T.R. Ganesha Rao vs T.V. Tuljaram Rao and Another

Wallis, J.—In this suit the plaintiff who is the son of the 2nd defendant and the nephew of the first defendant complains that after a decree

had been passed in the partition suit No. 266 of 1886 against the 1st defendant and in favour of the 2nd defendant as representing himself and his

branch ordering the 1st defendant to pay a sum of Rs. 86,000 and odd with some further interest to the 2nd defendant, the 2nd defendant entered

into a compromise with the 1st defendant, and in pursuance of such compromise entered up satisfaction of the decree in respect of the aforesaid

sum. The present plaintiff was a party to that suit, and it follows therefore, in my opinion, that the objection taken by the 1st defendant that the

question in this suit is a question as to the satisfaction of the decree in the former suit between the parties to that suit is correct, and that

consequently it should have been dealt with in execution as provided in Section 244, Civil Procedure Code, and not by separate suit. The only

result of dismissing the suit on this ground would be that the plaintiff would apply in execution, which he has still time to do as he was born in

December 1887 and only came of age in December 1905. Under the circumstances of the present case, I have been asked for the plaintiff, to treat

the plaint as an execution petition, as on the authority of decided cases, I am entitled to do and 1 accordingly proceed to deal with it on that

footing.

It was at first contended for the plaintiff that the entry of satisfaction amounted to a gift of joint family property by the 2nd defendant as managing

member of his branch in favour of the 1st defendant. This contention is, in my opinion, untenable. The undertaking by the 1st defendant in the

agreement of compromise to withdraw his appeal against the decree in the partition suit No. 266 of 1886 was a substantial consideration for the

entering up of satisfaction and takes the latter out of the category of voluntary transfers. It was then contended that if the undertaking to enter up

satisfaction was not altogether devoid of consideration, still the agreement which contained it was not a bona fide compromise entered into by the

2nd defendant as manager of his branch and could not be upheld as such, and also that it was bad because the consent of the Court could not have

been obtained u/s 462 although the plaintiff as 6th defendant was a party to the suit. The former of these considerations requires to be carefully

considered. Apart from Section 462 it appears clear that a bona fide compromise by a father of a disputed claim which is the subject of a pending

suit is prima facie binding on his sons. Maharaja of Jeypore V. Jayakota 11 M.L.J. 70; Pitam Singh v. Ujagar Singh 1 A. 651; Sarabajit v. Indajit

27 A.p 203; Rai Gajindar v. Rai Harihar 2 C.W. 687. In the present case it is said that the compromise was not a bona fide compromise of a

disputed claim but was entered into by the 2nd defendant without regard for his own interest and that of his son, in the sole interest of his brother,

the 1st defendant here. The compromise itself (AA) recites that it was entered into ""with a view to terminate the litigation that has been going on in

the family for the past eleven years and more and to make an amicable settlement of all matters in dispute between the several members of the

family of the parties hereto"" and in consideration of the present defendant consenting to withdraw his appeal against the decree in O.S. No. 266 of

1886. For the first defendant it is contended that this is a correct transaction and that it ought to be upheld. The 2nd defendant is ex parte and is

apparently in sympathy with his son, the plaintiff, as he has himself been trying to get the compromise (AA) in the suit tried before this, but the

plaintiff has not called him and has relied exclusively on the admitted correspondence between the 1st and 2nd defendants prior and subsequent to

the compromise and on the various documents in the partition suit No. 266 of 1886. The first defendant also relies on the correspondence and

document, in the case and has also given evidence in his own behalf. As regards the partition suit No. 266 of 1886, in which the compromise was

effected, it may be mentioned that defendants Nos. 1 to 4 were brothers and that the plaintiff Atma Ram Rao was the son of the 2nd defendant

who had become insolvent and sought for a partition from him also. The family belonged to Tanjore, and the 4th defendant who was the youngest

brother lived in Madras, and has acquired a half share of the Scottish. Press who have for many years been printers to this Court. This half share

was held in the suit to be his self-acquisition. The final decree in the suit held the 4th defendant liable to account for Rs. 8,26,000 odd; on an

appeal by the plaintiff against the preliminary decree he was held accountable for an additional sum of about Rs. 1,40,000. The final decree held

that the remaining half share of the Scottish Press which had been purchased by the 4th defendant in execution of a decree against the former

partner had been purchased by him on behalf of the family and that he must further account to the family for half of his drawings from the Press

which half amounted to Rs. 1,00,300 odd, so that he was held accountable for a sum of Rs. 5,70,000 in all. The result was not only to absorb the

4th defendant''s share of the outstandings but to have him liable in a large sum to the other members of the family and in particular in a sum of over

Rs. 86,000 payable to the 3rd defendant, the 2nd defendant here. This sum must be taken to have been made payable to him as representing his

branch, as no separate provision was made for his infant son the present plaintiff who was 6th defendant in this suit. Now it appears from the

correspondence that if the decree had been enforced in full against the 4th defendant, he would have been ruined and driven in to the insolvency

Court, and I think it may be gathered that his connection with the Scottish Press would have ceased and that the family, if they acquired his half

share, would have had to work it by agents, as none of the others had any business experience. It appears further that both the 3rd and 4th

defendants were of opinion that the decree which held the 4th defendant accountable for this enormous sum bore very hardly on him and that he

had good grounds for appealing against it. Without any delay after the passing of the final decree in the suit, the 4th defendant retained the late Mr.

