brothers continued to remain joint after their

father decided to remain away from them in 1903. An

alternative case was also put forward that there has been 61

a reunion amongst the brothers after the partition.

Madras High Court in paragraph 5 stated:­

“5. ……………………..But if a general partition between all the members takes place, re­ union is the only means by which the joint status can be re­established. Mere jointness in residence, food or worship or a mere trading together cannot bring about the conversion of the divided status into a joint one with all the usual incidents of jointness in estate and interest unless an intention to become re­united in the sense of the Hindu law is clearly established. The rule is, if I may say so with respect, correctly stated by the Patna High Court, in Pan Kuer v. Ram Narain Chowdhary, A.I.R. 1929 Pat. 353 where the learned Judge observes that:

To establish it, (reunion), it is necessary to show not only that the parties already divided, lived or traded together, but that they did so with the intention of thereby altering their status and of forming a joint estate with all its usual incidents.

81. The High Court held that the brothers, who had

divided, lived and traded together, the case of the

reunion was accepted. In paragraph 17, following was

laid down:­

“17. The question then is, whether this 62

finding is sufficient to support a case of reunion. We are conscious that the burden of proof is heavily on the respondent and also that proof of mere jointness in residence, food and worship dees not necessarily make out reunion. What is to be established is that not only did the parties who had divided lived and traded together, but that they did so with the intention of thereby altering their divided status into a joint status with all the usual incidents of jointness in estate and interest. In our opinion the way in which the brothers dealt with each other leaves no room for doubt that it was their deliberate intention to reunite so as to reproduce the joint status which had existed before the partition of 1903. The immediate object of the partition was to enable the father to live separately from his sons by the first wife, as misunderstandings had arisen between them. As between the sons themselves there never was any reason for a separation inter se and there can be no doubt that the moment they separated away from their father they desired to live and lived together in joint status. It is true that at that time the first respondent was a minor. But this can make little difference if after he attained majority he accepted the position in which the appellant and Nagayya had already begun to live together. In our view it is not necessary that there should be a formal and express agreement to reunite. Such an agreement can be established by clear evidence of conduct incapable of explanation on any other footing. Such, in our view, is the position here established. That being so, the claim of the appellant to the exclusive ownership of the 63

properties in suit must be negatived. The appeal fails and must therefore be dismissed with costs.”

82. One more judgment on the concept of reunion which

need to be referred to is the judgment of Karnataka High

Court is M/s. Paramanand L. Bajaj, Bangalore Vs. The

Commissioner of Income Tax, Karnataka, II, Bangalore,

(1981) SCC Online Karnataka 131. Justice Rama Jois after

referring to Smritis and relevant judgments on the

subject laid down that reunion is the reversal of the

process of partition, following was held in paragraphs 8

and 12:­

“8. The basic proposition of Hindu Law on reunion is laid down in Brihaspati Smriti (Gaekwad’s Oriental Series, Vol. LXXXV­pp 214­215), also vide Smrti­ Chandrika III Vyavaharakanda Part II (1916) published by Government of highness the Maharaja of Mysore pp 702­703; English version J.R. Gharpura (1952) Part III pp 667­670).

वविभत्कक य पपन: वपततरर भतररततरर चचैक्ततर सवसस्थित: । वपतव्त ययेणर स्थिविर पतररीत्यर तत्ससंसष्त ट: स उच्यतये ॥

He who being once separated dwells again through affection with his father brought or paternal uncle is termed reunited.

64

ससंसष्त टटौ यटौ पपन: पतररीत्यतटौ परसपरभरवगिनटौ ।

When two coparceners have again become reunited through affection, they shall mutually participate in each others properties.

