R.V. Shakunthala and Others vs N. Rajkumar and Others

B.S. Patil, J.—This Regular Second Appeal is filed challenging the judgment and decree dated 17.03.2010 passed by the learned Additional Sessions Judge, Chitradurga, thereby allowing R.A. No. 51/2008 by setting aside the judgment and decree passed by the learned Civil Judge (Sr.Dn.), Chitradurga, in O.S. No. 23/1998 and dismissing the suit filed by the plaintiffs.

Appellants were plaintiffs 1 to 3 before the Trial Court. They filed the suit seeking cancellation of the compromise petition and compromise decree dated 25.08.1994 passed in O.S. No. 141/1994 by the learned Civil Judge, Chitradurga and for partition and separate possession of plaintiffs'' 1/5th share in suit ''A'' schedule properties along with a declaration that plaintiffs were entitled exclusively for ''B'' schedule house and ''C'' schedule movables which according to them, were the absolute properties left behind by deceased Dr. N. Dakeshappa.

Plaintiff No. 1 is the mother of plaintiffs 2 and 3. Dr. N. Dakeshappa was the husband of the 1st plaintiff and father of plaintiffs 2 and 3. Husband of plaintiff No. 1 died on 18.07.1994. Thereafter, his brothers along with his sister and mother deceased Nagamma instituted a suit in O.S. No. 141/1994 on the file of Civil Judge, Chitradurga on 09.08.1994 seeking partition and separate possession of the suit schedule properties therein. The said suit was compromised based on a compromise petition jointly filed by plaintiffs herein and the other members of the family vide order dated 25.08.1994. As per the said compromise, plaintiff No. 1 Nagamma gave up her share in favour of other plaintiffs. Item No. 3 of ''A'' schedule was given to 2nd plaintiff Renukamma, one portion of RCC house to the eastern side in ''A'' schedule in item No. 3 was given to plaintiff No. 3 N. Manjunatha. Item No. 1 in ''A'' schedule was given to plaintiff No. 4 - N. Chandrahasa and item No. 4 in ''A'' schedule was given to plaintiff No. 5 N. Rajkumar.

Appellants-defendants 1 to 3 were given item No. 2 in ''A'' schedule jointly as their share on condition that shares of the minors shall not be alienated by defendant No. 1 during their minority. They were also given all the movable properties mentioned in schedule ''B''.

Thereafter, one of the brothers Manjunath -defendant No. 1 herein has sold his share in favour of third party purchaser. The purchaser is not made a party in the suit seeking to set aside the compromise decree passed.

The case of the plaintiffs is that within 21 days from the date of death of her husband, on 09.08.1994 her mother-in-law along with her brother-in-laws and sister-in-laws instituted the suit O.S. No. 141/1994 seeking partition in respect of house property bearing Assessment No. 5777/5187 measuring East to West 30 feet and North to South 20 feet having khatha No. 1812 described as ''B'' schedule in the present suit and the movables mentioned at ''C'' schedule though they were self-acquired properties of Dr. N. Dakeshappa, late husband of 1st plaintiff and father of plaintiffs 2 and 3; when plaintiff No. 1 was bereaved, during mourning, defendants took away all the ''C'' schedule movables; after a complaint was filed to the Police, a fiat car was given back to the possession of the plaintiffs, but ''C'' schedule movables were not handed over to the plaintiffs. During such period, defendants had filed O.S. No. 141/1994; plaintiffs herein were not served with suit summons, but exerting force and threat, defendants 1 to 4 made plaintiff No. 1 sign some papers alleged to be papers to handover possession of ''C'' schedule movables to the plaintiffs which were taken from defendants 1 to 4 from the house of the plaintiffs. Believing the words of defendants 1 to 4, plaintiff No. 1 signed the papers. Later plaintiffs learnt that the signatures of plaintiff No. 1 were taken to the alleged compromise and vakalath, but plaintiff No. 1 had not at all engaged any advocate. Plaintiffs were allegedly taken to the Court by the defendants and were threatened not to disclose anything to the Presiding Officer; in order to save their lives and to avoid threat to their life, plaintiff No. 1 signed the order sheet as dictated by defendants 1 to 4; plaintiffs were brought to the Court by defendants stating that movables of the plaintiffs would be returned to them, if plaintiff No. 1 signed the papers in the Court. Only in the month of May, 1997 plaintiffs came to know that defendants 1 to 4 and their mother had filed O.S. No. 141/1994 for partition against them and they had obtained a compromise decree by practicing fraud, coercion, threat and undue influence.