Robert Grant one of the leading Barristers in Madras, paying him a fee of Rs. 2,000 to file an appeal and it was filed as O.S.A. No. 4 of 1897 and

Rs. 400 were deposited for printing charges. Exh. 6 is the memo of appeal and shows that the appeal was valued at over Rs. 5,00,000. It is not

possible or desirable to express any opinion as to how far the 4th defendant''s appeal should have succeeded, but a perusal of the grounds appears

to show that there were several substantial questions for decision. One of the chief questions was whether the 4th defendant had purchased the

remaining half share of the Scottish Press on his own behalf, and if so, the family would have lost its half share of the Press, the assets of which are

estimated in the certificate at nearly 2 1/2 lakhs and also the Rs. 1,03,000 odd for which the 4th defendant had been held accountable to the family

in respect of the drawings from the Press and would only have had a claim against the 4th defendant for the advances made by him to his partner

out of the family funds and interest thereon, or under Rs. 50,000 speaking roughly. Another ground No. 17 was that the 4th defendant, as

managing member, should not have been held liable on the footing of wilful default for failure to collect Rs. 1,08,401 with interest and there are a

number of other points raised which appear to be at least arguable. The plaintiff has not given any oral evidence, and there is absolutely nothing in

the correspondence to show that this appeal should have not been prosecuted if the other parties had not shown a disposition to compromise. It

was essential to the 4th defendant that he should get Tulja Bhai, widow of the 1st defendant, and Atmaram Rao, the plaintiff, to enter up

satisfaction of the decree as well as the 3rd defendant. The correspondence filed refers mainly to the compromise with these parties, but does not

discuss the terms of these compromises in detail any more than it does the terms of the compromise Exh. AA with the 4th defendant. Obviously all

these compromises were discussed fully between the parties and their advisers before the agreements wore signed and satisfaction entered up.

During these negotiations it was only natural that the 4th defendant should have refrained from printing, on the expectation of a settlement, but the

negotiations took so long that he ran the risk of having his appeal dismissed for failure to print. Under the circumstances, I do not think any

inference can be drawn that the appeal was not bona fide or that it would not have been prosecuted if the other parties had refused to negotiate.

The agreement with the widow of the 1st defendant is dated 19th November 1897, Exh. Z; that with the 3rd defendant embodying the

compromise now called in question on the 21st November 1897, Exh. AA, and that with the plaintiff in that suit on the 6th December 1897, Exh.

LL, after the 3rd defendant and the 1st defendant had entered up satisfaction pursuant to Exh. AA. The latter agreement also recites that a

partnership agreement was to be drawn up under which the Scottish. Press was to be carried on by the 4th defendant, the 3rd defendant and the

plaintiff in partnership according to their respective shares and such a deed was admittedly drawn up but had not been settled. In my opinion, these

three agreements as to satisfaction of the decree must be regarded as a whole and as a family arrangement which put an end to the litigation which

has been going on for the last ten years. The terms of the agreement entered into by the 3rd defendant differed as did the circumstances of the

other parties to the agreements but it is quite clear that there was a family settlement which put an end to all disputes and enabled the plaintiff and

the 3rd and 4th defendants to carry on in partnership the valuable business of the Scottish Press which would have been jeopardized by further

quarrels between the parties and especially by the 4th defendant who was the only member of the family competent to look after it. The rule in

England is that the Court will support family arrangements and not scan too closely the quantum of consideration, Stapilton v. Stap ilton (1739) 1

At. K. 2 Williams v. Williams (1867) L.R. 2 Ch. 294. This rule is applicable to India; Ganpat Morolea and Ganpat Moraba v. Lakshmibai 5

B.H.C. R.128, Ram Nirunjun Singh v. Prayag Singh 8 C.k 133. If it applies at all it must, in my opinion apply to arrangements made by the adult

members of a Hindu family as to the terms of a partition of the family property, whether such arrangements be made before litigation or timing the

pendency of litigation. Under these circumstances, I am not prepared to re-open the arrangement which was come to in 1897 in the present case.

This brings me to the last point in the case. It is said that before satisfaction of the decree in C.S. 266 of 1886 was entered up by the 3rd

defendant pursuant to the agreement A A, which agreement was executed by the 3rd defendant on behalf of himself, and his minor son, the present

plaintiff, no application was made to the Court u/s 462, Civil Procedure Code, to sanction the compromise and that as the minor was a party to the

suit, it is now open to him to avoid it under the section. In my opinion, this objection confuses the two capacities in which the present 2nd

defendant was before the Court in the partition suit. I mean his personal capacity as 3rd defendant in the suit and his capacity as guardian ad litem

of the minor 6th defendant, who is the present plaintiff. Section 462 applies to compromises made by a ""next friend or guardian for the suit."" In this

case under the terms of the decree, the money, in respect of which the agreement AA was arrived at and satisfaction entered up, was made

payable to the 3rd defendant personally and not to the minor 6th defendant. If the minor had been represented by another guardian ad litem, the

3rd defendant could just as well have made the compromise and entered up satisfaction of the amount payable to him tinder the decree and it

could not have been suggested that Section 462 was applicable to the case. It makes no difference in my opinion that the 3rd defendant happened

to be the guardian ad litem of the 6th defendant, because in making the compromise and entering up satisfaction he was not acting as guardian ad

litem on behalf of the minor 6th defendant but as the defendant in the suit. The case of Virupokshoppa 26 B.k 109 is distinguishable, as in that case

there appears to have been a decree in favour of the minor and the compromise was entered into by his next friend on this behalf without the

sanction of the Court.

In the result I answer the third and fifth issues in the negative and dismiss the plaintiff''s suit with costs.