R. JANAKIAMMAL versus S.K. KUMARASAMY(DECEASED) THROUGH LEGAL REPRESENTATIVES AND OTHERS on 30 June 2021

[2021] 6 S.C.R. 333

R. JANAKIAMMAL

v.

S.K. KUMARASAMY(DECEASED) THROUGHLEGAL REPRESENTATIVES AND OTHERS

(Civil Appeal No. 1537 of 2016)

JUNE 30, 2021

[ASHOK BHUSHAN AND R. SUBHASH REDDY, JJ.]

Code of Civil Procedure, 1908: Or.XXIII r.3 – Compromisedecree – r.3 of Or. XXIII provides that where it is proved to thesatisfaction of the Court that a suit has been adjusted wholly or inpart by any lawful agreement or compromise, the Court shall ordersuch agreement or compromise to be recorded and pass a decree inaccordance therewith – r.3 uses the expression “lawful agreementor compromise” – A conjoint reading of ss.10, 13 and 14 of IndianContract Act indicates that when consent is obtained by coercion,undue influence, fraud, misrepresentation or mistake, such consentis not free consent and the contract becomes voidable at the optionof the party whose consent was caused due to coercion, fraud ormisrepresentation – An agreement, which is void or voidable underthe Indian Contract Act, shall not be deemed to be lawful as isprovided by Explanation to r.3 of Or.XXIII – Contract Act, 1872.

Code of Civil Procedure, 1908: Or.XXIII r.3A – In the plaint,plaintiff pleaded that compromise recorded on 06.08.1984 was notlawful compromise having been obtained by fraud andmisrepresentation – Plaintiff’s case was that they were representedby D1 that the compromise was entered only to save the familyproperty since the plaintiff has given personal guarantee to theBank for obtaining loan for business – Pleadings clearly made outthe case of the plaintiff that the consent which he gave forcompromise by signing the compromise deed was not free consent –The compromise, thus, became voidable at the instance of the plaintiff– Thus, bar under r.3A shall be attracted.

Consent decree: Challenge against – A party to a consentdecree based on a compromise to challenge the compromise decreeon the ground that the decree was not lawful, i.e., it was void orvoidable has to approach the same court, which recorded the

333

A

B

C

DE

F

G

H

Acompromise and a separate suit challenging the consent decree hasbeen held to be not maintainable.

Hindu law: Joint Hindu Family – Under Hindu Law, anymember of the joint family can separate himself from joint family –The intention of the parties to terminate the status of joint family isBa relevant factor to determine the status of Hindu Undivided Family– In the instant case, real intendment of three branches to partitiontheir properties was not that they did not want Hindu UndividedFamily to continue rather the said partition was with object to getaway from application of Land Ceiling Act, 1961 – Partition Deeddated 07.11.1960 being a registered Partition Deed between threeCbranches, the same cannot be ignored – Properties admittedly weredivided in three branches by the said partition – However evenafter 07.11.1960, the family continued as a Joint Family – Therewas reunion between three brothers to revert to the status of JointHindu Family, which is amply proved from the acts and conducts ofDthe parties subsequent to 07.11.1960 – The purchase of variousimmovable properties in the names of the three branches clearlyindicated the intention that all the three branches were joint andthey were purchasing the properties in the name of all the threebranches – Plaintiff never admitted the agreement dated 08.03.1981or alleged partition of 08.03.1981 – It is, thus, clear that partiesEremained joint and properties standing in the names of three branchesremained joint till the consent decree was passed on 06.08.1984 –Thus, in the year 1979 when residential property of Tatabad wasobtained in the name of defendant No.1, all three branches werepart of the joint Hindu family and the house property purchased in

Conclusion

Fthe name of one member of joint Hindu family was for the benefit ofall – Both the Courts below although accepted the partition dated18.03.1981 as pleaded by D-1 but erred in not considering theconsequence of such pleading – When partition of all immovableand movable properties is claimed on 08.03.1981, the conclusionis irresistible that the family was joined till then – Thus, the theoryGset up by D-1 that all the three branches were separate after07.11.1960 is denied/belied by claim of partition on 08.03.1981.

Partly allowing the appeals, the Court

HELD: 1.1 Order XXIII Rule 3 provides for compromiseHof suit. In Rule 3 amendments were made by Act No. 104 of 1976

R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGHLEGAL REPRESENTATIVES

by which a proviso and an explanation was added. By the sameamendment Act No.104 of 1976, a new Rule, i.e., Rule 3A wasadded providing that no suit shall lie to set aside a decree on theground that the compromise on which the decree is based wasnot lawful.” [Paras 39, 40][355-E; 356-B-C]

1.2 Determination of disputes between persons and bodiesis regulated by law. The legislative policy of all legislatures is toprovide a mechanism for determination of dispute so that disputemay come to an end and peace in society be restored. Legislativepolicy also aims for giving finality of the litigation, simultaneouslyproviding higher forum of appeal/revision to vend the grievancesof an aggrieved party. Rule 3A which has been added by aboveamendment provides that no suit shall lie to set aside a decreeon the ground that the compromise on which the decree is basedwas 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 anadjustment or satisfaction has been arrived at, the same shall bedecided by the Court which recorded the compromise. Rule 3 ofOrder XXIII provided that where it is proved to the satisfactionof the Court that a suit has been adjusted wholly or in part by anylawful agreement or compromise, the Court shall order suchagreement or compromise to be recorded and pass a decree inaccordance therewith. Rule 3 uses the expression “lawfulagreement or compromise”. The explanation added byamendment provided that an agreement or a compromise whichis void or voidable under the Indian Contract Act, 1872, shall notbe deemed to be lawful.” [Para 41][356-C-G]

1.3 Reading Rule 3 with Proviso and Explanation, it is clearthat an agreement or compromise, which is void or voidable,cannot be recorded by the Courts and even if it is recorded theCourt on challenge of such recording can decide the question.The Explanation refers to Indian Contract Act. The IndianContract Act provides as to which contracts are void or voidable.Section 10 of the Indian Contract Act provides that all agreementsare contracts if they are made by the free consent of partiescompetent to contract, for a lawful consideration and with a lawfulobject, and are not hereby expressly declared to be void. A

A

B

C

D

E

F

G

H

Aconsent when it is caused due to coercion, undue influence, fraud,misrepresentation or mistake is not free consent and suchagreement shall not be contract if free consent is wanting. Aconjoint reading of Sections 10, 13 and 14 of Indian Contract Actindicates that when consent is obtained by coercion, undueinfluence, fraud, misrepresentation or mistake, such consent isBnot free consent and the contract becomes voidable at the optionof the party whose consent was caused due to coercion, fraud ormisrepresentation. An agreement, which is void or voidable underthe Indian Contract Act, shall not be deemed to be lawful as isprovided by Explanation to Rule 3 of Order XXIII. [Paras 42, 43,C44][356-G-H; 357-A, D; 358-A-B]

1.4 It is clear from the plaint that plaintiff pleaded thatcompromise recorded on 06.08.1984 was not lawful compromisehaving been obtained by fraud and misrepresentation. Theplaintiff’s case was that they were represented by D1 that theDcompromise is being entered only to save the family propertysince the plaintiff has given personal guarantee to the PunjabNational Bank for obtaining loan for Vasudeva Mills. Pleadingsclearly make out the case of the plaintiff that the consent whichhe gave for compromise by signing the compromise was not freeconsent. The compromise, thus, become voidable at the instanceEof the plaintiff. Rule 3A bars the suit to set aside the decree onthe ground that compromise on which decree was passed wasnot lawful. The word “lawful” has been used in Rule 3 and in theExplanation of Rule 3 states that “an agreement or compromisewhich is void or voidable under the Indian Contract Act,1872Fshall not be deemed to be lawful……………….;” Thus, the barunder Rule 3A shall be attracted if compromise on the basis ofwhich decree was passed was void or voidable. [Paras 47, 48,49][359-A-E]

Banwari Lal v. Chando Devi (Smt.) though LRs. andGAnr. (1993) 1 SCC 581 : [1992] 3 Suppl. SCR 524 ;Pushpa Devi Bhagat (Dead) Through LR. Sadhna Rai(Smt.) v. Rajinder Singh and Ors. (2006) 5 SCC 566: [2006] 3 Suppl. SCR 370 ; R. Rajanna v. S.R.Venkataswamy and Ors. (2014) 15 SCC 471 : [2014]

H

14 SCR 535; Triloki Nath Singh v. Anirudh Singh(Dead) through Legal Representatives and Ors. (2020)6 SCC 629 – relied on.

1.5 A party to a consent decree based on a compromise tochallenge the compromise decree on the ground that the decreewas not lawful, i.e., it was void or voidable has to approach thesame court, which recorded the compromise and a separate suitchallenging the consent decree has been held to be notmaintainable. In Suit No.1101 of 1987, the plaintiff prayed for adeclaration declaring that the decree passed in O.S. No. 37 of1984 is sham and nominal, ultravires, collusive, unsustainableinvalid, unenforceable and not binding on the plaintiffs. On thebasis of grounds which have been taken by the plaintiff in SuitNo.1101 of 1987, the only remedy available to the plaintiff was toapproach the court in the same case and satisfy the court thatcompromise was not lawful. There was no error in the judgmentof trial court and High Court holding that Suit No.1101 of 1987was barred under Order XXIII Rule 3A. The compromise decreedated 06.08.1984, thus, could not have been questioned in SuitNo. 1101 of 1987. [Paras 55 and 56][364-C-H]]

2.1 The case of the appellant is that the partition deed dated07.11.1960 was entered between three brothers to save theproperties from land ceiling laws. The relevant date under theLand Ceiling Act was 07.04.1960 on which date the extent ofproperties in hands of a person has to be determined and sincethree brothers, who consisted members of joint family on therelevant date had more than the land which was permitted to aperson, a partition was entered to save the properties from landceiling laws. This argument was rejected by the trial court holdingthat it has not been proved that land ceiling laws in any manneraffected the extent of land in the hands of three brothers.[Para 74][369-H; 370-A-B]

2.2 Section 5 of the Land Ceiling Act provide for ceilingarea. According to sub-section (1)(a) of Section 5, the ceiling areain the case of every person and in the case of every familyconsisting of not more than five members was 30 standard acres.Figure of 30 standard acres was subsequently reduced to 15

A

BC

D

EF

G

H

Astandard acres by Tamil Nadu Act No. 37 of 1972. Section 5(1)(b)further provided that ceiling area in the case of every familyconsisting of more than five members shall be 30 standard acrestogether with an additional 5 standard acres for every member ofthe family in excess of five. In event, the ceiling area is determinedtreating the Hindu Undivided Family, joint family consisting ofBthree brothers, the ceiling area shall be 30 standard acres bywhich 5 acres additional for every member of the family in excessof five. The land which was possessed by the three brothers inthe year 1960 was more than 86.52 acres, which extent wasreceived by the three brothers in 1953 partition. Thereafter threeCbrothers have acquired further land. In case, three brothers before07.04.1960 partition their joint family, then each person will beentitled to 30 acres. Thus, partition of the properties among threebrothers was clearly beneficial to the properties possessed bythe three brothers. The view of the trial court that it is not proved that any benefit under the Ceiling of Land Act could have beenDobtained by three brothers is clearly untenable. The viewexpressed by the trial court was not after examining theprovisions of Act, 1961. Further the statement in the partitionthat three brothers have already divided the immovableproperties on 01.04.1960 clearly was with intent to get away fromEAct, 1961 since the relevant date under the Ceiling Act was07.04.1960. [Para 75][370-D-H]

2.3 Under Hindu Law, any member of the joint family canseparate himself from joint family. The intention of the parties toterminate the status of joint family is a relevant factor to determineFthe status of Hindu Undivided Family. It is clear that realintendment of three branches to partition their properties wasnot that they did not want Hindu Undivided Family to continuerather the said partition was with object to get away fromapplication of Ceiling Act, 1961. The intention of the parties whenthey partitioned their properties in the year 1960 is a relevantGfact. [Para 76][371-A-B]

2.4 However, the Partition Deed dated 07.11.1960 being aregistered Partition Deed between three branches, the samecannot be ignored. Properties admittedly were divided in three H

branches by the said partition. The question is as to whetherafter 07.11.1960, the family continued as a Joint Family or thestatus of joint family came to an end on 07.11.1960. The case ofthe appellant which was also pressed by the High Court was thateven if partition dated 07.11.1960 is accepted; the parties livedin a joint family and continued their joint family status. Thecontention advanced by the appellant was that there was reunionbetween three brothers to revert to the status of Joint HinduFamily, which is amply proved from the acts and conducts of theparties subsequent to 07.11.1960. The concept of reunion in HinduLaw is well known. Hindu Joint Family even if partitioned canrevert back and reunite to continue the status of joint family.[Paras 77 and 78][371-C-E]

Mulla on Hindu Law, 22[nd] Edition – referred to.