The view expressed by Devanna Bhatta, the author of Smriti­Chandrika on the text of Brihaspati is­

सहविरसये पपरुषरणरमरहत्य ससंसगिर्ग भरविरत धनदररयेण ससंसगिकर्ग विरच्य इतरीदसंतरव्य विहररवनवमतभभतरविच्छये दकरप नकदयेन वविभक्तरनरसं पभविर्गविदयेकररशरीकरणपयर्गन्तसससंसगिटौ न पपन: सहविरसमवतमवत मन्तव्यमत ।

Association not necessarily being by co­residence, the association is expressed to be through wealth; so by way of removing the distinguishing factor of that, it should be understood that the re­ association of the separated members shall be to the extent of pooling together(all) the wealth etc., as before, and not merely by a co­residence only.

Mitakshra on Yaj.II 138­139, which lay down special rule of inheritance at a partition among reunited members explains the effect of reunion as follows:

वविभक्तसं धनसं पपनवमशतररीकततसं ससंससष्त टसं तदसयरसतरीवत ससंसष्त टरी ।

Effects which had been divided and which are again mixed together are termed re­united. He, to whom such appertain, is a re­united parcener.

The aforesaid provisions have been the subject matter of interpretation in number 65

of cases.

12. On a consideration of the basic texts on the point and the views of commentators expressed in Mitakshara and Smriti­chandrika and the case law cited before us and having due regard to the real purpose and intent of the Hindu law governing HUF, it appears to us that provision for reunion has been provided for, for enabling erstwhile members of a Hindu undivided family, to come together and to form once again a joint family governed by Mitakshara law. The mutual love, affection arising from blood relationship and the desire to reunite proceeding therefrom, constitutes the very foundation of reunion. This is evident from the text of Brihaspati in which even the relationship of persons who could reunite is specified though some of the commentators have taken the view that it is only illustrative and not exhaustive and that reunion is possible even among persons not specified in the text of Brihaspati.

(See: Virmitrodaya, translated by Gopalachandra Sarkar (1879) pp 204­ 205; Vivadachintamani Gaekwad's Oriental

Series Vol. XCIX pp 288­289). But even so there is no controversy that reunion is possible only among persons who were on an earlier date members of a HUF. Reunion therefore is a reversal of the process of partion. Therefore, it is reasonable to take the view that reunion is not merely an agreement to live together as tenants in common, but is intended to bring about a fusion in interest and estate among the divided members of an erstwhile HUF so as to restore to them the status of HUF once again and therefore reunion creates right 66

on all the reuniting coparceners in the joint family properties which were the subject matter of partition among them to the extent they were not dissipated away before the date of reunion. That would be the legal consequence of a genuine reunion is forcefully brought about by the text of Brihaspati, which provides “where coparceners have again reunited through affection, they shall mutually participate in each others properties”. Mitakshara states that mixing up of divided properties is the effect of reunion. Therefore it follows, no coparcener, who is a party to a reunion and who admits reunion, shall be heard to contend that the property which he had got at an earlier partition and still with him has not become the property of the reconstituted HUF. But there can be no doubt that reunion, when disputed must be proved as any disputed question of fact and the circumstances that all the reuniting members have not brought back their properties to form the common­stock, may support the plea taken by any concerned party that there was no reunion. However, if reunion is admitted by all the parties to the reunion or it is proved, the share of the properties of reunited members got at an earlier partition and in their possession at the time of reunion becomes the properties of the joint family, notwithstanding the fact that some of them have failed to throw those properties into the common hotch pot, whether with or without the knowledge or consent of each other. It is a different aspect if reunion itself is not admitted by the persons who are parties to a reunion and it is not proved by the party pleading reunion, in which event there would be no reunion at 67

all.”

83. We may now notice the judgment of this Court dealing

with reunion in a Hindu Undivided Family. In Bhagwan

Dayal Vs. Reoti Devi, AIR 1962 SC 287, this Court

examined the principles of Hindu Law and principles of

Hindu Joint Family. In paragraph 16, it was held that

the general principle is that every Hindu family is

presumed to be joint unless the contrary is proved; but

this presumption can be rebutted by direct evidence or by

course of conduct. In the above case, one of the

questions was as to whether there was reunion between

members of the Joint Family after partition. This Court

quoted with approval the judgments of Privy Council in

Palani Ammal (supra) and laid down following in paragraph

22:­

“22. For the correct approach to this question, it would be convenient to quote at the outset the observations of the Judicial Committee in Palani Ammal v. Muthuvenkatacharla Moniagar [(1924) LR 52 IA 83, 86] :

“It is also quite clear that if a joint Hindu family separates, the family or any members of it may 68

agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved. The leading authority for that last proposition is Baldbux Ladhuram v. Rukhmabai [(1903) LR 30 IA 190] .”