Plaintiffs further alleged that the terms and conditions of the alleged compromise petition were not read over and were not within the knowledge of the plaintiffs. They also urged that the compromise was illegal, unjust, invalid and not binding on the plaintiffs. They contended that defendants 1 to 4 did not give possession of the properties shown to have been fallen to the share of plaintiffs as mentioned in the alleged compromise petition; defendants 5 to 8 were tenants of ''B'' schedule property; the rooms were let out to them by the husband of the 1st plaintiff, but after the death of her husband, defendants 1 to 4 were receiving the rent of ''B'' schedule property from defendants 5 to 8; plaintiffs 2 and 3 were minors; their interest was not safeguarded by plaintiff No. 1 acting as their guardian due to the fraud committed by defendants 1 to 4. Therefore, plaintiffs sought for cancellation of the compromise decree.

Defendants 1, 4 to 8 though served remained absent. Hence, they were placed ex-parte. Defendant No. 2 died during the pendency of the suit and his L.Rs. were brought on record. Defendant No. 2(b) and (d) filed written statement, so also defendant No. 3. Defendant No. 3 denied the averments made in the plaint. He urged that his father Narasimhappa and deceased N. Dakeshappa along with other family members constituted Hindu undivided joint family. His father Narasimhappa transferred suit ''B'' schedule property in the name of deceased N. Dakeshappa and that is how the khatha was entered in the name of N. Dakeshappa. He urged that ''C'' schedule properties were also joint family properties. Defendants 1 to 4, he claimed had equal right over ''B'' and ''C'' schedule property, as they had been acquired by deceased Narasimhappa out of joint family funds. He contended that O.S. No. 141/1994 was filed on 09.08.1994, after the death of N. Dakeshappa as plaintiff No. 1 was making efforts to dispose of the schedule ''B'' and ''C'' properties taking undue advantage of the fact that ''B'' schedule property was standing in the name of her husband deceased Dakeshappa, so as to make wrongful gain and cause wrongful loss to defendants 1 to 4. He further urged that based on the compromise decree, khatha of ''B'' schedule property had been transferred in the name of defendant No. 3.

Based on the pleadings, the Trial Court framed necessary issues regarding proof by the plaintiffs of their exclusive right over plaint ''B'' schedule property as self acquired property of Dakeshappa and also as to whether plaintiffs proved that plaintiff No. 1 was forced and threatened by defendants 1 to 4 to sign the papers and the compromise petition filed in O.S. No. 141/1994 and therefore, the compromise recorded was not binding on them. The entitlement of the plaintiffs for share in suit ''A'' schedule properties apart from absolute rights over ''B'' and ''C'' schedule properties was also framed as an issue.

Plaintiff No. 1 examined herself as P.W.1. Plaintiff No. 2 N.D. Deepthi was examined as P.W.2. Three other witnesses were examined. Exs. P1 to P91 were marked in evidence. For the defendants, defendant No. 3 was examined as D.W.1. Exs. D1 to D3 were produced and marked in evidence. The Trial Court decreed the suit recording a finding that Ex. P.89 - licence issued by the Town Municipal Office, Chitradurga disclosed that construction licence was issued in the name of Dakeshappa and Ex. P91 was the certified copy of the building plan obtained by him. The said documents, according to the Trial Judge substantiated that deceased Dakeshappa was the absolute owner of suit ''B'' schedule property and had constructed the building over ''B'' schedule property by obtaining permission during the year 1985. Though the Trial Court finds that ''B'' schedule property was purchased when Dakeshappa was a minor in the year 1964 and later on his father expired in 1979 and thereafter, the building was constructed in the year 1984-85, it has recorded a finding holding that as the licence was obtained by Dakeshappa, so also the building plan, it had to be held that ''B'' schedule property absolutely belonged to Dr. N. Dakeshappa and it is he, who had constructed the building on the same.

