Venkatappa Nayanim and Another vs Thimma Nayanim and Others

This suit was brought for a partition of the Kalahastri zamindari and was based on the assumption, that the zamindari was partible. The action

was compromised by the parties and a razinamah was presented to the District Court in order that it might be recorded, and a decree passed

thereon in accordance with the provisions of Section 375 of the Civil Procedure Code. The preamble to the terms of the compromise expressly

lays down that the zamindari is impartible and has always descended and must always descend according to the rule of primogeniture; thus

negativing the basis of the claim on which the suit was brought. Before the District Judge it was objected that some of the stipulations of the

compromise do not relate to the suit, and therefore should not have been embodied in the decree. The Judge, however, decided that all the

stipulations should be embodied and passed a decree accordingly.

Two questions arise for decision: (1) whether the stipulations in the razinamah ""relate to the suit?"" and (2) whether any and what decree should

be passed?

The suit being for partition, it is contended by the respondents that the whole family estate and its apportionment is the subject-matter of the suit,

and hence that any decree which relates to the family estate can be properly described as one which relates to the suit. It is also pointed out that

part of the property may follow the rule of primogeniture, while the rest may be divisible under the Mitakshara law.

The suit being for partition, it is clear that all the clauses of the compromise which relate to the division of property can be embodied in the

decree. But there are other stipulations which are based upon the assumption that the zamindari is impartible, and that the junior members of the

family are entitled to allowances for their maintenance (Clauses 1 and 2 of the razinamah). Clause 8 lays down rules for future reigning zamindars

making adoptions in the event of having no issue, and also regulates the course of descent, while Clauses 10--12 give general rights as to grazing

and timber to all members of the family. Can it be said that stipulations such as these relate to the suit i.e., to a suit for partition? We think not, since

it is quite evident that no such reliefs could have been decreed by the Court had the parties proceeded to trial. It seems reasonable to hold that the

words ""so far as it relates to the suit"" in Section 375 must be restricted to relief which the Court could have given in the suit, and will not embrace

reliefs which could only have been given in a suit based upon a different cause of action.

In this view we are constrained to hold that the reliefs decreed by the Judge in Clauses 2, 3, 8, 9, 11, 12, 13, and 14 do not relate to the suit.

Clauses 8 and 14 contain provisions which are impossible of execution in any degree.

The next question is whether the decree should stand with reference to the remaining clauses. We are referred to the decision in Fajaleh Ali

Miah v. Kamaruddin Bhuya ILR 13 Cal. 170 in which apparently it was held that when a compromise embodied a new contract much wider in its

scope than the mere adjustment of the claim in suit, the Court could only record it and leave the parties to proceed with the case as they may

choose. We observe, however, that that case was not argued, and with all respect to the learned Judges it appears to us that this view fails to give

effect to the directions in Section 375 that ""the Court shall pass a decree in accordance therewith so far as it relates to the suit."" We observe that

Scott, J. in Ruttonsey Lalji v. Pooribai ILR 7 Bom. 304 followed this view and directed that a decree do issue in accordance with the agreement

so far as it related to the subject-matter and settlement of the suit, but excluding the arrangement made as to the matters outside the scope of the

suit. This case was approved and followed in Appasami v. Manikam ILR 9 Mad. 103

We have no doubt that an appeal lies since a decree u/s 375 is only final so far as it relates to so much of the subject-matter of the suit as is

dealt with by the compromise. We have held that the decree of the Judge has dealt with matters extraneous to the suit.

The appeal must be allowed and the decree modified by striking out the directions given in Clauses 2, 3, 8, 9, 11, 12, 13 and 14 of the decree.

As the appellant has been only partially successful, we direct that he be allowed half costs from respondents Nos. 1 and 2.

The seventh respondent will bear his own costs.