It is also well settled that to constitute a reunion there must be an intention of the parties to reunite in estate and interest. It is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate with an intention to revert to their former status of members of a joint Hindu family. Such an agreement need not be express, but may be implied from the conduct of the parties alleged to have reunited. But the conduct must be of such an incontrovertible character that an agreement of reunion must be necessarily implied therefrom. As the burden is heavy on a party asserting reunion, ambiguous pieces of conduct equally consistent with a reunion or ordinary joint enjoyment cannot sustain a plea of reunion. The legal position has been neatly summarized in Mayne's Hindu law, 11th Edn., thus at p. 569:

“As the presumption is in favour of union until a partition is made out, so after a partition the presumption would be against a reunion. To establish it, it is 69

necessary to show, not only that the parties already divided, lived or traded together, but that they did so with the intention of thereby altering their status and of forming a joint estate with all its usual incidents. It requires very cogent evidence to satisfy the burden of establishing that by agreement between them, the divided members of a joint Hindu family have succeeded in so altering their status as to bring themselves within all the rights and obligations that follow from the fresh formation of a joint undivided Hindu family.”

As we give our full assent to these observations, we need not pursue the matter with further citations except to consider two decisions strongly relied upon by the learned Attorney­ General. Venkataramayya v. Tatayya [AIR 1943 Mad 538] is a decision of a Division Bench of the Madras High Court. It was pointed out there that “mere jointness in residence, food or worship or a mere trading together cannot bring about the conversion of the divided status into a joint one with all the usual incidents of jointness in estate and interest unless an intention to become reunited in the sense of the Hindu law is clearly established”. The said proposition is unexceptionable, and indeed that is the well settled law. But on the facts of that case, the learned Judges came to the conclusion that there was a reunion. The partition there was effected between a father and his sons by the first wife. One of the sons was a minor. The question was whether there was a 70

reunion between the brothers soon after the alleged partition. The learned Judges held that as between the sons there was never any reason for separation inter se, and that the evidence disclosed that on their conduct no explanation other than reunion was possible. They also pointed out that though at the time of partition one of the brothers was a minor, after he attained majority, he accepted the position of reunion. The observations relied upon by the learned Attorney­General read thus:

“In our view, it is not necessary that there should be a formal and express agreement to reunite. Such an agreement can be established by clear evidence of conduct incapable of explanation on any other footing.”

This principle also is unexceptionable. But the facts of that case are entirely different from those in the present case, and the conclusion arrived at by the learned Judges cannot help us in arriving at a finding in the instant case.”

84. The above observations indicates that this Court

also approved the Madras High Court judgment in Mukku

Venkataramayya(supra). Again this Court in Anil Kumar

Mitra and Ors. Vs. Ganendra Nath Mitra and Ors., (1997) 9

SCC 725 held that the acts of the parties may lead to the

inference that parties reunited after previous partition. 71

In paragraph 4, following observations have been made:­

“4. …………………………It is true that by the acts of the parties that even after the previous partition, they continued to be members of the joint family. But it should be by conduct and treatment meted out to the properties by the members of the family in this regard……………………………”