Insofar as allegations of fraud, coercion and misrepresentation are concerned, the Trial Court held that suit O.S. No. 141/1994 had been instituted barely within 21 days after the demise of the husband of plaintiff No. 1 and before the suit summons and notices on the I.As. filed for temporary injunction along with other applications could be served on the plaintiffs. Though the matter had been adjourned to 17.09.1994, the Advocate for the plaintiff had filed I.A. to take up the case on 25.08.1994. Accordingly, the case was advanced to 25.08.1994 on which date the compromise was recorded. The Trial Court persuaded itself to hold that the compromise was the result of fraud as emergent notice issued to defendants was not served on them and no process was paid against the defendants. It also found that memo filed on behalf of the defendants in O.S. No. 141/1994 paying Court fee of Rs. 200/- was in the handwriting of the Advocate of the plaintiff one R. Jagadish, though it contained the signature of the Advocate Sri HKV who had signed for the defendants. The Trial Court also refers to application filed under Order XXXII Rule 6(1) read with Section 151 CPC on behalf of 1st defendant for appointment of guardians for the minors defendants 2 and 3 and seeking permission to enter into the compromise and found that it was a typewritten one and in the end word ''plaintiffs'' was scored off and in its place word ''defendants'' was entered and the said words also seemed to be in the handwriting of the Advocate for the plaintiffs and it was clear that I.As. and the documents were typed from the same typewriter. The Trial Court further refers to transfer of name in RC Book pertaining to a fiat car in the name of 3rd defendant. Thus, the Trial court has found that the compromise was the result of fraud and was liable to be set aside. Plaintiffs have been held entitled for partition and separate possession of their 1/5th share in the suit ''A'' schedule properties and were declared as absolute owners entitled for possession of ''B'' schedule properties. They are also held entitled to the movable properties i.e., a car and motorcycle as legal heirs of Dr. N. Dakeshappa apart from being entitled for mesne profits in ''A'' and ''B'' schedule properties.

This judgment and decree passed by the Trial Court was challenged in appeal. The lower Appellate Court, on re-appreciation of the entire materials has allowed the appeal by setting aside the judgment and decree passed by the Trial Court. The suit filed by the plaintiffs has been dismissed. Aggrieved by the same, the present second appeal has been filed.

While admitting the appeal, this Court has framed the following substantial questions of law:

"1. Whether the lower Appellate Court was justified in passing a cryptic judgment without re-appreciating the pleadings and documents in exercise of its power under Section 96 CPC with reference to allegation of fraud?

Whether the lower Appellate Court was justified in not re-appreciating the pleadings and evidence while reversing the findings on issues 2 to 6 in O.S. No. 26/1998?"

During the course of arguments, learned counsel for defendants raised a question regarding maintainability of the suit in view of the bar contained under Order XXIII Rule 3A of CPC. Therefore, the substantial question of law regarding maintainability of the suit having regard to the bar contained for filing a separate suit is framed as under-

"Whether a separate suit is maintainable to set aside a decree passed on a compromise on the ground that the compromise on which the decree was passed was obtained by fraud, coercion and undue influence in view of the bar contained under Rule 3A of Order XXIII CPC?"

Both the learned counsel have taken time to prepare themselves on the substantial questions framed and have addressed their arguments on the same.

Learned counsel for the appellant Sri Siddappa has strongly urged that question of maintainability of the suit cannot be permitted to be raised in the second appeal. He places reliance on Section 21 of CPC and the judgment of the Patna High Court in the case of Dilip Gupta and Another Vs. Debashish Palit and Others to urge that plea relating to bar of Order XXIII Rule 3A CPC not taken at the inception of suit thereby providing opportunity to the plaintiff to withdraw the suit and file a miscellaneous case in the previous suit wherein the compromise decree was passed cannot be taken later. He has also placed reliance on the judgment in S.G. Thimmappa Vs. T. Anantha and Others, AIR 1986 Kar 1 : (1985) ILR (Kar) 1933 : (1985) 2 KarLJ 131 to urge that a party who challenges the compromise on the basis of fraud, undue influence or coercion has the remedy of filing a suit and as also the remedy of making an application under Section 151 and that the ground of fraud, undue influence, coercion in entering into compromise was not covered by the words ''not lawful'' appearing in Rule 3A of Order 23 CPC, therefore a compromise decree can be challenged by filing a suit on the ground of fraud, coercion and undue influence and Rule 3A of Order XXIII would not be a bar for such a suit.