Mukku Venkataramayya v. Mukku Tatayya and Ors.AIR 1943 Mad. 538; M/s. Paramanand L. Bajaj,Bangalore v. The Commissioner of Income Tax,Karnataka, II, Bangalore, (1981) SCC OnlineKarnataka 131 J; Bhagwan Dayal v. Reoti Devi AIR1962 SC 287: [1962] 3 SCR 440; Anil Kumar Mitraand Ors. v. Ganendra Nath Mitra and Ors. (1997) 9SCC 725 [1996] 9 Suppl. SCR 338; Palani Ammal v.Muthuvenkatacharla Moniagar and Ors. AIR 1925 PC 49– referred to

3.1 The ancestral house of the parties was at Helmet,Sedapalayam, Village Karumathampaty where three brothersalongwith their father used to live. DW2 in her statement hasalso stated that after her marriage, she lived at ancestral houseat Sedapalayam. Further the three brothers in the year 1963purchased the house site at Hemlet Somanur and constructed anew house where three brothers with their families shifted andlived at Somanur which became the new home of the Joint Familyconsisting of three brothers. The new house was constructedafter purchasing the land in the year 1963 and the families of thethree brothers started living at about in 1964, which clearlyindicate that intention of all the brothers was to live jointly and A

B

C

D

E

F

G

H

Acontinue as Joint Hindu Family. After partition dated 07.11.1960,three branches have purchased several immovable propertiestogether. [Para 85][379-D-F]

3.2 The three branches continued joint business byestablishing firms and companies which was carried by joint familyBin the partnership or by private company. It was only the membersof the family, who were shareholders and directors. The purchaseof various immovable properties in the names of the threebranches clearly indicate the intention that all the three branchesare joint and they are purchasing the properties in the name ofall the three branches. After the death of Rangasamy in the yearC1967, it was defendant No.1, who took the reins of the familybeing the eldest. The plaintiff and defendant No.10, sons ofRanagasamy were very young at the time when their father diedand thereafter they were under the guidance and control of D-1and the materials on the record indicate that it was D-1 underDwhose guidance, all businesses were carried out. Even the SuitNo.37 of 1984 which was filed for partition of properties was atthe instance of defendant No.1, which pleadings have been madeby the plaintiff of that suit when he filed written statement in SuitNo. 1101 of 1987. The plaintiff of Suit No.37 of 1984, D-6 in hiswritten statement in Suit No. 1101 of 1987 has clearly stated thatEhe 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’sjudgment. [Para 86][380-C-F]

3.3 In suit No.1101 of 1987, it was only D-1, who filed thewritten statement and appeared in the witness box. D-4 neitherFfiled written statement nor came to the witness box. It was D-1who was pleading that joint family came to the an end after partitiondated 07.11.1960. D-1 in his written statement and in his oralstatement before the court has come up with the case that therewas partition of the properties on 08.03.1981 and an agreementGwas entered between the three branches and compromise decreedated 06.08.1984 was passed to implement the agreement whichwas entered in the year 1981. [Para 87][380-G-H; 381-A]

3.4 The agreement dated 08.03.1981 was denied by theplaintiff. The plaintiff’s case was that at no point of time, thereH

was any agreement entered between parties in the year 1981 todivide the properties standing in the names of three branches.The agreement dated 08.03.1981 was not filed by D-1 in theevidence. The agreement was not filed nor exhibited by thedefendant, D-1. In the written statement which was filed by D-1in O.S. No.37 of 1984, no plea was taken regarding agreementdated 08.03.1981. It was for the first time in the written statementfiled by D-1 in suit No.1101 of 1987 that mention of agreementdated 08.03.1981 was made. Neither any agreement dated08.03.1981 was filed or proved nor there is any other evidenceon record to prove the division of properties between threebranches in the year 1981. [Paras 91, 92][382-G-H; 383-A-B]

3.5 It is the case of the defendant No.1 that the compromisedecree dated 06.08.1984 is nothing but implementation ofagreement dated 08.03.1981. It is, thus, clear that the case of D-1 is that there was partition of all properties standing in the namesof three branches and allocated to different branches on08.03.1981, which has been subsequently implemented byconsent decree dated 06.08.1984. As per the case of defendant,the Vasudeva Textiles Mills was given to the branch ofRangasamy, property at Coonoor was taken by D1 and propertiesat Somnur by D-4. [Para 93][383-B-C]

3.6 When the D-1 comes with the case that there waspartition on 08.03.1981 of all immovable properties standing inthe names of three branches, which was implemented on06.08.1984, the conclusion is irresistible that family was joint andhad the three branches were not part of joint Hindu family, therewas no occasion for attempting any partition on 08.03.1981 asclaimed by D-1. The fact that defendant No.1 is coming with thecase that there was partition on 18.03.1981 itself proves that threebranches were joint till then as per case of D-1 himself. [Para94][383-D-E]

3.7 Plaintiff never admitted the agreement dated 08.03.1981or alleged partition of 08.03.1981, it is, thus, clear that partiesremained joint and properties standing in the names of threebranches remained joint till the consent decree was passed on06.08.1984. Thus, in the year 1979 when residential property of AB

C

D

E

F

G

H

ATatabad was obtained in the name of defendant No.1, all threebranches were part of the joint Hindu family and the houseproperty purchased in the name of one member of joint Hindufamily was for the benefit of all. Both the Courts below althoughaccepted the partition dated 18.03.1981 as pleaded by D-1 buterred in not considering the consequence of such pleading. WhenBpartition of all immovable and movable properties is claimed on08.03.1981, the conclusion is irresistible that the family was joinedtill then. The theory set up by D-1 that all the three brancheswere separate after 07.11.1960 is denied/belied by claim ofpartition on 08.03.1981.[Paras 95, 96, 97][383-E-H]C

3.8 Both the trial court and High Court have given muchemphasis on the fact that three branches were filing separateIncome-Tax Returns and Wealth Tax Returns after 1967. Anindividual member of joint Hindu Family can very well file hisseparate Returns both under the Income Tax Act as well as WealthDTax Act and filing of such Returns was not conclusive of status ofthe family. The plaintiff’s case throughout was that familycontinued to be joint after 07.11.1960 and D-1 who alone hadfiled the written statement and appeared in the witness box havingcome with the case of partition on 08.03.1981 which he claims tobe implemented on 06.08.1984 by Compromise Decree, it isEproved that family was joint at least till then, i.e., 08.03.1981or 06.08.1984. Thus, in the year 1979, when the Tatabadresidential property was acquired, the three branches were joint.[Para 98][384-A-C]

3.12 The Tatabad residential property was for the benefitFof all the three branches which is further proved from the factthat the consideration for the said amount was not paid by DW-1from his separate account or in cash. The amount was drawn fromthe private limited company Swamy and Swamy Plantation PrivateLimited in which all the three branches were shareholders andGDirectors. The Swamy and Swamy Plantation Company had notpurchased the residential property at Tatabad for the company.The Swamy and Swamy plantation private company is not the ownerof the residential property and the residential property at Tatabadis a joint family property for the benefit of all the three branches.[Para 99][384-C-E]H

R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH

A

5. All three branches have equal share in the TatabadAresidential property, i.e., Item No.X of Schedule ‘B’ of plaint inOriginal Suit No.1101 of 1987. This residential property beingnot a part of O.S.No.37 of 1984, there is no bar in seeking partitionof the said property by the plaintiff. Accordingly, plaintiff/defendantNo.7, defendant No.1 and defendant No.4 are entitled to 1/3[rd]Bshare jointly in the aforesaid Item No.X of Schedule ‘B’ of thesuit property. [Para 100][384-E-G]

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1537of 2016

E

From the Judgment and Order dated 23.11.2011 of the High Courtof Judicature of Madras in A.S. No.281 of 2000.

With

Civil appeal no. 1538 of 2016

F

V. Giri, Sr. Adv., Gaurav Agrawal, S. Ravi Shankar, Vikas Mehta,Varun Singh, Ms. Ankita Gupta, Advs. for the Appellant.

Kapil Sibal, S. Nagamuthu,V. Giri, Sr. Advs., Ms. ShobhaRamamoorthy, Arunabh Chowdhury, Ankur Chawla, Ms. Pallavi Langar,Arun Mohan, Nizam Pasha, R. K. Mohit Gupta, Karthik, V. P.Sengottuvel, S. Ravi Shankar, Ms. Yamunah Nachiar, K. R. Nishanth,GAkshay Kumar A.,Vikas Mehta, Varun Singh, Ms. Ankita Gupta,Mrs. Prabha Swami, K.V. Mohan, Rahul Pratap, Advs. for theRespondents.

H

AThe Judgment of the Court was delivered by ASHOK BHUSHAN, J.

These two appeals have been filed challenging the Division Benchjudgment dated 23.11.2011 of Madras High Court dismissing the A.S.No.281 of 2000 and A.S. No.332 of 1999 filed by the appellantsBrespectively. The parties shall be referred to as described in O.S.No.1101of 1987 (S.R. Somasundaram vs. S.K. Kumarasamy). The appellant, R.Janakiammal in C.A.No.1537 of 2016 was defendant No.7 in O.S.No.1101of 1987 whereas S.R. Somasundaram, appellant in C.A.No.1538 of 2016was the plaintiff in O.S.No.1101 of 1987. Janakiammal is the mother ofCSomasundaram. Relevant facts and events necessary to decide thesetwo appeals are:

2. The parties came from Pattanam, Coimbatore District, TamilNadu. We may notice the Genealogical Tree of the family which is tothe following effect:

D

E

F

G

H

3. The plaintiff, S.R. Somasundaram and his mother, Janakiammalwho are the appellants in these two appeals belong to branch ofRangasamy Gounder whereas other two branches are of S.K.Kumarasamy,D-1 and S.K. Chinnasamy,D-4. Three brothers with theirfather A.V. Kandasamy Gounder were residing as a joint family inancestral house at Sadapalayam Hemlet, Karumathampatti Village,Palladam Taluka, District Coimbatore. Rangasamy and others receiveda land measuring 86.72 acres by partition deed executed on 27.09.1953between late A.V. Kandasamy Gounder and Ponnammal, junior wife ofKandasamy Gounder, his first wife, Senniamalai, son of KandasamyGounder 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 1954-55, threebrothers purchased various properties and started rice mill business calledLaxmi Rice Mills and also started Swamy Textiles in 1976, a matchfactory, a slate factory, saw mills, timber business and power loom outof joint family funds. On 07.11.1960 a partition deed was registeredbetween three brothers with respect to the properties allotted to them asper registered partition deed dated 27.09.1953 along with the propertiespurchased by three brothers in the ratio of 1/3rd each. Even after partition,three brothers continued to live under the same roof and carried onbusiness as partners. In the year 1963 they purchased housing site bysale deed dated 16.10.1963 in Somanur Hemlet, Village Karumathampatti,and constructed a house therein and all the three brothers started livingin Somanur house from the year 1964 and carried on their different jointbusiness. On 27.05.1967, Rangasamy Gounder died in a road accidentleaving behind his widow, Janakiammal, two sons, S.R. Somasundaram,S.R. Shanmugavelayutham and one daughter, S.Saraswathy. From 1968to 1978 various properties were purchased in the name of three branches.The family also purchased in the year 1972 Tea Estate known as HighField Estate in the name of defendant Nos.1, 4, 10 and plaintiff. A PrivateLimited Company known as Swamy and Swamy Plantations (P) Ltd.was also promoted with family members being shareholders andDirectors.

