TMI Blog1936 (9) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... . Before dealing with the contentions advanced on either side by the learned counsel it is necessary to advert briefly to the history of this litigation. There were four brothers who formed a joint family, namely Soliyappa, Arunachala, defendant 1 in O.S. No. 56 of 1930, Muthuveerappa and Ramaswami, defendant 3 in the said suit. The plaintiff is the widow of the said Muthuveerappa and the appellant in this case, Meyappa, is the son of Solayappa who died in or about 1908. The appellant had a brother Natesa alias Ramaswami who was given in adoption to defendant 1 in this case, and he is also now defendant 2 in the said suit. The family appears to have owned considerable property. Apart from Immovable properties it carried on extensive trade in Rangoon, Penang, Saigon and other places. In or about 1924 the parties became divided with the aid of arbitrators. It appears that an arrangement was entered into at that time, that having regard to the incapacity of Muthuveerappa, the properties and moneys that fell or would fall to the share of Muthuveerappa should be taken care of and managed by defendants 1 and 3, and in pursuance of the said arrangement they did really undertake that duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the plaintiff, but also two other suits pending between them and Meyappa should be settled. 3. There seems to be no doubt that the object of defendants 1 and 3 was to somehow get at the estate of Muthuveerappa and not to let it go into the plaintiff's hands. It may also be presumed that Meyappa was anxious to have not only the litigations which he was involved in settled but also to get some share of Muthuveerappa's estate. It is also evident Meyappa being the next reversioner in degree to defendants 1 and 3, any arrangement entered into by defendants 1 and 3 in regard to the estate may be attacked by Meyappa when the succession really opened and the participation of Meyappa in any such settlement to be arrived at in regard to the estate would have been thought of by the parties; and further Meyappa actively helped the plaintiff, and in view of the fact that the deed between Meyappa and the plaintiff provides that no compromise should be entered into in the said suit O.S. No. 56 of 1930 without the consent of Meyappa, Meyappa would be a necessary party to be consulted in regard to any compromise that may be arrived at between the plaintiff and defendants 1 and 3 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the Rajah, the papers were handed over to the appellant. The appellant immediately filed two applications: one to make him a party to the suit and another to record the compromise and pass a decree in accordance therewith. The former petition was numbered as I.A. No. 673 of 1931, the latter petition was numbered as 674 of 1931. The applications were opposed both by the plaintiff and defendants 1 and 3. The case of the plaintiff as set out in her counter affidavit is that given in para. 5: I was told that the Kumbabhishekam of the temple at Virkadi in which the family of the parties was interested had to be performed and for that defendants 1 and 3 and the applicant had to co-operate and for that purpose my mark had to be taken to a paper which contained some arrangement between them. I was requested to affix my thumb impression to a paper that was placed before me by the applicant. Relying on the express assurance that nothing would be done without the consent of my aforesaid relatives and without knowing anything about the contents of the paper to which I was asked to affix my thumb impression I made my thumb impression and then the paper was left with Kumara Rajah M.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the truth and validity of the compromise in the absence of such a third party and the third party should be added so that the Court may be enabled to adjudicate effectively and once for all on the questions raised relating to the compromise. He accordingly declined to reject the petition in limine and directed that the evidence should be gone into, and proposed to deal with both the applications together. 6. Against this order a revision petition was filed being C.R.P. No. 1514 of 1931, and Madhavan Nair, J. dismissed this application holding that he cannot interfere at that stage as no final order was passed by the learned Subordinate Judge and it would be open to the parties to bring up the order in revision after he passed a final order after taking the necessary evidence. It may be stated that the evidence of the plaintiff was taken on commission between 11th September and 25th September 1932 and after the return of the commission both the petitions were taken up for hearing. The then Subordinate Judge, Mr. Parthasarathy Iyengar, made an order in and by which he directed that the plaintiff must adduce evidence first and then defendants 1, 3 and 4. In pursuance of that or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is difficult to understand the observation of the learned Judge how a stranger to the record can enforce a compromise except of course by a separate suit with the direction that the petition to implead a party should be gone into. If the view of the learned Judge is correct the petition ought to be dismissed in limine. But however there the order stands and I find the learned Judge had the approval of the eminent counsel on both sides, at any rate counsel for the appellant because he says: It may be pointed out and in this learned counsel for the respondent in this Court agrees that both according to sound procedure and logic the two matters must not be mixed up. 8. When the matters went up to the lower Court and were taken up for hearing, an application was made on behalf of defendant 3 to expunge his evidence from the record on the ground that he would not have given evidence in the party petition but for the fact that the enquiry in both the petitions were taken up. The learned Judge, Mr. Parthasarathy Iyengar, having regard to the directions of Krishnan Pandalai, J. that one of the matters to be considered in the party petition was whether the parties freely and genu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he course of the judgment they made certain observations regarding the rights of parties with reference to both the said petitions I.A. Nos. 673 and 674 of 1931. Sundaram Chetty, J. observed as follows with regard to the right, of the appellant to enforce the compromise: If respondent 1 is a person claiming under defendants 1 and 3 within the meaning of Section 146, then the application to enforce the razinamah, which defendants 1 and 3 are entitled to make Under Order 23, Rule 3, Civil P.C., may also be made by respondent 1. If respondent 1 is an assignee of an interest in the subject matter of the suit from defendants 1 and 3 under the compromise agreement, the suit may by leave of the Court be continued by or against him Under Order 22, Rule 10, Civil P.C. The acquisition of such a right may weigh with the Court in exercising its discretion for adding him as party on his application Under Order 1, Rule 10. 