Learned counsel for the respondents Smt. Susheela has relied on the judgments of the Supreme Court in the case of Pushpa Devi Bhagat (D) th. LR. Smt. Sadhna Rai Vs. Rajinder Singh and Others, AIR 2006 SC 2628 : (2006) 6 JT 235 : (2006) 7 SCALE 8 : (2006) 5 SCC 566 : (2006) 3 SCR 370 Supp : (2006) AIRSCW 3549 : (2006) 5 Supreme 403 to contend that no independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful.

As can be seen from the pleadings, issues and evidence adduced, the plea now sought to be raised regarding bar for filing the suit has not been raised. Had it been raised, the plaintiff would have withdrawn the suit and filed appropriate application before the Civil Court in the same suit. Therefore, at this distance of the time, I do not find it just or legal to non suit the plaintiff on this ground. As the parties have adduced evidence regarding the plea of fraud, coercion and undue influence and both the Courts have examined the entire matter and returned findings on the issues raised, I do not deem it just and proper to enter into this technical aspect to terminate the proceedings on that ground.

As regards the other substantial questions of law raised, it is necessary to deal with the facts that are borne out from the evidence on record and the findings of the Courts below:

"(i) The Trial Court holds that ''B'' schedule house property was the self acquired property of Dr. Dakeshappa. Basis for this finding is the katha entered in the Municipal records in the name of Dakeshappa and the license and sanctioned plan issued in the name of Dakeshappa for construction of a building on the site in question. The Lower Appellate Court has re-appreciated this evidence and has taken into consideration Exs. D1 and D.2. It has held that the original propositus Narasimhappa had four sons. Husband of the 1st plaintiff and defendants 1 to 3 being the said four sons constituted joint family."

The main contention of the plaintiffs in the suit is that B schedule property was the self acquired property of the first son Dr. N. Dakeshappa. This was denied by the defendants. The assessment extract of schedule B property which is a house property bearing No. 5187 has been produced by the defendants at Ex. D2. This extract is for the year 1975-76. The description of the property is shown as meaning thereby a shed consisting of Mangalore tiles having door towards East with 40 X 26 measurement. In the column pertaining to the name of the owner, it is shown as Narasimhappa having purchased the same from one Ramappa, son of Kolla Bhovi. After bracketing the name of Narasimhappa, his wife Nagarathna''s name is shown as owner. Thereafter, the name of Dakeshappa, son of late Narasimhappa has been shown. The copy of this assessment extract has been obtained in July, 1994. This clearly discloses that B schedule property stood in the name of the father of defendants 1 to 3 and late Dakeshappa, the husband of plaintiff No. 1.

Ex. D1 is the Sale Deed produced by the defendants which discloses that open site was purchased by Narasimhappa on 02.12.1964 and it is based on this Sale Deed, his name was recorded in the municipal records as owner in possession and on his death, the name of his wife was recorded and later on, the name of husband of plaintiff No. 1 Dr. N. Dakeshappa came to be recorded.

The lower Appellate Court has rightly appreciated these documents to come to the conclusion that after the death of Narasimhappa his four sons i.e., husband of plaintiff No. 1 and defendants 1 to 3 along with their mother inherited the said property. The husband of plaintiff No. 1 being the eldest male member of the family, his name was recorded in the municipal records. Therefore, merely because only the name of the eldest son Dr. N. Dakeshappa was mentioned in the municipal records, it could not be said that the said property was the self-acquired property of Dakeshappa. The lower Appellate Court has rightly found that without examining this important aspect, the Trial Court had come to an erroneous conclusion that B schedule property was the self-acquired property of Dakeshappa.