85. Now, we look into other materials on record. The

ancestral house of the parties was at Helmet,

Sedapalayam, Village Karumathampaty where three brothers

alongwith their father A.V. Kandaswamy used to live. DW2

in her statement has also stated that after she was

married with Rangasamy, she lived at ancestral house at

Sedapalayam. Further the three brothers in the year 1963

purchased the house site at Hemlet Somanur and

constructed a new house where three brothers with their

families shifted and lived at Somanur which become the

new home of the Joint Family consisting of three

brothers. The new house was constructed after purchasing

the land in the year 1963 and the families of the three

brothers started living at about in 1964, which clearly

indicate that intention of all the brothers was to live

jointly and continue as Joint Hindu Family. After 72

partition dated 07.11.1960, three branches have purchased

several immovable properties together, details of which

are as follows:­

i) Sale deed dated 09.06.1962 filed as exhibit A­42

in favour of (a) K.Rangasamy, (b) S.K.Kumarasamy

and (c) S.K.Chinmasamy of the land to the extent

of 5.6 acres in Karumathampaty village.

ii) Sale deed dated 16.10.1963 which has been filed

as exhibit A­43. By sale deed, property was

purchased for construction of house only which

fact was stated in the sale deed itself. The

sale deed was in the name of three brothers (a)

K.Rangasamy, (b) S.K.Kumarasamy and (c)

S.K.Chinmasamy.

iii) On 14.09.1972, by three sale deeds which were

filed as exhibit A­41, B­10 and B­11, huge

property situated at Coonoor namely High Field

estate was purchased in the name of

S.K.Kumarasamy, S.R.Somasundaram(minor in the

guardianship of his mother Mrs. Janakiammal),

S.R.Shammugha velcyutham in which estate the 73

family carried business.

86. The three branches continued joint business by

establishing firms and companies which was carried by

joint family in the partnership or by private company.

It was only the members of the family, who were

shareholders and directors. The purchase of various

immovable properties in the names of the three branches

clearly indicate the intention that all the three

branches are joint and they are purchasing the properties

in the name of all the three branches. After the death

of Rangasamy in the year 1967, it was S.K. Kumarasamy,

defendant No.1, who took the reins of the family being

the eldest. The plaintiff and defendant No.10, sons of

Ranagasamy were very young at the time when their father

died and thereafter they were under the guidance and

control of defendant No.1 and the materials on the record

indicate that it was the defendant No.1 under whose

guidance, all businesses were carried out. Even the

Suit No.37 of 1984 which was filed for partition of

properties was at the instance of defendant No.1, which

pleadings have been made by the plaintiff of that suit 74

when he filed written statement in Suit No. 1101 of 1987.

The plaintiff of Suit No.37 of 1984 Senthil Kumaravel in

his written statement in Suit No. 1101 of 1987 has

clearly stated that he filed the Suit No.37 of 1984 at

the instance of defendant No.1, which fact has also been

noted in paragraph 9 of the trial court’s judgment.

87. It is relevant to note that in suit No.1101 of 1987,

it was only D­1, who filed the written statement and

appeared in the witness box. D­4, S.K. Chinnasamy,

neither filed written statement nor came to the witness

box. It was D­1 who was pleading that joint family came

to the an end after partition dated 07.11.1960. D­1 in

his written statement and in his oral statement before

the court has come up with the case that there was

partition of the properties on 08.03.1981 and an

agreement was entered between the three branches and

compromise decree dated 06.08.1984 was passed to

implement the agreement which was entered in the year

1981. In the written statement filed by D­1 to D­3, in

paragraphs 16 and 17, following was pleaded by D­1:­ 75

"16....The arrangement to put an end to the co­ ownership had been arrived at even in 1981 and separate ownership had been agreed upon. Hence there could be no representation or assurance as alleged in the plaint.

17....As the mode of division and allotment of the various items had been agreed upon previously and the amounts were paid to the 4 th defendant the compromise was arrived at, an early date in a smooth manner and the decree was passed in terms thereof. The decree has also been registered. At the terms of the agreement were being incorporated in the compromise the parties were advised that it was not necessary to refer to the agreement dated 08.03.1981 in the compromise.”