10. Again he observed in respect of the alleged razinamah: A third party, viz., respondent 1, claiming to have acquired an interest therein as an assignee, wants to be added as a party for the purpose of enforcing the compromise, while the plaintiff and the defendants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low or to dismiss his application. This however is a distinction without a difference . * * * It must be noticed in this connection that respondent 1 applied to be made a party for the purpose of enforcing the compromise. 12. He observed again: The application to be made a party was merely preliminary to the application to enforce the compromise and unless the former is decided on its merits it would not be possible to dispose of the other application which involves substantial rights. 13. In one portion of the judgment the learned Judge suggests that if respondent 1 is an assignee he is entitled to be made a party to the suit and therefore whether he is an assignee under the compromise has to be gone into. This may be deemed to accord with the view of Sundaram Chetty, J. But in another portion of his judgment he seems to indicate that the party petition must be proceeded with before the compromise petition Under Order 23, Rule 3, is proceeded with. I do not know if the learned Judge wanted that the order of Krishnan Pandalai, J. should be allowed or not. The petition Under Order 1, Rule 10 was finally taken up for hearing by the learned Subordinate Judge Mr. Krishnamachar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the appellant had filed the application in the lower Court Under Order 1, Rule 10, and no appeal lies against an order made under that section. Mr. Sreenivasa Iyengar contends the learned Judge also dealt with the application Under Order 22, Rule 10 and he filed both a C.M.A. and a C.R.P. When both the matters came on for admission before Burn, J. he admitted the C.M.A. taking the view that an appeal lay and dismissed the C.R.P. on the ground that in view of the fact that an appeal lies no revision can lie. It would have been better if the learned Judge had kept both of them on the file, but as it is, there is only the appeal before me. Mr. Sreenivasa Iyengar stated that he would argue this appeal on the footing that the application is sustainable Under Order 22, Rule 10 but should he fail to convince me in regard to that he would request that the appeal may be treated as a revision petition against an order made Under Order 1, Rule 10 and that he would satisfy me that the application made by his client is sustainable also under the said rule. It seems to me, on reading the judgment of the lower Court, the learned Judge, though he purported to deal with the application Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contents himself with the remark: It is doubtful if it is wholly true. But in regard to the other questions though the learned Judge has found in her favour, on the present state of the evidence having regard to the course the proceedings took, it will be difficult to sustain the findings. Relevant evidence has not been let in. In my opinion the evidence of disinterested persons like Rajah Sir Annamalai Chetty, K.V. Ramaswami Iyer, V.S. Lakshminarayana Iyer, will be very material in arriving at the truth of the pleas raised by the plaintiff and defendants 1 and 3 as to the legality and validity of this compromise. Their evidence would be absolutely material and one or the other of the parties would have let in the said evidence if the parties understood that a finding as to these matters will be given. But as it is the parties must be deemed to have been misled, no doubt partly owing to the conflicting orders which led the Court and the parties to believe that such evidence will not be taken in the party petition which was being enquired into first. Therefore the findings in regard thereto must be set aside. I should have been disposed to remand this matter for necessary evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amayya (1878-80) 5 Mad 52. There Turner, C.J. observed: To accept the more restricted interpretation involves the addition of words which we do not find in the section, namely, between the parties to the suit, and. there can be few if any questions. . which cannot be determined between the parties to the suit one way or the other, and of which the determination, if they be material, will, as between the parties to the suit, not be final. On the other hand, the interpretation warranted by the terms would enable the Court to avoid conflicting decisions on the same question which would work injustice to a party to the suit, and finally and effectually to put an end to litigation respecting them. 18. The underlying principle regarding the addition of parties is that there must be finality to litigation, and to secure that purpose it would be incumbent upon the Court to add a party whose presence would be necessary to put an end to all the controversy in the litigation finally. This is the view taken by a Division Bench of this Court in Seethai Achi v. Meyyappa Chettiar AIR 1934 Mad 337 , in this very case where Sundaram Chettiar, J. relying on Vaidhyanadayya v. Sitaramayya (1878- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compromise. The Court cannot forget to notice the fact that the plaintiff had made an adoption before the compromise was made a decree of the Court. When the compromise itself is impeached on one ground or other by either party to the litigation and none of the parties seeks to enforce it, I do not think it would be a proper exercise of discretion at the instance of a third party who alleges that he has acquired rights thereunder to make him a party for the purpose of enforcing the compromise especially in the view I have taken that there is no transfer of any interest in the subject matter of the litigation in his favour. The matters relating thereto can and ought to be properly determined in a suit. Further I find a suit has been instituted by the appellant for a declaration that the compromise is binding on all the parties to the said suit and wherein the adopted son is also a party and the necessary issues have been framed thereunder. Mr. T.M. Krishnaswami Iyer on behalf of defendants 2 and 3 has also intimated to me that in regard to none of the issues raised in the said suit his clients would press the plea of res judicata. As therefore all the questions relating to the compr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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