Similarly, mere fact that license and the sanction plan was issued in the name of Dakeshappa for putting up construction in the said property cannot automatically prove that the property was the self acquired property of Dakeshappa. The lower Appellate Court has held that being the eldest son, as his name was recorded in the municipal khatha, after the death of his father, naturally the sanction plan and license were also issued in his name, whereafter the construction was made by the joint family. No material has been produced to show that the said construction was put up out of the exclusive earnings of Dr. N. Dakeshappa.

The lower Appellate Court has also clearly found that merely because the tenants in occupation of B schedule property had executed rent agreement and the rents were received by Dakeshappa, it would not prove that he was the exclusive owner of the said property. As the property was acquired by the propositus Narasimhappa, unless legally acceptable evidence was produced by the plaintiff to show that the said property was given to the exclusive share of Dakeshappa either by way of partition or by way of relinquishment of rights of other co-owners in favour of Dakeshappa, the said property cannot be regarded as exclusive or self acquired property of Dakeshappa.

Insofar as the compromise arrived at in O.S. No. 141/1994, the lower Appellate Court has found that the plaintiffs were allotted equal share. The main allegation of the plaintiffs as regards the compromise decree is that the same was obtained by playing fraud, coercion and undue influence on the plaintiffs by defendants 1 to 3. To discharge the burden placed on the plaintiffs in this regard, they have not led any material evidence. Filing of the suit within 21 days from the date of death of husband of plaintiff No. 1 by her mother-in-law, brother-in-laws and sister-in-laws; non-service of suit summons on the plaintiffs and the plaintiffs themselves appearing before the Court; memo filed on behalf of the defendants in O.S. No. 141/1994 paying court fee of Rs. 200/- being in the handwriting of the advocate of the plaintiff one R. Jagadish though it contained the signature of the advocate Sri HKV who had signed for the defendants and that the application filed for appointment of guardian for the minor -defendants 2 and 3 and for seeking permission to enter into the compromise was typewritten and contained at the end, the word ''plaintiffs'' which was scored off and in its place word ''defendants'' were entered which seemed to be in the handwriting of the advocate for the plaintiffs and that the IAs and the documents were typed from the same typewriter cannot prove misrepresentation, fraud and coercion which have been all pleaded altogether. The lower Appellate Court has dealt with this aspect in paragraph 14 of its judgment. It has held that plaintiff No. 1 did not deny her signature on the compromise petition. A perusal of the compromise petition discloses that she was also allotted a share in the joint family property. More importantly the Appellate Court has recorded a positive finding holding that B schedule property was the ancestral property and not the self acquired or exclusive property of late Dakeshappa. In fact, the entire grievance of fraud, undue influence and coercion takes colour from the grievance made by the plaintiffs that though B schedule property was the self acquired property of late Dakeshappa, because of coercion, undue influence and fraud attributed to defendants 1 to 4, the 1st plaintiff sacrificing the interest of the minors, was forced to sign certain documents including the so called compromise petition, whereunder B schedule property was also treated as ancestral property and was allotted to the share of the plaintiffs and no share was given to the plaintiffs in other properties.

Apart from the above, the other allegations being that the terms and conditions of the compromise petition were not read over to the plaintiffs and that plaintiff No. 1 was forced and threatened by defendants 1 to 4 to sign certain papers by misrepresenting that the said papers were required for handing over possession of C schedule movables which were taken away by defendants 1 to 4 from the house of the plaintiffs. Plaintiff No. 1 further alleged that believing the words of defendants 1 to 4, she signed the papers given to her and subsequently she learnt that those papers were the papers on which defendants 1 to 4 had taken her signature 1 for the alleged compromise and vakalath. She further stated that she had not appointed any advocate and it was defendants 1 to 4 who got an advocate appointed of their choice to represent the plaintiffs and that the plaintiffs were taken to the Court by the defendants and were threatened not to open their mouth and because of this threat to their life, plaintiff No. 1 signed the order sheet at the dictation of defendants 1 to 4.