88. The case of partition of all properties by agreement

dated 08.03.1981 standing in name of different branches

including the branch of Rangasamy was the case of

defendant No.1 who was the eldest member of the family

and has been denying the jointness of the family after

07.11.1960. D­1 S.K. Chinnasamy appeared in witness box

as DW­2. In his cross examination dated 10.04.1997, DW­2

stated: ­

"In March, 1981, we divided the common properties. On 08.03.1981 we reduced the same in to a written agreement, written on stamp paper, and we signed the same. Myself, 4 th, 7th and 10th 76

defendants and the plaintiff signed in it. Three copies were taken. The same has not been filed. All of us had signed in all the three copies. We took possession of our respective shares in the properties. After 08.03.1981 the common properties were not in joint possession and common enjoyment of all...”

89. Further in his cross­examination on 11.08.1997, D­2

further stated: ­

“...I had stated that division of all properties was done in 1981. The arrangement that was decided in 1981 was implemented in 1984 under the decree. Nothing new was done. As per the arrangement decided in March, 1981, Vasudev Mill having 16 acres of land and buildings and the machineries belonging to the mill were allotted to the branch of my elder brother...”

The trial court in its judgment dated 30.09.1997 in

paragraph 28 held:­

"28....the agreement that had been executed on 08.03.1981 is genuine and it is clear that it has come into force and that the shares which were more or less raised afresh were given to the plaintiff branch and that after the year 1981, the family of the 1st defendant, had relieved themselves from Swamy & Co., Rangasamy Brothers. Swamy Textiles, Rengavilas Warfing & Sizing Factory and that it had been proved through the oral evidence and the documentary proof and that through the Ex.A12 document, the plaintiff and the 10th defendant were in the management of the mill and the same had been 77

clearly proved and that after 08.03.81, the 1 st defendant had obtained the right in the estate and that it is clearly proved through Ex.B67 and that it is the stock register maintained in the Sciefield Tea Factory and that it would reveal that till March, 1981 and 10th defendant had signed in the register and that thereafter the 1st defendant had signed in the same is clearly revealed, in the Ex.B68, 69 gate pass also it is found as above and that from this, it is clearly revealed that after the 1981, the above said agreement was brought into force and that it is proved clearly and that it had been indicated on the side of the plaintiff that it is incorrect to state that the property at Coonoor, Veerakeralam is in the custody of the 1 st defendant and the properties at Somanur are lying with the 4th defendant and that the plaintiff had accepted in the evidence that he had not managed the property at Coonoor, and that from this it is clearly revealed that the above said agreement was brought into force.”

90. Further in paragraph 159, the trial court again held

that agreement of the year 1981 is genuine and it was

brought into force and the argument of DW­1 is found to

be acceptable.

91. The agreement dated 08.03.1981 was denied by the

plaintiff. The plaintiff's case was that at no point of

time, there was any agreement entered between parties in

the year 1981 to divide the properties standing in the 78

names of three branches. The agreement dated 08.03.1981

was not filed by D­1 in the evidence. The agreement was

not filed nor exhibited by the defendant, D­1.

92. In the written statement which was filed by D­1 in

O.S. No.37 of 1984, no plea was taken regarding agreement

dated 08.03.1981. It was for the first time in the

written statement filed by D­1 in suit No.1101 of 1987

that mention of agreement dated 08.03.1981 was made.

Neither any agreement dated 08.03.1981 was filed or

proved nor there is any other evidence on record to prove

the division of properties between three branches in the

year 1981.

93. It is the case of the defendant No.1 that the

compromise decree dated 06.08.1984 is nothing but

implementation of agreement dated 08.03.1981. It is,

thus, clear that the case of D­1 is that there was

partition of all properties standing in the names of

three branches and allocated to different branches on

08.03.1981, which has been subsequently implemented by 79

consent decree dated 06.08.1984. As per the case of

defendant, the Vasudeva Textiles Mills was given to the

branch of Rangasamy, property at Coonoor was taken by D1

and properties at Somnur by D­4.

94. When the D­1 comes with the case that there was

partition on 08.03.1981 of all immovable properties

standing in the names of three branches, which was

implemented on 06.08.1984, the conclusion is irresistible

that family was joint and had the three branches were not

part of joint Hindu family, there was no occasion for

attempting any partition on 08.03.1981 as claimed by D­1.