5. In the year 1975, 50 acres of lands were purchased in Vedapattivillage, in the name of defendant Nos.1, 4, 10 and plaintiff. In the year1978 a palatial Bungalow was purchased in Tatabad, Coimbatore.Defendant No.10, who was Captain in the Indian Army, came back to AB

C

D

E

F

G

H

ACoimbatore after leaving his job to look after the family business andproperties. From the year 1973, he started looking after the properties atCoonoor. Somasundaram, the plaintiff started his studies at Coimbatoreand Chennai and after completing his studies came back to Coimbatorein the year 1979.

B6. In Coimbatore one Vasudeva Industries Ltd., which was inliquidation since 1967 was taken on lease from official liquidator ofMadras 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 Managerto look after the affairs of Vasudeva Industries Limited. An applicationCwas filed in the year 1981 in Company Petition No.39 of 1956. DefendantNo.1, S.K. Kumarasamy filed an affidavit in support of CompanyApplication No.320 of 1981 praying that liquidation proceedings be closed.On 30.04.1981, the High Court of Madras passed order directingconvening of a meeting of the creditors. In the meeting of creditors aDdraft scheme submitted was approved on 09.06.1981, Madras High Courtpassed an order on 22.01.1982 allowed the application filed by defendantNo.1, permanently stayed the liquidation proceedings and permittedrunning of Vasudeva Industries Ltd. by the Board of Directors. On03.02.1982 a Resolution was passed to bring the mills under the controlof the Board of Directors, including the plaintiff, defendant Nos.1, 4 andE10. The name of Vasudeva Industries Ltd. was changed to VasudevaTextiles Mills. In the year 1983 Vasudeva Textiles Mills( hereinafterreferred to as “Mills”) obtained loan from Punjab National Bank in whichpersonal guarantee was also given by the plaintiff and defendant No.10,who were Directors. The plaintiff and defendant No.10 were also in theFyear 1984 elected as Managing Directors. The Swamy & Swamy Co.which was earlier running the Mill on lease was dissolved in the year1984. The Mills although started running by the Board of Directors butin the years 1983, 1984 and 1985 accumulated losses were more thanthe profit of Mills.

G7. On 19.01.1984, C. Senthil Kumaravel, defendant No.6 and sonof 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.37of 1984 Senthil Kumaravel, the plaintiff came with the case that theplaintiff and defendant Nos.1, 3,4, 8,9 and 10 were members of jointfamily. In O.S.No.37 of 1984, Janakiammal was impleaded as defendantHNo.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 07.11.1960between three branches, defendant Nos.1, 4 and the deceased K.Rangasami continued to live jointly and did business jointly. All the threebranches lived jointly. In the plaint, it was further stated that from thesavings of the income and by mortgaging ancestral property, the capitalnecessary for the business was found and the business was expandedfrom time to time. It was further pleaded that plaintiff, Senthil Kumaravelwas entitled to 1/6th share. Defendant Nos.8 to 11, representing thebranch of deceased K. Rangasami, were entitled jointly 1/3rd share inall suit properties. The plaintiff in suit had prayed following reliefs:

“a)to divide the immovable suit properties described in theschedules ‘B’, ‘D’ and ‘E’ and items 1 to 9 in Schedule ‘C’hereunder into six equal shares by metes and bounds withreference to good and bad soil and allot one such share tohim with separate possession; b)to allot 1/6th share in the shares mentioned in item 10 and11 of Schedule ‘C’ and item 2 of Schedule ‘D’ describedhereunder;

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

8. The plaint Schedule ‘B’ included ancestral land in Palladamand Samalapuram villages with house at Sadapalayam Helmet. Schedule‘C’ included various immovable properties and included residentialbuilding, shares in M/s. Swamy and Swamy Plantations (P) Ltd. Coonoor,and shares of M/s. Vasudeva Industries Ltd. were also mentioned asitem Nos. 10 and 11 of Scheduled ‘C’. In the above suit only defendantNos.1 to 3 of the suit, namely, S.K. Kumarasamy, Sundarambal, wife ofS.K. Kumarasamy and minor Kandavadivel son of S.K. Kumarasamyfiled their written statements. In the written statement, it was pleadedthat no doubt some properties have been acquired jointly in the names ofthe defendant Nos.1, 3, 4,9 and 10, but they must be deemed to be onlyco-sharers in respect of those properties. It was pleaded that threebranches were allotted shares in 1960 partition and plaint case that partiescontinued to live jointly was denied.

9. In O.S.No.37 of 1984, an application under Order XXIII Rule3 was filed on 06.08.1984 by the plaintiff containing signatures of plaintiffand defendants. In the application under Order XXIII Rule 3 in Schedule A

B

C

D

EF

G

H

A‘A’ to Schedule ‘J’, various items of properties were listed and allocatedto different members of the family. On the basis of application underOrder XXIII Rule 3, Sub-ordinate Judge, Coimbatore passed an orderdated 6.8.1984 and directed for preparation of decree on the basis ofcompromise petition.B10. In the compromise decree although various agriculturalproperties, house properties and shares were allotted to two otherbranches, i.e., branches of S.K. Kumarasamy and S.K. Chinnasamybut the branch of Rangasamy was allocated only shares in VasudevaIndustries which was under liquidation and taken under the orders ofMadras High Court dated 21.01.1982 to be run by the Board of Directors.C

11. Minor children of defendant No.10 filed O.S.No. 827 of 1987through their mother challenging the compromise decree dated06.08.1984 on the ground that they were not parties thereto. On03.08.1987 O.S. No.1101 of 1987 was filed by both the sons ofRangasamy, i.e., S.R. Shanmugnavelayutham and S.R. Somasundaram.DIn O.S. No.1101 of 1987 defendant Nos.1,2 and 3 filed their writtenstatements where it was pleaded that there was agreement on 08.03.1981between the three branches where defendant No.1 was to pay Rs. 4lacs to defendant No.4 and plaintiff was to pay Rs. 7 lacs to defendantNo.4 and since payment was not made to defendant No.4 suit was filedEthrough his son. It was further pleaded that compromise dated 06.08.1984was 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 statingthat they had entered into the compromise with defendant No.1 henceseeking permission to withdraw the suit. On 10.02.1993, the O.S. No.827of 1987 was withdrawn, on the same date Shanmugavelayuthem whoFwas the first plaintiff in O.S.No.1101 of 1987 withdrew himself from thesuit and was transposed as defendant No.10 in the suit. The writtenstatement was filed by Janakiammal, defendant No.8 supporting theplaintiff’s case and also praying for partition of her share. SenthilKumaravel, who was plaintiff in Suit No.37 of 1984, filed a writtenstatement in O.S.No.1101 of 1987 where he stated that he filed SuitGNo.37 of 1984 at the instance of S.K. Kumarasamy, defendant No.1and decree dated 06.08.1984 was sham and nominal, and was not to begiven effect to. Additional written statements were filed by defendantNos.1 to 3. Defendant No.10 also filed written statement supporting thecase of defendant No.1. Reply was filed by plaintiff, Somasundaram toHthe 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. A-1 to A-55. On the side of defendants, four witnesses were examined.Janakiammal appeared as DW.2 whereas S.K. Kumarasamy appearedas DW.1. Exh.B-1 to B-104 were marked on behalf of the defendants.Exh. X-I to X-27 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 maintainableunder Order XXIII Rule 3A of the CPC. The trial court vide its judgmentdated 30.09.1997 dismissed the suit. The trial court upheld the plea ofdefendant Nos.1 to 3 that O.S.No.1101 of 1987 was barred by OrderXXIII Rule 3A CPC. The trial court also upheld the partition deed dated07.11.1960 and the agreement dated 08.03.1981. The trial court heldthat after the year 1960 the entire family was not living as joint familyand all the three branches are co-owners as far as properties areconcerned and were running partnership businesses. Challenging thejudgment of the trial court dismissing the suit two appeals were filed inthe High Court. A.S.No.332 of 1999 was filed by Somasundaram, theplaintiff and A.S. No.281 of 2000 was filed by Janakiammal defendantNo.8.

14. The High Court has noticed the point for determination in theappeal, i.e., whether O.S.No.1101 of 1987 is maintainable in the light ofthe provisions contained in Order XXIII Rule 3A of the CPC. The HighCourt, however, observed that appeals could be disposed of accordingto the finding to be recorded on the aforesaid point for consideration,however, it has not formulated any other point for consideration thoughextensive arguments have been made by the respective counsel. It isuseful to reproduce paragraphs 163 and 164 of the judgment of the HighCourt, which are to the following effect:

“163. The point for determination that arises for considerationin the above appeals is as to whether the suit seeking to declarethe decree passed in O.S.No.37 of 1984 on the file of the SubCourt, Coimbatore, is sham and nominal, ultra-vires, collusive,unsustainable, invalid, unenforceable and not binding on the plaintiff,is maintainable in the light of the provisions contained in Order 23Rule 3 of the CPC and Order 23 Rule 3-A of the CPC?

164. As the appeals could be disposed of on the basis of the findingto be recorded on the aforesaid point for determination, we have not A

B

C

D

EF

G

H

Aformulated any other point for determination, though extensive argumentshave been made by the respective counsel as to whether the partitioneffected under Ex.B-26, dated 07.11.1960 between Rangaswamy (fatherof the plaintiff), Kumaraswamy (D-1) and Chinnaswamy (D-4) wasacted upon or not; whether there was a joint family among the threebranches after 07.11.1960; whether the various businesses run underBdifferent partnership firms are the joint family businesses.”

15. The High Court after considering the submissions of therespective counsel came to the conclusion that compromise decree dated06.08.1984 in Suit No.37 of 1984 was valid, the plaintiff failed to provethat any fraud was played. The plaintiff, further, failed to prove that theyCgave any guarantee in the year 1984 for taking loan from Punjab NationalBank. Hence, basis of the suit that they signed the compromise deed onthe representation of defendant No.1 and that the plaintiff and defendanthaving given personal guarantee for loan obtained for Vasudeva IndustriesLtd., to save family properties from claim of the Bank, the properties beDkept only in the name of defendant No.1 and defendant No.4 but theright of the plaintiff and defendants will be held intact.

16. The High Court held that it has not been proved that anypersonal guarantee was given by the plaintiff, the very groundpleadedby the plaintiff is knocked out. The High Court further held that suit wasEbarred by Order XXIII Rule 3A CPC and only remedy available was toquestion the compromise decree in the same suit. The High Courtdismissed 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, learnedFsenior counsel for the appellants. Shri Kapil Sibal, learned senior counselhas appeared for contesting respondents. Shri S. Nagamuthu, learnedsenior counsel has appeared for defendant No.11 and other defendants.

18. Shri V.Giri, learned senior counsel appearing for R. Janakiammalsubmits that the compromise decree dated 06.08.1984 in Suit No.37 of1984 is unfair, inequitable and fraudulent. Shri Giri submits thatGJanakiammal who was defendant No.8 in Suit No.37 of 1984 was notaware of the compromise application or its terms. Janakiammal is awidow only knowing Tamil, she signed the English written papers whichwas brought to her by DW-2, wife of D-1. She never engaged anycounsel. Shri P.R. Thirumalnesan, learned counsel, was never engagedHby her. She never went into the Court nor appeared before the Court on 06.08.1984. The family possessed several hundreds acres of land, severalhouses and other numerous assets but in the compromise decree, shewas allotted 200 shares which were in the name of Smt. Kamalam,DW-2 of a sick mill, i.e., Vasudev Mill.

19. The properties which she inherited from her late husbandRangasamy and numerous properties which were purchased in her nameafter the death of her husband were all allocated to branches of D-1 andD-4 without giving an inch of land to her. The shares were also allottedto D-2 and D-5, the wives of D-1 and D-4, who have no pre existingrights. Janakiammal and her son Somasundaram did not get anyimmovable property in the compromise decree except shares of theVasudeva mills, a sick company. The consent decree clearly recordsthat no Vakalatnama has been filed by D-8. When no Vakalatnama wasfiled by D-8, she was not represented by a counsel and the Court wasmisled to believe that Thirumalnesan, advocate represented D-8.

20. The learned counsel submits that the family of three brotherslived jointly and continued to be joint family even after partition dated07.11.1960 and acquired several properties in the name of three branches.The family possessed more than 260 acres of land at different placeswith several houses but no immovable property was allocated toJanakiammal or her sons.

