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2021 (6) TMI 1140 - SC - Indian LawsPartition of joint family property - Maintainability of application - whether Suit No. 1101 of 1997 filed by the plaintiff Somasundaram challenging the compromise decree dated 06.08.1984 was barred under Order XXIII Rule 3A? - compromise decree questioned by High Court - HELD THAT:- A party to a consent decree based on a compromise to challenge the compromise decree on the ground that the decree was not lawful, i.e., it was void or voidable has to approach the same court, which recorded the compromise and a separate suit challenging the consent decree has been held to be not maintainable. In Suit No.1101 of 1987, the plaintiff prayed for a declaration declaring that the decree passed in O.S. No. 37 of 1984 is sham and nominal, ultravires, collusive, unsustainable invalid, unenforceable and not binding on the plaintiffs - On the basis of grounds which have been taken by the plaintiff in Suit No.1101 of 1987, the only remedy available to the plaintiff was to approach the court in the same case and satisfy the court that compromise was not lawful. Rule 3A was specifically added by the amendment to bar separate suit to challenge the compromise decree which according to legislative intent to arrest the multiplicity of proceedings. We, thus, do not find any error in the judgment of trial court and High Court holding that Suit No.1101 of 1987 was barred under Order XXIII Rule 3A. We having found that Suit No.1101 of 1987 being barred under Order XXIII Rule 3A, it is not necessary for us to enter into correctness or otherwise of the grounds taken in the plaint for questioning the compromise decree dated 06.08.1984. The compromise decree dated 06.08.1984, thus, could not have been questioned in Suit No. 1101 of 1987. Partition of joint family of three branches - main plank of submission on behalf of respondent No.1 is that after the partition dated 07.11.1960, the three branches had separated and joint family status came to end - HELD THAT:- In Bhagwan Dayal Vs. Reoti Devi, [[1961 (9) TMI 90 - SUPREME COURT]], this Court examined the principles of Hindu Law and principles of Hindu Joint Family. In paragraph 16, it was held that the general principle is that every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence or by course of conduct. It is the case of the defendant No.1 that the compromise decree dated 06.08.1984 is nothing but implementation of agreement dated 08.03.1981. It is, thus, clear that the case of D-1 is that there was partition of all properties standing in the names of three branches and allocated to different branches on 08.03.1981, which has been subsequently implemented by consent decree dated 06.08.1984. As per the case of defendant, the Vasudeva Textiles Mills was given to the branch of Rangasamy, property at Coonoor was taken by D-1 and properties at Somnur by D-4 - When the D-1 comes with the case that there was partition on 08.03.1981 of all immovable properties standing in the names of three branches, which was implemented on 06.08.1984, the conclusion is irresistible that family was joint and had the three branches were not part of joint Hindu family, there was no occasion for attempting any partition on 08.03.1981 as claimed by D-1. The fact that defendant No.1 is coming with the case that there was partition on 18.03.1981 itself proves that three branches were joint till then as per case of D-1 himself. It is concluded that all three branches have equal share in the Tatabad residential property, i.e., Item No.X of Schedule 'B' of plaint in Original Suit No.1101 of 1987. This residential property being not a part of O.S.No.37 of 1984, there is no bar in seeking partition of the said property by the plaintiff. Accordingly we declare that plaintiff/defendant No.7, defendant No.1 and defendant No.4 are entitled to 1/3rd share jointly in the aforesaid Item No.X of Schedule 'B' of the suit property ( 1/3rd share each to K. Rangasamy branch, S.K. Kumarasamy branch and S.K. Chinnasamy branch). Accordingly, a preliminary decree for partition shall be drawn for the aforesaid property. Civil appeal partly allowed.
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