It is pertinent to note that the plaintiffs have not examined the advocate who represented them before the Trial Court in O.S. No. 141/1994. The evidence of the advocate would have thrown light on the allegation made by the plaintiffs. It is in this background, the lower Appellate Court has held that plaintiffs failed to discharge the burden cast on them of proving the allegations of fraud, coercion and misrepresentation. It has therefore rightly found that in the absence of material evidence placed before the Court by the plaintiffs, the Trial Court committed a serious error in holding that the compromise decree was the outcome of coercion and fraud. Thus, when the plaintiffs failed to establish that B schedule property was the self acquired property of Dakeshappa and that there was fraud, coercion or misrepresentation, due to which plaintiff No. 1 was forced to sign the compromise petition and also that the defendants themselves engaged a counsel for the plaintiffs by obtaining her signatures on the vakalath, the entire case pleaded by the plaintiffs would fall to the ground.

As rightly contended by the learned counsel for the defendants/respondents, a perusal of the order sheet in O.S. No. 141/1994 reflects that the Court read over the contents of the compromise petition; the parties were represented by their counsel; the Court verified from the parties and satisfied regarding the terms of the compromise being voluntarily agreed by and between the parties. A certificate of the counsel was produced certifying that the compromise was beneficial for the minors and the same was taken on record. The order sheet further reveals that the Court which recorded the compromise was satisfied that the compromise was in the interest of minors and such satisfaction has been placed on record.

It is thus clear that the Court was conscious of the fact that the suit was for partition of the joint family properties and the interest of minors was taken care of. More importantly, the terms and conditions agreed upon by the parties had been so agreed voluntarily. To prove that what has been reflected in the order sheet in O.S. No. 141/1994 by which the compromise was recorded did not reflect the true state of affairs and that the compromise was not voluntary but was obtained by duress and misrepresentation and that plaintiff No. 1 was not represented by any advocate of her choice and that the compromise was not at all in the interest of minors, heavy burden was cast on the plaintiffs to establish the same. Another important aspect that deserves to be noted here is that compromise decree was passed on 25.08.1994, but the suit for cancellation of the decree has been filed on 29.01.1998 nearly after 3 1/2 years. If plaintiff No. 1 was forced to sign the compromise petition and if the plaintiffs were threatened with dire consequences not to open their mouth before the Court at the time when the court recorded the compromise petition, which is the specific case pleaded in the plaint, it would not take 3 1/2 years for the plaintiffs to challenge such compromise. The Trial Court has not looked into this conduct of the plaintiffs. It is, therefore, clear that as rightly held by the lower Appellate Court, plaintiffs had failed to prove the allegations of fraud, coercion and undue influence, by leading material evidence.

In my view, the lower Appellate Court has not committed any illegality or error in reversing the findings of the Trial Court on all the issues.

Keeping in mind the nature of the grievance made by the plaintiffs-appellants herein, the matter has been examined at length with reference to the original records. On perusal of the same, it emerges that the family properties have been partitioned in terms of the compromise and plaintiff No. 1 has admitted in her evidence that all death benefits of late Dakeshappa have been received by her and nothing was given to the mother of Dakeshappa. The assertion of the plaintiffs that suit B schedule property was the ancestral property has been disproved by producing the Sale Deed Ex. D1 and assessment extract Ex. D2 of the said property which disclose that it was purchased by Narasimhappa, the propositus and was therefore the joint family property. No evidence was led to show that Dakeshappa had constructed, out of his own exclusive savings, the RCC house in the said B schedule property. Therefore, the very foundation of the case set up by the plaintiffs is totally weak and slippery. In addition, the delay in approaching the court, the inconsistent stand taken in the pleading itself asserting that the compromise was the result of fraud, coercion and misrepresentation, without specifying how all the four can co-exist in the given facts of the case is inconceivable. It has to be also seen that there has been equitable partition as immovable properties have been allotted to the shares of sons and daughter of the propositus Narasimhappa. The present plaintiffs have been allotted the immovable property to their share consisting of a house apart from other movable properties. There is nothing to show that any illegality has been committed or injustice has been done.

For all the aforementioned reasons, I am of the view that the substantial questions of law framed deserve to be answered against the appellants. This Regular Second Appeal is, therefore, liable to be dismissed. Accordingly, the same is dismissed confirming the judgment and decree passed by the lower Appellate Court. No costs.

The interlocutory application filed seeking direction is also dismissed as having become unnecessary.