21. O.S. No.37 of 1984 was filed on the behest of S.K.Kumarasamy by C. Senthil Kumaravel, son of S.K.Chinnasamy. C.Senthil Kumaravel in his written statement in Suit No.1101 of 1987 haspleaded that Suit No. 37 of 1984 was filed by him at the behest of S.K.Kumarasamy, D-1. C. Senthil Kumaravel further pleaded that decree inO.S. No.37 of 1984 was sham and nominal. The 200 shares allotted toJanakiammal as per compromise decree dated 06.08.1984 which werein 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 D-1was only an imaginary story. No such agreement was filed in the courtnor the same was pleaded in a written statement filed by D.1-3 in O.S.No.37 of 1984. Despite the agreement dated 08.03.1981 not beingproduced in the Court, the trial court in its judgment dated 30.09.1997had erroneously accepted the factum of partition by agreement dated08.03.1981 and accepted the case of defendant No.1 that compromisedecree dated 06.08.1984 was to give effect to the partition dated08.03.1981.

A

B

C

D

EF

G

H

A23. No partition was affected in the year 1981 and the familyremained as a joint family. In O.S. No.37 of 1984, the house property atTatabad which was in the name of D-1, was not included, which propertywas purchased by joint family fund and the three branches had share inhouse at Tatabad which was mentioned at item No.10 in Schedule C ofSuit No.1101 of 1987.B

A

24. The pleading of defendant No.1 that under the agreementdated 08.03.1981, the plaintiff was to pay Rs. Seven Lakhs to D-4 andD-1 was to pay Rs. Four Lakhs to D-4 were all imaginary stories set upby D-1. Neither any agreement took place on 08.03.1981 nor any amountwas to be paid by plaintiff to D-4. The house at Tatabad purchased inCthe year 1978 with the joint family fund was not included in O.S. No.37of 1984, and in the house all members of the family had a share. Theamount of Rs.1,03,000/-, which was received by Janakiammal from theInsurance Corporation after the death of her husband was given todefendant No.1, which was utilised for business purposes. The HighDCourt did not consider the case of Janakiammal as pleaded.

25. Shri Gaurav Agrawal, learned counsel appearing in Civil AppealNo. 1538 of 2016 on behalf of Somasundaram submits that plaintiff wasdeprived of his immovable properties including land and houses and wasgiven only worthless shares in the Compromise decree dated 06.08.1984.EHe submits that the suit No.1101 of 1987 was filed by the plaintiff todeclare the decree dated 06.08.1984 void, unenforceable and fraudulent.

26. It is submitted that the plaintiff was taken to the Court by D-1 on 06.08.1984 and was asked to sign the compromise application onthe representation that since the plaintiff and D-10 had given personalFguarantee for the loan taken for Vasudeva Textiles Mills from PunjabNational Bank, their name should not be any immovable property tosave the family property. The plaintiff was assured by D-1 that his rightin immovable property shall not be affected by the Compromise decreeas the decree dated 06.08.1984 shall not be made effective.

G27. It is submitted that the allocation of the properties in thecompromise decree is unfair. A fraud was played on the plaintiff as wellas on the court in obtaining the compromise decree. It is submitted thatthe Order XXIII Rule 3A shall not govern a case where a fraud is playedon 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 afterHhaving found that suit is barred under Order XXIII Rule 3A has not entered into other issues. The house property of Tatabad which waspurchased in 1978 was not included in Schedule of O.S.NO.37 of 1984which property was included in Suit No.1101 of 1987, hence, suit forshare in house property at Tatabad was fully maintainable. The plaintiffhas completed his graduation in Textile Engineering. Vasudeva Industrieswas not a family concern, which was under litigation and was not aprofit making venture. The consent decree dated 06.08.1984 was neveracted upon. The mill could not be revived and closed down in 1987. Thedefendant No.1 continued to manage the affairs of the mill till 1989when he resigned.

28. Shri Kapil Sibal refuting the submissions of the appellantscontends that partition dated 07.11.1960 between three branches wasgiven effect to. Income Tax Returns were filed by three branches onthe basis of 1960 partition. There was an arrangement made in 1981under which the D-1 was to take properties at Coonoor, D-4 was to takeproperties at Somnur whereas plaintiff and defendant No.1 decided totake Vasudeva Textiles Mills. The Suit No.37 of 1984 was filed by theson of D-4 at his instance.

29. Shri Sibal submits that the Suit No.37 of 1984 has been decidedon compromise where all the defendants have signed the compromiseapplication including Janakiammal as well as Somasundaram. TheVakalatnama on behalf of defendant Nos.7 to 11 was filed by AdvocateThirumalnesan who represented defendants 8 to 11. It is submitted thatplaintiff and D-10 were all educated persons and having signed thecompromise application, it is not open to them to contend that they signedthe application under some misrepresentation or fraud.

30. The plaintiff and defendant No.10 wanted to take the mill intheir share hence, the shares of the mill were allocated in the compromisedecree to Rangasamy Branch. Rangasamy Branch had 95% shares inthe Mill, i.e., the controlling share. The mill was valued at the rate ofRs.32 Lakhs. There is no fraud in the compromise decree. TheCompromise decree dated 06.08.1984 was given effect to. There beingpartition in the year 1960 there was neither any joint family property norany joint family. It was pleaded by the plaintiff that his mother and sisterexpressed a desire not to take any share. In 1989, the plaintiff had soldthe Vasudeva Mills.

31. Shri Sibal submits that none of the pleadings of the plaintifffalls in the definition of fraud. No fraud was committed on the plaintiff.

AB

CD

E

F

G

H

AUnder Order XXIII Rule 3A CPC, no separate suit could have beenfiled to question the compromise decree.

32. Shri Sibal submits that the remedy open for the plaintiff wasto either file an application in suit No.37 of 1984 or file an appeal againstthe Compromise decree. Filing of suit No.1101 of 1987 is nothing butBlitigative gambling by the plaintiff. Shri Sibal submits that the suit filed bythe plaintiff deserves to be dismissed with costs.

33. Shri Nagamuthu, learned senior counsel appearing for thedefendant No.11 has supported the judgment of the Courts below. Hesubmits that from 1989, selling of shares of the mill started. The defendantCNo.1 purchased the shares of the mill. The Compromise decree dated06.08.1984 was acted upon. In 1994, the complete shares of the millwere transferred. Shri Nagamuthu submits that the defendant No.11and other defendants were transferee of the shares.

34. Shri Giri in rejoinder submission submits that Janakiammal’sDcase was that she never engaged any advocate. She, however, statedthat she had signed the compromise application in Tamil. Her case wasthat she does not know English and the Compromise was written inEnglish. Signatures of Janakiammal were taken on compromiseapplication by D-2, wife of D-1, who in usual course, for the purposes ofbusiness and Tax obtains signatures of Janakiammal from time to time.EThe family was running various businesses. Shri Giri submits that thejudgment of the trial court dated 06.08.1984 in O.S. No.37 of 1984 statesthat Vakalatnama of defendant Nos.8 to 13 was not filed. He submitsthat certified copy of Vakalatnama filed by advocate Thirumalnesan onbehalf of defendant Nos.8 to 13 has also not been brought on record andFaccording to the papers submitted by D-1, the Vakalatnama and thedocuments have been destroyed. How can D-1 say that the Vakalatnamahas been destroyed.

35. Shri Giri submits that the house at Tatabad which was includedas Item No.10 in Schedule C in Suit No.1101 of 1987 was purchasedGfrom a joint family fund. Although the house was taken in auction by D-1 but the consideration for house was not paid by D-1 individually, ratherthe amount was obtained from company Swamy and Swamy Plantations,which is a private limited company in which D-1, D-4 and D-10 hadshares. The Branch of Rangasamy in Swamy and Swamy Plantationshad about more than one-third share. The Tatabad house having beenHobtained from a private company which was a family business, all the branches shall have shares in the house. The Suit No.37 of 1984 havingnot included the Tatabad house, the suit for partition of house being SuitNo.1101 of 1987 was fully maintainable and both the Courts erred in notgranting share to the plaintiff in the said house.

36. One of the additional issues, which were framed by the trialcourt, was “Whether the suit is not maintainable in view of Order 23Rule 3 (A) of the Code of Civil Procedure?”

37. The trial court has decided the above issue against the plaintiffholding that separate suit challenging the compromise decree is barredas per Order XXIII Rule 3A of Civil Procedure Code.

38. The High Court in the impugned judgment as noted above hasobserved that the appeals can be decided on only one point ofconsideration, i.e., as to whether Suit No. 1101 of 1997 filed by theplaintiff Somasundaram challenging the compromise decree dated06.08.1984 was barred under Order XXIII Rule 3A. The High Court inthe impugned judgment relying on judgments of this Court held that noseparate suit is maintainable questioning the compromise decree, henceSuit No.1101 of 1987 was barred. Both the Courts having held that SuitNo.1101 of 1987 filed by the plaintiff is barred under Order XXIII Rule3A, we deem it appropriate to first consider the above issue.

39. Order XXIII Rule 3 provides for compromise of suit. In Rule3 amendments were made by Act No. 104 of 1976 by which a provisoand an explanation was added. Order XXIII Rule 3 as amended is to thefollowing effect:- “3. Compromise of suit. - Where it is proved to thesatisfaction of the Court that a suit has been adjusted wholly or inpart by any lawful agreement or compromise in writing and signedby the parties, or where the defendant satisfies the plaintiff inrespect of the whole or any part of the subject-matter of the suit,the Court shall order such agreement, compromise or satisfactionto be recorded, and shall pass a decree is accordance therewith sofar as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the sameas the subject-matter of the suit:

Provided that where it is alleged by one party and deniedby the other that an adjustment or satisfaction has been arrivedat, the Court shall decide the question; but no adjournment shall A

B

C

D

E

F

G

H

Abe granted for the purpose of deciding the question, unless theCourt, for reasons to be recorded, thinks fit to grant suchadjournment.

Explanation-An agreement or compromise which is voidor voidable under the Indian Contract Act, 1872 (9 of 1872), shallBnot 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 decreeon the ground that the compromise on which the decree is basedCwas not lawful.”

41. Determination of disputes between persons and bodies isregulated by law. The legislative policy of all legislatures is to provide amechanism for determination of dispute so that dispute may come to anend and peace in society be restored. Legislative policy also aims forDgiving finality of the litigation, simultaneously providing higher forum ofappeal/revision to vend the grievances of an aggrieved party. Rule 3Awhich has been added by above amendment provides that no suit shalllie to set aside a decree on the ground that the compromise on which thedecree is based was not lawful. At the same time, by adding the provisoin Rule 3, it is provided that when there is a dispute as to whether anEadjustment or satisfaction has been arrived at, the same shall be decidedby the Court which recorded the compromise. Rule 3 of Order XXIIIprovided that where it is proved to the satisfaction of the Court that asuit has been adjusted wholly or in part by any lawful agreement orcompromise, the Court shall order such agreement or compromise to beFrecorded and pass a decree in accordance therewith. Rule 3 uses theexpression “lawful agreement or compromise”. The explanation addedby amendment provided that an agreement or a compromise which isvoid or voidable under the Indian Contract Act, 1872, shall not be deemedto be lawful.”

42. Reading Rule 3 with Proviso and Explanation, it is clear thatGan agreement or compromise, which is void or voidable, cannot berecorded by the Courts and even if it is recorded the Court on challengeof such recording can decide the question. The Explanation refers toIndian Contract Act. The Indian Contract Act provides as to whichcontracts are void or voidable. Section 10 of the Indian Contract ActHprovides that all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration andwith 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 freewhen 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 havebeen given but for the existence of such coercion, undue influence,

fraud, misrepresentation or mistake.”

43. A consent when it is caused due to coercion, undue influence,fraud, misrepresentation or mistake is not free consent and suchagreement shall not be contract if free consent is wanting. Sections 15,16, 17 and 18 define coercion, undue influence, fraud andmisrepresentation. Section 19 deals with voidability of agreements withoutfree 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 ormisrepresentation, the agreement is a contract voidable at theoption of the party whose consent was so caused.

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

Exception.—If such consent was caused bymisrepresentation or by silence, fraudulent within the meaning ofsection 17, the contract, nevertheless, is not voidable, if the partywhose consent was so caused had the means of discovering thetruth with ordinary diligence.