The fact that defendant No.1 is coming with the case that

there was partition on 18.03.1981 itself proves that

three branches were joint till then as per case of D­1

himself.

95. It is to be noted that plaintiff never admitted the

agreement dated 08.03.1981 or alleged partition of

08.03.1981, it is, thus, clear that parties remained

joint and properties standing in the names of three

branches remained joint till the consent decree was 80

passed on 06.08.1984.

96. Thus, in the year 1979 when residential property of

Tatabad was obtained in the name of defendant No.1, all

three branches were part of the joint Hindu family and

the house property purchased in the name of one member of

joint Hindu family was for the benefit of all.

97. Both the Courts below although accepted the partition

dated 18.03.1981 as pleaded by D­1 but erred in not

considering the consequence of such pleading. When

partition of all immovable and movable properties is

claimed on 08.03.1981, the conclusion is irresistible

that the family was joined till then. The theory set up

by D­1 that all the three branches were separate after

07.11.1960 is denied/belied by claim of partition on

08.03.1981.

98. Both the trial court and High Court have given much

emphasis on the fact that three branches were filing

separate Income­Tax Returns and Wealth Tax Returns after

1967. An individual member of joint Hindu Family can very

well file his separate Returns both under the Income Tax 81

Act as well as Wealth Tax Act and filing of such Returns

was not conclusive of status of the family. The

plaintiff's case throughout was that family continued to

be joint after 07.11.1960 and D­1 who alone had filed the

written statement and appeared in the witness box having

come with the case of partition on 08.03.1981 which he

claims to be implemented on 06.08.1984 by Compromise

Decree, it is proved that family was joint at least till

then, i.e., 08.03.1981 or 06.08.1984. Thus, in the year

1979, when the Tatabad residential property was acquired,

the three branches were joint.

99. The Tatabad residential property was for the benefit

of all the three branches which is further proved from

the fact that the consideration for the said amount was

not paid by DW­1 from his separate account or in cash.

The amount was drawn from the private limited company

Swamy and Swamy Plantation Private Limited in which all

the three branches were shareholders and Directors. The

Swamy and Swamy Plantation Company had not purchased the

residential property at Tatabad for the company. The

Swamy and Swamy plantation private company is not the 82

owner of the residential property and the residential

property at Tatabad is a joint family property for the

benefit of all the three branches.

100. We thus conclude that all three branches have equal

share in the Tatabad residential property, i.e., Item

No.X of Schedule 'B' of plaint in Original Suit No.1101

of 1987. This residential property being not a part of

O.S.No.37 of 1984, there is no bar in seeking partition

of the said property by the plaintiff. Accordingly we

declare that plaintiff/defendant No.7, defendant No.1 and

defendant No.4 are entitled to 1/3rd share jointly in the

aforesaid Item No.X of Schedule 'B' of the suit property

( 1/3rd share each to K. Rangasamy branch, S.K. Kumarasamy

branch and S.K. Chinnasamy branch). Accordingly, a

preliminary decree for partition shall be drawn for the

aforesaid property.

101. Civil Appeal No.1537 of 2016 and Civil Appeal

No.1538 of 2016 are partly allowed. Consequently, the

Original Suit No.1101 of 1987 stands decreed to the

extent indicated above, by granting a decree of partition

of Item No.X of Schedule 'B', i.e., “In Coimbatore 83

Registration on District, Coimbatore Corporation Limits,

Tatabad, Dr. Alagappa Chettiar Road, D.No.101, Extent

0.33 acres with 4500 sq.ft. built­up residential

building.”

102. Parties are at liberty to make an application

before the trial court for passing an appropriate final

decree and such application is to be disposed of by the

trial court in accordance with law.

103. Parties shall bear their own costs.

..........................J. ( ASHOK BHUSHAN )

..........................J. ( R. SUBHASH REDDY ) NEW DELHI, JUNE 30, 2021.