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

A

B

C

D

E

F

G

H

A44. A conjoint reading of Sections 10, 13 and 14 indicates thatwhen consent is obtained by coercion, undue influence, fraud,misrepresentation or mistake, such consent is not free consent and thecontract becomes voidable at the option of the party whose consent wascaused due to coercion, fraud or misrepresentation. An agreement, whichis void or voidable under the Indian Contract Act, shall not be deemed toBbe lawful as is provided by Explanation to Rule 3 of Order XXIII.

A

45. We need to examine the grounds on which the compromisedecree dated 06.08.1984 was sought to be impeached by pleadings inSuit No. 1101 of 1987. Whether the grounds to impeach the compromisedeed are one which can be raised before the Court recording theCcompromise decree as per Rule 3 of Order XXIII? We need to look intothe grounds on the basis of which Suit No.1101 of 1987 was filedquestioning the compromise decree. Paragraphs 12 and 13 of the plaintcontain the allegations, which are to the following effect:- “12. In the beginning of 1984, the 1[st] defendant representedDthat since the plaintiff have given personal guarantee to the Bankfor the loans of several lakhs, it would be risky and not expedientto have the family properties in the name of the plaintiff and itwould be advantageous and safe to keep off the names of theplaintiff on records as owners. Even there the plaintiff did notdirection and wisdom of the 1[st] defendant. The 1[st] defendant furtherErepresented that the entire family properties would be kept in thename of defendants- 1 and 4 for the purpose of record and toavoid the risk of any bank claim. The 1[st] defendant assured thatthis arrangement would not affect or extinguish the plaintifflegitimate share in the properties. Here again the plaintiff obeyedFand acted according to the decision and directions of the 1[st]defendant.

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

46. In paragraph 15 of the plaint, the plaintiffs had further pleadedthat entre proceedings and the decree secured from the Court is a fraudplayed not only on the plaintiff but also against the Court. The plaintiffspleads that compromise decree which was intended only to secure andHsafeguard the properties is sham and nominal besides being fraudulent.

47. From the above, it is clear that plaintiff pleaded that compromiserecorded on 06.08.1984 was not lawful compromise having been obtainedby fraud and misrepresentation. The plaintiff’s case was that they wererepresented by D1 that the compromise is being entered only to save thefamily property since the plaintiff has given personal guarantee to thePunjab National Bank for obtaining loan for Vasudeva Mills. Pleadingsclearly make out the case of the plaintiff that the consent which he gavefor compromise by signing the compromise was not free consent. Thecompromise, thus, become voidable at the instance of the plaintiff.

48. Whether the bar under Rule 3A of Order XXIII shall beattracted in the facts of the present case as held by the Courts below isthe question to be answered by us. Rule 3A bars the suit to set aside thedecree on the ground that compromise on which decree was passedwas not lawful. As noted above, the word “lawful” has been used inRule 3 and in the Explanation of Rule 3 states that “an agreement orcompromise which is void or voidable under the Indian Contract Act,1872(9 of 1872), shall not be deemed to be lawful……………….;”

49. Thus, an agreement or compromise which is clearly voidor voidable shall not be deemed to be lawful and the bar underRule 3A shall be attracted if compromise on the basis of whichdecree was passed was void or voidable.

50. Order XXIII Rule 3 as well as Rule 3A came for considerationbefore this Court in large number of cases and we need to refer to fewof them to find out the ratio of judgments of this Court in context of Rule3 and Rule 3A. In Banwari Lal Vs. Chando Devi (Smt.) ThoughLRs. And Anr., (1993) 1 SCC 581, this Court considered Rule 3 aswell as Rule 3A of Order XXIII. This Court held that object of theAmendment Act, 1976 is to compel the party challenging the compromiseto question the Court which has recorded the compromise. In paragraphs6 and 7, following was laid down:- “6. The experience of the courts has been that on manyoccasions parties having filed petitions of compromise on basis ofwhich decrees are prepared, later for one reason or other challengethe validity of such compromise. For setting aside such decreessuits used to be filed which dragged on for years including appealsto different courts. Keeping in view the predicament of the courtsand the public, several amendments have been introduced in Order23 of the Code which contain provisions relating to withdrawal A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

and adjustment of suit by Civil Procedure Code (Amendment)Act, 1976. Rule 1 of Order 23 of the Code prescribes that at anytime after the institution of the suit, the plaintiff may abandon hissuit or abandon a part of his claim. Rule 1(3) provides that wherethe Court is satisfied (a) that a suit must fail by reason of someformal defect, or (b) that there are sufficient grounds for allowingthe plaintiff to institute a fresh suit for the subject-matter of a suitor part of a claim, it may, on such terms as it thinks fit, grant theplaintiff permission to withdraw such suit with liberty to institute afresh suit. In view of Rule 1(4) if plaintiff abandons his suit orwithdraws such suit without permission referred to above, he shallbe precluded from instituting any such suit in respect of suchsubject-matter. Rule 3 of Order 23 which contained the procedureregarding compromise of the suit was also amended to curtailvexatious and tiring litigation while challenging a compromisedecree. Not only in Rule 3 some special requirements wereintroduced before a compromise is recorded by the court includingthat the lawful agreement or a compromise must be in writing andsigned by the parties, a proviso with an explanation was also addedwhich is as follows:

“Provided that where it is alleged by one party and deniedby the other that an adjustment or satisfaction has been arrivedat, the Court shall decide the question; but no adjournmentshall be granted for the purpose of deciding the question, unlessthe Court, for reasons to be recorded, thinks fit to grant suchadjournment.

Explanation.— An agreement or compromise which isvoid or voidable under the Indian Contract Act, 1872 (9 of1872), shall not be deemed to be lawful within the meaning ofthis rule.”

7. By adding the proviso along with an explanation thepurpose and the object of the amending Act appears to be tocompel the party challenging the compromise to question the samebefore the court which had recorded the compromise in question.That court was enjoined to decide the controversy whether theparties have arrived at an adjustment in a lawful manner. Theexplanation made it clear that an agreement or a compromisewhich is void or voidable under the Indian Contract Act shall not be deemed to be lawful within the meaning of the said rule. Havingintroduced the proviso along with the explanation in Rule 3 inorder to avoid multiplicity of suit and prolonged litigation, a specificbar was prescribed by Rule 3-A in respect of institution of aseparate suit for setting aside a decree on basis of a compromisesaying:

“3-A. Bar to suit.— No suit shall lie to set aside a decreeon the ground that the compromise on which the decree isbased 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 Courtnoted the provisions of Order XXIII Rule 3 and Rule 3A and recordedhis conclusions in paragraph 17 in following words:- “17. The position that emerges from the amended provisionsof Order 23 can be summed up thus:

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

(ii) No appeal is maintainable against the order of the courtrecording 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 acompromise decree on the ground that the compromise was notlawful in view of the bar contained in Rule 3-A.

(iv) A consent decree operates as an estoppel and is validand binding unless it is set aside by the court which passed theconsent decree, by an order on an application under the proviso toRule 3 Order 23.

Therefore, the only remedy available to a party to a consentdecree to avoid such consent decree, is to approach the courtwhich recorded the compromise and made a decree in terms of it,and establish that there was no compromise. In that event, thecourt which recorded the compromise will itself consider anddecide the question as to whether there was a valid compromiseor not. This is so because a consent decree is nothing but contractbetween parties superimposed with the seal of approval of the A

B

C

D

E

F

G

H

Acourt. The validity of a consent decree depends wholly on thevalidity of the agreement or compromise on which it is made. Thesecond defendant, who challenged the consent compromise decreewas fully aware of this position as she filed an application forsetting aside the consent decree on 21-8-2001 by alleging thatthere was no valid compromise in accordance with law.BSignificantly, none of the other defendants challenged the consentdecree. For reasons best known to herself, the second defendantwithin a few days thereafter (that is on 27-8-2001) filed an appealand chose not to pursue the application filed before the court whichpassed the consent decree. Such an appeal by the second defendantCwas not maintainable, having regard to the express bar containedin Section 96(3) of the Code.”

A

52. The next judgment is R. Rajanna Vs. S.R. Venkataswamyand Ors., (2014) 15 SCC 471 in which provisions of Order XXIIIRule 3 and Rule 3A were again considered. After extracting the aforesaidDprovisions, following was held by this Court in paragraph 11:- “11. It is manifest from a plain reading of the above that interms of the proviso to Order 23 Rule 3 where one party allegesand the other denies adjustment or satisfaction of any suit by alawful agreement or compromise in writing and signed by theEparties, the Court before whom such question is raised, shall decidethe same. What is important is that in terms of Explanation toOrder 23 Rule 3, the agreement or compromise shall not be deemedto be lawful within the meaning of the said Rule if the same isvoid or voidable under the Contract Act, 1872. It follows that inevery case where the question arises whether or not there hasFbeen a lawful agreement or compromise in writing and signed bythe parties, the question whether the agreement or compromise islawful has to be determined by the court concerned. What is lawfulwill in turn depend upon whether the allegations suggest anyinfirmity in the compromise and the decree that would make thesame void or voidable under the Contract Act. More importantly,GOrder 23 Rule 3-A clearly bars a suit to set aside a decree on theground that the compromise on which the decree is based wasnot lawful. This implies that no sooner a question relating tolawfulness of the agreement or compromise is raised before thecourt that passed the decree on the basis of any such agreementHor compromise, it is that court and that court alone who can E

G

H

examine and determine that question. The court cannot direct theparties to file a separate suit on the subject for no such suit will liein view of the provisions of Order 23 Rule 3-A CPC. That isprecisely what has happened in the case at hand. When theappellant filed OS No. 5326 of 2005 to challenge the validity ofthe compromise decree, the court before whom the suit came uprejected the plaint under Order 7 Rule 11 CPC on the applicationmade by the respondents holding that such a suit was barred bythe provisions of Order 23 Rule 3-A CPC. Having thus got theplaint rejected, the defendants (respondents herein) could hardlybe heard to argue that the plaintiff (appellant herein) ought topursue his remedy against the compromise decree in pursuanceof OS No. 5326 of 2005 and if the plaint in the suit has beenrejected to pursue his remedy against such rejection before a highercourt.”

53. The judgments of Pushpa Devi(supra) as well as BanwariLal (supra) were referred to and relied by this Court. This Court heldthat no sooner a question relating to lawfulness of the agreement orcompromise is raised before the court that passed the decree on thebasis of any such agreement or compromise, it is that court and thatcourt alone who can examine and determine that question.

54. In subsequent judgment, Triloki Nath Singh Vs. AnirudhSingh (Dead) Through Legal Representatives and Ors., (2020) 6SCC 629, this Court again referring to earlier judgments reiterated thesame preposition, i.e., the only remedy available to a party to a consentdecree to avoid such consent decree is to approach the court whichrecorded the compromise and separate suit is not maintainable. Inparagraphs 17 and 18, following has been laid down:- “17. By introducing the amendment to the Civil ProcedureCode (Amendment) 1976 w.e.f. 1-2-1977, the legislature hasbrought into force Order 23 Rule 3-A, which creates bar to institutethe suit to set aside a decree on the ground that the compromiseon which decree is based was not lawful. The purpose of effectinga compromise between the parties is to put an end to the variousdisputes pending before the court of competent jurisdiction onceand for all.

18. Finality of decisions is an underlying principle of alladjudicating forums. Thus, creation of further litigation should never A

B

C

D

E

F

G

H

Abe the basis of a compromise between the parties. Rule 3-A ofOrder 23 CPC put a specific bar that no suit shall lie to set asidea decree on the ground that the compromise on which the decreeis based was not lawful. The scheme of Order 23 Rule 3 CPC isto avoid multiplicity of litigation and permit parties to amicablycome to a settlement which is lawful, is in writing and a voluntaryBact on the part of the parties. The court can be instrumental inhaving an agreed compromise effected and finality attached tothe same. The court should never be party to imposition of acompromise upon an unwilling party, still open to be questioned onan application under the proviso to Order 23 Rule 3 CPC beforeCthe court.”

55. The above judgments contain a clear ratio that a party to aconsent decree based on a compromise to challenge the compromisedecree on the ground that the decree was not lawful, i.e., it was void orvoidable has to approach the same court, which recorded the compromiseDand a separate suit challenging the consent decree has been held to benot maintainable. In Suit No.1101 of 1987, the plaintiff prayed for adeclaration declaring that the decree passed in O.S. No. 37 of 1984 issham and nominal, ultravires, collusive, unsustainable invalid,unenforceable and not binding on the plaintiffs. We have noted the groundsas contained in the plaint to challenge the consent decree in foregoingEparagraphs from which it is clear that the compromise, which wasrecorded on 06.08.1984 was sought to be termed as not lawful, i.e., voidor voidable. On the basis of grounds which have been taken by theplaintiff in Suit No.1101 of 1987, the only remedy available to the plaintiffwas to approach the court in the same case and satisfy the court thatFcompromise was not lawful. Rule 3A was specifically added by theamendment to bar separate suit to challenge the compromise decreewhich according to legislative intent to arrest the multiplicity ofproceedings. We, thus, do not find any error in the judgment of trial courtand High Court holding that Suit No.1101 of 1987 was barred underOrder XXIII Rule 3A.G

56. We having found that Suit No.1101 of 1987 being barred underOrder XXIII Rule 3A, it is not necessary for us to enter into correctnessor otherwise of the grounds taken in the plaint for questioning thecompromise decree dated 06.08.1984. The compromise decree dated06.08.1984, thus, could not have been questioned in Suit No. 1101 ofH1987.

57. There remains one more submission which needs to beconsidered.

58. Learned counsel for the appellants contends that even ifconsent decree dated 06.08.1984 could not have been challenged, theappellants were entitled for shares in residential building at Tatabad, Dr.Alagappa Chettiar Road, Coimbatore, which was left out from the decreedated 06.08.1984. The above residential suit property was not a part inO.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 wasalthough in the name of defendant No.1 but it was acquired from jointfamily 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 tothe following effect:

“Item No.X

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

60. The above residential property was neither included inO.S.No.37 of 1984 nor part of compromise decree dated 06.08.1984.The plaintiff’s prayer to declare the decree passed in O.S.37 of 1984 asunenforceable shall not preclude the consideration of a property whichwas not part of the decree. The appellants’ case for claiming share inthe 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 plaintiffand defendant No.1 with regard to above mentioned house property asreflected in O.S. No.1101 of 1987.

62. In paragraph 6(e) of the plaint, following has been pleaded bythe plaintiff:

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

A

B

C

D

E

F

G

H

A63. Defendant Nos.1 to 3 filed written statements in O.S. No.1101of 1987 and with regard to above averment made in paragraph 6(e),following has been pleaded by the defendant No.1:

“6. The allegations in paragraph 6 of the plaint are not whollytrue. The allegation that the property described as Item No.10 ofBSchedule ‘B’ was acquired out of the joint income for the benefitof the family is absolutely false. Firstly there was no joint income.Secondly there is no family, thirdly it was not purchased out ofjoint income. The property was taken in auction by the 1[st]defendant. The amount necessary for payment of the price wasdrawn by the 1[st] defendant from Swamy & Swamy Co. TheCamount was debited against him in the amounts of the Swamy &Co.”

64. The case of defendant No.1 was that above property waspurchased in auction by the defendant No.1. The defendant No.1 hadfiled Ex.B-27 in support of his claim that house property is a separateDproperty of defendant No.1. Ex.B-27 indicates that defendant No.1 wasdeclared as the purchaser of the property as sold by public auction heldon 28.11.1979 for Rs.1,51,000/-. Ex.B-27 was a sale certificate issuedby Court of Subordinate Judge, Coimbatore to the above effect. Althoughin paragraph 6 of the written statement the defendant No.1 had pleadedEthat amount necessary for payment of price was drawn by defendantNo.1 from Swamy and Swamy Co. Defendant No.1 appeared in WitnessBox as DW-2 and stated in his cross-examination that he has for paymentof house property at Tatabad utilised the funds of the Swamy and SwamyPlantations Co. In his cross-examination, he admitted that he had takenRs.1,50,000/-. In his cross-examination, following was stated by defendantFNo.2:

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

65. In subsequent cross-examination, he clearly mentioned thatthe amount which was taken for the purchase of the house property atTatabad was not returned to Swamy and Swamy Plantations Co. In hisHcross-examination on 12.08.1997, defendant No.2 states:

A

“On 12.8.1997 the witness was sworn and re-examined.

The reason for not returning the amount to Swamy & SawmyPlantation Company from which it was borrowed for the purchaseof the house in Tatabad, because there was credit balance in myname in the said company.”

B

66. Evidence on record, thus, indicates that Tatabad house propertywas purchased in the name of defendant No.1 and the consideration forpurchase was paid from Swamy and Swamy Plantations Co. having itsDirectors and shareholders only the family members of all the branches.In his cross-examination defendant No.2 has stated:

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

67. The details of the shareholders of the Swamy and SwamyPlantations (P) Ltd., Coonoor, were mentioned in O.S.No.37 of 1984 asItem No.10 of Schedule ‘C’ which is to the following effect:

D

“Item No.10

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

68. As per details given above the Rangasamy branch held 2190shares out of 4245 shares which is more than 50% shares of the Company.

H

A69. The main plank of submission on behalf of respondent No.1 isthat after the partition dated 07.11.1960, the three branches had separatedand joint family status came to end. He submitted that partition dated07.11.1960 is the registered partnership deed which partition was acceptedby trial court in its judgment. The partition of joint family of three brancheshaving been accepted on 07.11.1960 there was no joint family when theBTatabad house property was purchased in 1979.

A

70. The submission of the learned counsel for the appellants insupport of the appeals is that partition dated 07.11.1960 was enteredbetween three brothers to save the landed property from Land CeilingAct. The partition deed dated 07.11.1960 was got registered on 07.11.1960,Cit claims that parties have divided immovable properties on 01.04.1960.The submission is that Land Ceiling Act was being implementedimmediately after 01.04.1960 hence the said claim was set up in thepartition deed. The partition deed was executed to save the landedproperty of the three branches and there was no intention of separatingDeach branch and bringing the change in joint family status. The submissionof Shri Giri has been reiterated which was also raised before the HighCourt that after partition dated 07.11.1960 the three brothers united andjoint family continued even after 07.11.1960, which is evident fromdifferent properties purchased in the name of all the three branches,living together in ancestral house at Sadapalayam and newly constructedEhouse at Somnur. After the purchase of land in 1963 all the three branchescontinued to run family businesses together.

71. Learned counsel for the appellants further submits that it isown case of defendant No.1 that partition agreement dated 08.03.1981took between the parties under which Rangasamy branch agreed toFtake Vasudeva Textile Mills, the branch of defendant No.1, S.K.Kumarasamy decided to take property at Coonoor and Vedapathi villageand Chinnasamy branch decided to take property at Somnur. DefendantNo.1 has pleaded that under the agreement dated 08.03.1981, the plaintiffhad to pay Rs.7 lacs to defendant No.4 and defendant No.1 had to payGRs.4 lacs to defendant No.4 to equalise the valuation by partition as wasagreed on 08.03.1981. Shri Giri submits that DW.1 himself came withcase that partition had taken place on 08.03.1983 and compromise decreewas nothing but implementation of the said agreement. Shri Giri submitsthat when defendant No.1 himself states about the partition in the year1981, the partition pre-supposes the joint family and had the threeH

branches separated from 07.11.1960, there was no question of againeffecting partition in the year 1981.

72. One of the points for consideration before us is that as towhether at the time when Tatabad house was acquired by defendantNo.1 whether all three branches were part of joint family or all the threebranches after partition dated 07.11.1960 continued to be separate fromeach other.

73. The sheet anchor of the defendant No.1 is that three branchesof family were not joint as it was partitioned by partition deed dated07.11.1960. The partition deed dated 07.11.1960 is a registered partitiondeed between three branches. The partition deed dated 07.11.1960referred to earlier partition deed dated 27.09.1953 by which the fatherof three brothers partitioned property between son of his first wife andhis three sons from second wife. The properties which were allotted toin the partition deed dated 27.09.1953 was 86.72 acres between threebrothers. The Partition Deed dated 07.11.1960 reads:-

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

Since we decided to partition amongst ourselves we havedivided the business capital belonging to our joint family videaccounts dated 1.4.1960. We have already divided the jewels,utensils and other articles and each of us are enjoying themseparately. Though on 01.04.1960 we have divided the immovableproperties such as house buildings, factory buildings, farm andlands to avoid litigation among us in future we have registered itthrough this document.”

74. The case of the appellant is that the partition deed dated07.11.1960 was entered between three brothers to save the propertiesfrom land ceiling laws. The relevant date under the Land Ceiling Actwas 07.04.1960 on which date the extent of properties in hands of a A

B

C

D

E

F

G

H

Aperson has to be determined and since three brothers, who consistedmembers of joint family on the relevant date had more than the landwhich was permitted to a person, a partition was entered to save theproperties from land ceiling laws. This argument was rejected by thetrial court holding that it has not been proved that land ceiling laws in anymanner affected the extent of land in the hands of three brothers. WeBneed to notice some provisions of Tamil Nadu Land Reforms (Fixationof Ceiling on Land) Act, 1961. Section 3 of the Act which is a definitionclause defines the word “person” in Section 3(34) which is to the followingeffect:- “3(34). “person” includes any company, family firm, societyCor association of individuals, whether incorporated or not or anyprivate trust or public trust.”

75. Section 5 of the Act provide for ceiling area. According tosub-section (1)(a) of Section 5 the ceiling area in the case of everyperson and in the case of every family consisting of not more than fiveDmembers was 30 standard acres. Figure of 30 standard acres wassubsequently reduced to 15 standard acres by Tamil Nadu Act No. 37 of1972. Section 5(1)(b) further provided that ceiling area in the case ofevery family consisting of more than five members shall be 30 standardacres together with an additional 5 standard acres for every member ofEthe family in excess of five. In event, the ceiling area is determinedtreating the Hindu Undivided Family, joint family consisting of threebrothers, the ceiling area shall be 30 standard acres by which 5 acresadditional for every member of the family in excess of five. The landwhich was possessed by the three brothers in the year 1960 was morethan 86.52 acres, which extent was received by the three brothers inF1953 partition. Thereafter three brothers have acquired further land. Incase, three brothers before 07.04.1960 partition their joint family, theneach person will be entitled to 30 acres. Thus, partition of the propertiesamong three brothers was clearly beneficial to the properties possessedby the three brothers. The view of the trial court that it is not proved thatGany benefit under the Ceiling of Land Act could have been obtained bythree brothers is clearly untenable. The view expressed by the trial courtwas not after examining the provisions of Act, 1961. Further the statementin the partition that three brothers have already divided the immovableproperties 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.H

76. Under Hindu Law, any member of the joint family can separatehimself from joint family. The intention of the parties to terminate thestatus of joint family is a relevant factor to determine the status of HinduUndivided Family. From the above, it is clear that real intendment ofthree branches to partition their properties was not that they did notwant Hindu Undivided Family to continue rather the said partition waswith object to get away from application of Ceiling Act, 1961. The intentionof the parties when they partitioned their properties in the year 1960 is arelevant fact.

77. However, the Partition Deed dated 07.11.1960 being aregistered Partition Deed between three branches, the same cannot beignored. Properties admittedly were divided in three branches by thesaid partition. The question is as to whether after 07.11.1960, the familycontinued as a Joint Family or the status of joint family came to an endon 07.11.1960. The case of the appellant which was also pressed by theHigh Court was that even if partition dated 07.11.1960 is accepted; theparties lived in a joint family and continued their joint family status. Thecontention advanced by the appellant was that there was reunion betweenthree brothers to revert to the status of Joint Hindu Family, which isamply proved from the acts and conducts of the parties subsequent to07.11.1960.

78. The concept of reunion in Hindu Law is well known. HinduJoint Family even if partitioned can revert back and reunite to continuethe status of joint family. Mulla on Hindu Law, 22[nd] Edition, whiledeliberating on reunion has status following in paragraphs 341, 342 and343:- “341. Who may reunite,- ‘A reunion in estate properly so called,can only take place between persons who were parties to theoriginal partition’. It would appear from this that a reunion cantake place between any persons who were parties to the originalpartition. Only males can reunite.

342. Effect of reunion,- The effect of a reunion is to remit thereunited members to their former status as members of a jointHindu family.

343. Intention necessary to constitute reunion: To constitutea reunion, there must be an intention of the parties to reunite inestate and interest. In Bhagwan Dayal v. Reoti Devi, the AB

C

D

E

F

G

H

ASupreme Court pointed out that it is implicit in the concept of areunion that there shall be an agreement between the parties toreunite in estate with an intention to revert to their former status.Such an agreement may be express or may be implied by theconduct of the parties. The conduct must be of an incontrovertiblecharacter and the burden lies heavily on the party who assetsBreunion.”

A

79. The Privy Council in Palani Ammal Vs.Muthuvenkatacharla Moniagar and Ors., AIR 1925 PC 49 hasheld that if a joint Hindu family separates, the family or any members ofit may agree to reunite as a joint Hindu family, but such a reuniting is forCobvious reasons, which would apply in many cases under the law of theMitakshara, of very rare occurrence, and when it happens it must bestrictly proved as any other disputed fact is proved. In paragraph 9, thePrivy Council laid down following :-

“9. But the mere fact that the shares of the coparcenersDhave been ascertained does not by itself necessarily lead to aninference that the family had separated. There may be reasonsother than a contemplated immediate separation for ascertainingwhat the shares of the coparceners on a separation would be. Itis also now beyond doubt that a member of such a joint family canEseparate himself from the other members of the joint family andis on separation entitled to have his share in the property of thejoint family ascertained and partitioned off for him, and that theremaining coparceners, without any special agreement amongstthemselves, may continue to be coparceners and to enjoy asmembers of a joint family what remained after such a partition ofFthe family property. That the remaining members continued to bejoint may, if disputed, be inferred from the way in which theirfamily business was carried on after their previous coparcenerhad separated from them. It is also quite clear that if a joint Hindufamily separates, the family or any members of it may agree toGreunite as a joint Hindu family, but such a reuniting is for obviousreasons, which would apply in many cases under the law of theMitakshara, of very rare occurrence, and when it happens it mustbe strictly proved as any other disputed fact is proved. The leadingauthority for that last proposition is Balabux Ladhuram v.Rukhmabai (1903) 30 Cal. 725.”

D

H

80. Another judgment which needs to be noticed is judgment ofMadras High Court in Mukku Venkataramayya Vs. Mukku Tatayyaand Ors., AIR 1943 Mad. 538. In the above case, there was partitionin the family in the year 1903 as a result of which the father with hissecond wife and children separated and begin to live apart from his sonsby the first wife. The case of the respondent was that he and his brotherscontinued to remain joint after their father decided to remain away fromthem in 1903. An alternative case was also put forward that there hasbeen a reunion amongst the brothers after the partition. Madras HighCourt in paragraph 5 stated:- “5. ……………………..But if a general partition betweenall the members takes place, re-union is the only means by whichthe joint status can be re-established. Mere jointness in residence,food or worship or a mere trading together cannot bring about theconversion of the divided status into a joint one with all the usualincidents of jointness in estate and interest unless an intention tobecome re-united in the sense of the Hindu law is clearlyestablished. The rule is, if I may say so with respect, correctlystated by the Patna High Court, in Pan Kuer v. Ram NarainChowdhary, A.I.R. 1929 Pat. 353 where the learned Judgeobserves that:

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

81. The High Court held that the brothers, who had divided, livedand traded together, the case of the reunion was accepted. In paragraph17, following was laid down:-

“17. The question then is, whether this finding is sufficientto support a case of reunion. We are conscious that the burden ofproof is heavily on the respondent and also that proof of merejointness in residence, food and worship dees not necessarily makeout reunion. What is to be established is that not only did theparties who had divided lived and traded together, but that theydid so with the intention of thereby altering their divided statusinto a joint status with all the usual incidents of jointness in estateand interest. In our opinion the way in which the brothers dealt A

B

C

D

E

F

G

H

Awith each other leaves no room for doubt that it was their deliberateintention to reunite so as to reproduce the joint status which hadexisted before the partition of 1903. The immediate object of thepartition was to enable the father to live separately from his sonsby the first wife, as misunderstandings had arisen between them.As between the sons themselves there never was any reason forBa separation inter se and there can be no doubt that the momentthey separated away from their father they desired to live andlived together in joint status. It is true that at that time the firstrespondent was a minor. But this can make little difference ifafter he attained majority he accepted the position in which theCappellant and Nagayya had already begun to live together. In ourview it is not necessary that there should be a formal and expressagreement to reunite. Such an agreement can be established byclear evidence of conduct incapable of explanation on any otherfooting. Such, in our view, is the position here established. Thatbeing so, the claim of the appellant to the exclusive ownership ofDthe properties in suit must be negatived. The appeal fails and musttherefore be dismissed with costs.”

82. One more judgment on the concept of reunion which need tobe referred to is the judgment of Karnataka High Court is M/s.Paramanand L. Bajaj, Bangalore Vs. The Commissioner of IncomeETax, Karnataka, II, Bangalore, (1981) SCC Online Karnataka131. Justice Rama Jois after referring to Smritis and relevant judgmentson the subject laid down that reunion is the reversal of the process ofpartition, following was held in paragraphs 8 and 12:- “8. The basic proposition of Hindu Law on reunion is laidFdown in Brihaspati Smriti (Gaekwad’s Oriental Series, Vol.LXXXV-pp 214-215), also vide Smrti-Chandrika IIIVyavaharakanda Part II (1916) published by Government ofhighness the Maharaja of Mysore pp 702-703; English versionJ.R. Gharpura (1952) Part III pp 667-670).

G

He who being once separated dwells again throughaffection with his father brought or paternal uncle is termedreunited.H

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

The view expressed by Devanna Bhatta, the author of Smriti-Chandrika on the text of Brihaspati is- Association not necessarily being by co-residence, theassociation is expressed to be through wealth; so by way ofremoving the distinguishing factor of that, it should be understoodthat the re-association of the separated members shall be to theextent of pooling together(all) the wealth etc., as before, and notmerely by a co-residence only.

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

Effects which had been divided and which are again mixedtogether are termed re-united. He, to whom such appertain, is are-united parcener.

The aforesaid provisions have been the subject matter ofinterpretation in number of cases.

12. On a consideration of the basic texts on the point andthe views of commentators expressed in Mitakshara and Smriti-chandrika and the case law cited before us and having due regardto the real purpose and intent of the Hindu law governing HUF, itappears to us that provision for reunion has been provided for, forenabling erstwhile members of a Hindu undivided family, to cometogether and to form once again a joint family governed byMitakshara law. The mutual love, affection arising from bloodrelationship and the desire to reunite proceeding therefrom, A

B

CD

E

F

G

H

A

B

C

D

E

F

G

H

constitutes the very foundation of reunion. This is evident fromthe text of Brihaspati in which even the relationship of personswho could reunite is specified though some of the commentatorshave taken the view that it is only illustrative and not exhaustiveand that reunion is possible even among persons not specified inthe text of Brihaspati. (See: Virmitrodaya, translated byGopalachandra Sarkar (1879) pp 204-205; VivadachintamaniGaekwad’s Oriental Series Vol. XCIX pp 288-289). But even sothere is no controversy that reunion is possible only among personswho were on an earlier date members of a HUF. Reunion thereforeis a reversal of the process of partion. Therefore, it is reasonableto take the view that reunion is not merely an agreement to livetogether as tenants in common, but is intended to bring about afusion in interest and estate among the divided members of anerstwhile HUF so as to restore to them the status of HUF onceagain and therefore reunion creates right on all the reunitingcoparceners in the joint family properties which were the subjectmatter of partition among them to the extent they were notdissipated away before the date of reunion. That would be thelegal consequence of a genuine reunion is forcefully brought aboutby the text of Brihaspati, which provides “where coparcenershave again reunited through affection, they shall mutuallyparticipate in each others properties”. Mitakshara states thatmixing up of divided properties is the effect of reunion. Thereforeit follows, no coparcener, who is a party to a reunion and whoadmits reunion, shall be heard to contend that the property whichhe had got at an earlier partition and still with him has not becomethe property of the reconstituted HUF. But there can be no doubtthat reunion, when disputed must be proved as any disputedquestion of fact and the circumstances that all the reunitingmembers have not brought back their properties to form thecommon-stock, may support the plea taken by any concernedparty that there was no reunion. However, if reunion is admittedby all the parties to the reunion or it is proved, the share of theproperties of reunited members got at an earlier partition and intheir possession at the time of reunion becomes the properties ofthe joint family, notwithstanding the fact that some of them havefailed to throw those properties into the common hotch pot, whetherwith or without the knowledge or consent of each other. It is adifferent aspect if reunion itself is not admitted by the persons who are parties to a reunion and it is not proved by the partypleading reunion, in which event there would be no reunion atall.”

83. We may now notice the judgment of this Court dealing withreunion in a Hindu Undivided Family. In Bhagwan Dayal Vs. ReotiDevi, AIR 1962 SC 287, this Court examined the principles of HinduLaw and principles of Hindu Joint Family. In paragraph 16, it was heldthat the general principle is that every Hindu family is presumed to bejoint unless the contrary is proved; but this presumption can be rebuttedby direct evidence or by course of conduct. In the above case, one ofthe questions was as to whether there was reunion between membersof the Joint Family after partition. This Court quoted with approval thejudgments of Privy Council in Palani Ammal (supra) and laid downfollowing in paragraph 22:- “22. For the correct approach to this question, it would beconvenient to quote at the outset the observations of the JudicialCommittee in Palani Ammal v. Muthuvenkatacharla Moniagar[(1924) LR 52 IA 83, 86] :

“It is also quite clear that if a joint Hindu family separates, thefamily or any members of it may agree to reunite as a jointHindu family, but such a reuniting is for obvious reasons, whichwould apply in many cases under the law of the Mitakshara,of very rare occurrence, and when it happens it must be strictlyproved as any other disputed fact is proved. The leading authorityfor 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 anintention of the parties to reunite in estate and interest. It is implicitin the concept of a reunion that there shall be an agreementbetween the parties to reunite in estate with an intention to revertto their former status of members of a joint Hindu family. Such anagreement need not be express, but may be implied from theconduct of the parties alleged to have reunited. But the conductmust be of such an incontrovertible character that an agreementof reunion must be necessarily implied therefrom. As the burdenis heavy on a party asserting reunion, ambiguous pieces of conductequally consistent with a reunion or ordinary joint enjoyment cannotsustain a plea of reunion. The legal position has been neatlysummarized in Mayne’s Hindu law, 11th Edn., thus at p. 569:

A

B

C

D

E

F

G

H

A

B

C

D

E

G

H

“As the presumption is in favour of union until a partition ismade out, so after a partition the presumption would be againsta reunion. To establish it, it is necessary to show, not only thatthe parties already divided, lived or traded together, but thatthey did so with the intention of thereby altering their status andof forming a joint estate with all its usual incidents. It requiresvery cogent evidence to satisfy the burden of establishing thatby agreement between them, the divided members of a jointHindu family have succeeded in so altering their status as tobring 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 neednot pursue the matter with further citations except to considertwo decisions strongly relied upon by the learned Attorney-General. Venkataramayya v. Tatayya [AIR 1943 Mad 538] is adecision of a Division Bench of the Madras High Court. It waspointed out there that “mere jointness in residence, food or worship

or a mere trading together cannot bring about the conversion ofthe divided status into a joint one with all the usual incidents ofjointness in estate and interest unless an intention to becomereunited in the sense of the Hindu law is clearly established”. Thesaid proposition is unexceptionable, and indeed that is the wellsettled law. But on the facts of that case, the learned Judgescame to the conclusion that there was a reunion. The partitionthere was effected between a father and his sons by the firstwife. One of the sons was a minor. The question was whetherthere was a reunion between the brothers soon after the allegedpartition. The learned Judges held that as between the sons therewas never any reason for separation inter se, and that the evidencedisclosed that on their conduct no explanation other than reunionwas possible. They also pointed out that though at the time ofpartition one of the brothers was a minor, after he attained majority,he accepted the position of reunion. The observations relied uponby the learned Attorney-General read thus:

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

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

A

84. The above observations indicates that this Court also approvedthe Madras High Court judgment in Mukku Venkataramayya(supra).Again this Court in Anil Kumar Mitra and Ors. Vs. Ganendra NathMitra and Ors., (1997) 9 SCC 725 held that the acts of the partiesmay lead to the inference that parties reunited after previous partition.In paragraph 4, following observations have been made:- B

“4. …………………………It is true that by the acts of the partiesthat even after the previous partition, they continued to be membersof the joint family. But it should be by conduct and treatmentmeted out to the properties by the members of the family in thisregard……………………………”

C

85. Now, we look into other materials on record. The ancestralhouse of the parties was at Helmet, Sedapalayam, VillageKarumathampaty where three brothers alongwith their father A.V.Kandaswamy used to live. DW2 in her statement has also stated thatafter she was married with Rangasamy, she lived at ancestral house atSedapalayam. Further the three brothers in the year 1963 purchased thehouse site at HemletSomanur and constructed a new house where threebrothers with their families shifted and lived at Somanur which becomethe new home of the Joint Family consisting of three brothers. The newhouse was constructed after purchasing the land in the year 1963 andthe families of the three brothers started living at about in 1964, whichclearly indicate that intention of all the brothers was to live jointly andcontinue as Joint Hindu Family. After partition dated 07.11.1960, threebranches have purchased several immovable properties together, detailsof which are as follows:- D

EF

i)Sale deed dated 09.06.1962 filed as exhibit A-42 in favourof (a) K.Rangasamy, (b) S.K.Kumarasamy and (c)GS.K.Chinmasamy of the land to the extent of 5.6 acres inKarumathampaty village.

ii)Sale deed dated 16.10.1963 which has been filed as exhibitA-43. By sale deed, property was purchased for constructionof house only which fact was stated in the sale deed itself.

H

380SUPREME COURT REPORTS

[2021] 6 S.C.R.

The sale deed was in the name of three brothers (a)K.Rangasamy, (b) S.K.Kumarasamy and (c)S.K.Chinmasamy.

A

iii)On 14.09.1972, by three sale deeds which were filed asexhibit A-41, B-10 and B-11, huge property situated atBCoonoor namely High Field estate was purchased in thename of S.K.Kumarasamy, S.R.Somasundaram(minor inthe guardianship of his mother Mrs. Janakiammal),S.R.Shammugha velcyutham in which estate the familycarried business.

C86. The three branches continued joint business by establishingfirms and companies which was carried by joint family in the partnershipor by private company. It was only the members of the family, whowere shareholders and directors. The purchase of various immovableproperties in the names of the three branches clearly indicate the intentionthat all the three branches are joint and they are purchasing the propertiesDin the name of all the three branches. After the death of Rangasamy inthe year 1967, it was S.K. Kumarasamy, defendant No.1, who took thereins of the family being the eldest. The plaintiff and defendant No.10,sons of Ranagasamy were very young at the time when their father diedand thereafter they were under the guidance and control of defendantENo.1 and the materials on the record indicate that it was the defendantNo.1 under whose guidance, all businesses were carried out. Even theSuit No.37 of 1984 which was filed for partition of properties was at theinstance of defendant No.1, which pleadings have been made by theplaintiff of that suit when he filed written statement in Suit No. 1101 of1987. The plaintiff of Suit No.37 of 1984 Senthil Kumaravel in his writtenFstatement in Suit No. 1101 of 1987 has clearly stated that he filed theSuit No.37 of 1984 at the instance of defendant No.1, which fact hasalso 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 onlyD-1, who filed the written statement and appeared in the witness box.GD-4, S.K. Chinnasamy, neither filed written statement nor came to thewitness box. It was D-1 who was pleading that joint family came to thean end after partition dated 07.11.1960. D-1 in his written statement andin his oral statement before the court has come up with the case thatthere was partition of the properties on 08.03.1981 and an agreementHwas entered between the three branches and compromise decree dated

06.08.1984 was passed to implement the agreement which was enteredin the year 1981. In the written statement filed by D-1 to D-3, inparagraphs 16 and 17, following was pleaded by D-1:- “16....The arrangement to put an end to the co-ownership hadbeen arrived at even in 1981 and separate ownership had beenagreed upon. Hence there could be no representation or assuranceas alleged in the plaint.

17....As the mode of division and allotment of the various itemshad been agreed upon previously and the amounts were paid tothe 4[th] defendant the compromise was arrived at, an early date ina smooth manner and the decree was passed in terms thereof.The decree has also been registered. At the terms of the agreementwere being incorporated in the compromise the parties wereadvised that it was not necessary to refer to the agreement dated08.03.1981 in the compromise.”

88. The case of partition of all properties by agreement dated08.03.1981 standing in name of different branches including the branchof Rangasamy was the case of defendant No.1 who was the eldestmember of the family and has been denying the jointness of the familyafter 07.11.1960. D-1 S.K. Chinnasamy appeared in witness box asDW-2. In his cross examination dated 10.04.1997, DW-2 stated: - “In March, 1981, we divided the common properties. On 08.03.1981we reduced the same in to a written agreement, written on stamppaper, and we signed the same. Myself, 4[th], 7[th] and 10[th] defendantsand the plaintiff signed in it. Three copies were taken. The samehas not been filed. All of us had signed in all the three copies. Wetook possession of our respective shares in the properties. After08.03.1981 the common properties were not in joint possessionand common enjoyment of all...”

89. Further in his cross-examination on 11.08.1997, D-2 furtherstated: - “...I had stated that division of all properties was done in 1981.The arrangement that was decided in 1981 was implemented in1984 under the decree. Nothing new was done. As per thearrangement decided in March, 1981, Vasudev Mill having 16 acresof land and buildings and the machineries belonging to the millwere allotted to the branch of my elder brother...”

A

B

C

D

E

F

G

H

AThe trial court in its judgment dated 30.09.1997 in paragraph 28held:- “28....the agreement that had been executed on 08.03.1981 isgenuine and it is clear that it has come into force and that theshares which were more or less raised afresh were given to theBplaintiff branch and that after the year 1981, the family of the 1[st]defendant, had relieved themselves from Swamy & Co.,Rangasamy Brothers. Swamy Textiles, Rengavilas Warfing &Sizing Factory and that it had been proved through the oral evidenceand the documentary proof and that through the Ex.A12 document,the plaintiff and the 10[th] defendant were in the management ofCthe mill and the same had been clearly proved and that after08.03.81, the 1[st] defendant had obtained the right in the estate andthat it is clearly proved through Ex.B67 and that it is the stockregister maintained in the Sciefield Tea Factory and that it wouldreveal that till March, 1981 and 10[th] defendant had signed in theDregister and that thereafter the 1[st] defendant had signed in thesame is clearly revealed, in the Ex.B68, 69 gate pass also it isfound as above and that from this, it is clearly revealed that afterthe 1981, the above said agreement was brought into force andthat it is proved clearly and that it had been indicated on the sideof the plaintiff that it is incorrect to state that the property atECoonoor, Veerakeralam is in the custody of the 1[st] defendant andthe properties at Somanur are lying with the 4[th] defendant andthat the plaintiff had accepted in the evidence that he had notmanaged the property at Coonoor, and that from this it is clearlyrevealed that the above said agreement was brought into force.”F90. Further in paragraph 159, the trial court again held thatagreement of the year 1981 is genuine and it was brought into force andthe argument of DW-1 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 agreementGentered between parties in the year 1981 to divide the properties standingin the names of three branches. The agreement dated 08.03.1981 wasnot filed by D-1 in the evidence. The agreement was not filed nor exhibitedby the defendant, D-1.

92. In the written statement which was filed by D-1 in O.S. No.37Hof 1984, no plea was taken regarding agreement dated 08.03.1981. It was for the first time in the written statement filed by D-1 in suit No.1101of 1987 that mention of agreement dated 08.03.1981 was made. Neitherany agreement dated 08.03.1981 was filed or proved nor there is anyother evidence on record to prove the division of properties betweenthree branches in the year 1981.

93. It is the case of the defendant No.1 that the compromisedecree dated 06.08.1984 is nothing but implementation of agreementdated 08.03.1981. It is, thus, clear that the case of D-1 is that there waspartition of all properties standing in the names of three branches andallocated to different branches on 08.03.1981, which has beensubsequently implemented by consent decree dated 06.08.1984. As perthe case of defendant, the Vasudeva Textiles Mills was given to thebranch of Rangasamy, property at Coonoor was taken by D1 andproperties at Somnur by D-4.

94. When the D-1 comes with the case that there was partitionon 08.03.1981 of all immovable properties standing in the names of threebranches, which was implemented on 06.08.1984, the conclusion isirresistible that family was joint and had the three branches were notpart of joint Hindu family, there was no occasion for attempting anypartition on 08.03.1981 as claimed by D-1. The fact that defendant No.1is coming with the case that there was partition on 18.03.1981 itselfproves that three branches were joint till then as per case of D-1 himself.

95. It is to be noted that plaintiff never admitted the agreementdated 08.03.1981 or alleged partition of 08.03.1981, it is, thus, clear thatparties remained joint and properties standing in the names of threebranches remained joint till the consent decree was passed on 06.08.1984.

96. Thus, in the year 1979 when residential property of Tatabadwas obtained in the name of defendant No.1, all three branches werepart of the joint Hindu family and the house property purchased in thename of one member of joint Hindu family was for the benefit of all.

97. Both the Courts below although accepted the partition dated18.03.1981 as pleaded by D-1 but erred in not considering theconsequence of such pleading. When partition of all immovable andmovable properties is claimed on 08.03.1981, the conclusion is irresistiblethat the family was joined till then. The theory set up by D-1 that all thethree branches were separate after 07.11.1960 is denied/belied by claimof partition on 08.03.1981.

A

B

C

D

E

F

G

H

A98. Both the trial court and High Court have given much emphasison the fact that three branches were filing separate Income-Tax Returnsand Wealth Tax Returns after 1967. An individual member of joint HinduFamily can very well file his separate Returns both under the IncomeTax Act as well as Wealth Tax Act and filing of such Returns was notconclusive of status of the family. The plaintiff’s case throughout wasBthat family continued to be joint after 07.11.1960 and D-1 who alone hadfiled the written statement and appeared in the witness box having comewith the case of partition on 08.03.1981 which he claims to be implementedon 06.08.1984 by Compromise Decree, it is proved that family was jointat least till then, i.e., 08.03.1981 or 06.08.1984. Thus, in the year 1979,Cwhen the Tatabad residential property was acquired, the three brancheswere joint.

A

A

99. The Tatabad residential property was for the benefit of all thethree branches which is further proved from the fact that the considerationfor the said amount was not paid by DW-1 from his separate account orDin cash. The amount was drawn from the private limited company Swamyand Swamy Plantation Private Limited in which all the three brancheswere shareholders and Directors. The Swamy and Swamy PlantationCompany had not purchased the residential property at Tatabad for thecompany. The Swamy and Swamy plantation private company is not theowner of the residential property and the residential property at TatabadEis a joint family property for the benefit of all the three branches.

100. We thus conclude that all three branches have equal share inthe Tatabad residential property, i.e., Item No.X of Schedule ‘B’ of plaintin Original Suit No.1101 of 1987. This residential property being not apart of O.S.No.37 of 1984, there is no bar in seeking partition of the saidFproperty by the plaintiff. Accordingly we declare that plaintiff/defendantNo.7, defendant No.1 and defendant No.4 are entitled to 1/3[rd] sharejointly in the aforesaid Item No.X of Schedule ‘B’ of the suit property (1/3[rd] share each to K. Rangasamy branch, S.K. Kumarasamy branchand S.K. Chinnasamy branch). Accordingly, a preliminary decree forGpartition shall be drawn for the aforesaid property.

101. Civil Appeal No.1537 of 2016 and Civil Appeal No.1538 of2016 are partly allowed. Consequently, the Original Suit No.1101 of 1987stands decreed to the extent indicated above, by granting a decree ofpartition of Item No.X of Schedule ‘B’, i.e., “In Coimbatore RegistrationHon District, Coimbatore Corporation Limits, Tatabad, Dr. Alagappa

Chettiar Road, D.No.101, Extent 0.33 acres with 4500 sq.ft. built-upresidential building.”

102. Parties are at liberty to make an application before the trialcourt for passing an appropriate final decree and such application is tobe disposed of by the trial court in accordance with law.

103. Parties shall bear their own costs.

Devika Gujral

Appeals partly allowed.

B

C

D

E

F

G

H