NONREPORTABLE
IN THE SUPEME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 7141 OF 2008
DODDAMUNIYAPPA(DEAD) THROUGH LRS. ….Appellant(s)
VERSUS
MUNISWAMY ORS. ….Respondent(s)
JUDGMENT
Rastogi, J.
1. The present appeal arises out of the suit filed at the
instance of respondent nos. 1 to 6 and respondent no. 10 for
declaration that the compromise dated 25 th March, 1976 entered
into between the appellant(defendant no. 1) on one hand and
respondent nos. 7, 8 and 9(original defendant nos. 2, 3 4) in
Execution Appeal No. 2 of 1974 did not bind the rights of the
plaintiffs and for permanent injunction which was acceded to by
the High Court in Regular First Appeal No. 611 of 1999 vide
judgment and decree dated 31st March, 2005.
2. The facts in brief culled out and relevant for the present
Signature Not Verified
Digitally signed by
SATISH KUMAR YADAV
Date: 2019.07.01
16:29:25 IST
Reason:
purpose which manifest from the record that Shri Chikkanna
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(since deceased) was the propositus of the joint family. He had
three sons, namely, Pillappa, Venkataramanappa and
Muniyappa (respondent nos. 7, 8 and 9). Respondent nos. 1 to 4
and respondent no. 10 are the sons of Pillappa (defendant no. 2)
and respondent nos. 5 and 6 are the sons of Shri
Venkataramanappa (defendant no. 3).
3. The above named propositus of the joint family Chikkanna
purchased the suit schedule property from his sister Thayamma.
The genealogy of the family of the respondents (plaintiffs) is as
under:
Chikkanna
(Propositus)
Pillappa Venkataramanappa Muniyappa
(Def. 2) (Def. 3) (Def. 4)
Govindaraja Venkatesha
(Plff. 6) (Plff. 7)
Chikkanna Muniswamy Ramachandra Srinivasa Nagraja
(Plff. No.1) (Plff. 2) (Plff. 3) (Plff. 4) (Plff. 5)
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4. It could be seen from the genealogy that respondent nos. 1
to 6 and respondent no. 10 are the grandsons of propositus
Chikkanna(deceased). The appeal has been preferred by
appellant (defendant no. 1) who is a purchaser of the subject
property involved in the suit. Respondent nos. 7 to 9(defendant
nos. 2 to 4), sons of late Chikkanna had jointly sold the suit
property in favour of one Muthappa under a sale deed dated 2 nd
December, 1950. It was stipulated in the sale deed that in the
event of the sale of the suit property by the above named
Muthappa, the suit property shall be reconveyance in favour of
respondent nos. 7 to 9 (defendant nos. 2 to 4) at the price offered
by the purchaser and on failure of the respondent nos. 7 to 9
(defendant nos. 2 to 4), the above named Muthappa would be free
to sell the suit property to any other purchaser. The property
was later purchased under the sale deed dated 30 th September,
1954 by one Muniswamy @ Annaiyappa from whom the appellant
purchased the suit property under the registered sale deed dated
29th January, 1962.
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5. Respondent nos. 7 to 9(defendant nos. 2 to 4), sons of
Chikkanna filed a suit on 27 th June, 1964 bearing no. O.S. No.
297 of 1964 against the appellant(defendant no. 1) including
other defendants seeking decree of reconveyance of the property
in terms of the clause of reconveyance against the appellant and
directing the defendants to execute reconveyance deed in their
favour in respect of the suit property which came to be dismissed
by the trial Court.
6. Being aggrieved by the judgment and decree of the trial
Court, respondent nos. 7 to 9(defendant nos. 2 to 4) filed Regular
Appeal No. 128 of 1967 which was allowed vide judgment and
decree dated 27th August, 1969 that came to be challenged by the
appellant(defendant no. 1) in a Regular Second Appeal No. 69 of
1970 which came to be dismissed and thus the decree became
final.
7. The matter thereafter proceeded for execution of the decree
in Execution No. 121 of 1972 and in sequel to the Order passed
in the execution petition, the reconveyance deed was executed by
the Court in favour of respondent nos. 7 to 9(defendant nos. 2 to
4
4) and possession of the suit property was handed over to
respondent nos. 7 to 9(defendant nos. 2 to 4) by the Court under
delivery receipt dated 7th March, 1974(Exhibit P6).
8. The appellant (defendant no. 1) filed Execution Appeal No. 2
of 1974 before the Principal Civil Judge, Bangalore. In Execution
Appeal, respondent no. 9(defendant no. 4) with the knowledge of
respondent nos. 7 and 8(defendant nos. 2 and 3) entered into a
compromise dated 25th March, 1976(Exhibit P8) with the
appellant. The extract of the compromise (Exhibit P8) entered
between the parties is quoted hereunder:
“ IN THE COURT OF PRINCIPAL CIVIL JUDGE
BANGALORE DISRICT: BANGALORE
Ex. Appeal No. 2/1974
Appellant: Doddamuniappa
Vs
Respondents: Pillappa and others
Under Order 23 Rule 3 of the Code of Civil Procedure
read with Section 107 C.P.C., the appellant and
respondents submit that they have compromised the
matter as hereunder:
1. Item No. 1 of the suit schedule shall belong to the
respondents and is in their possession of enjoyment.
2. Out of item No. 2 of the suit schedule on extent of
land measuring thirtyfive feet East to West, the
measurement taken from the Eastern edge of Item no.
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2 and twentysix feet North South shall belong to the
appellant as absolute owner thereof and the
Respondents shall have no right whatsoever in the
same. The rest of item No. 2, of plaint schedule
property belongs to the respondents absolutely.
Parties have taken possession of their respective
portions as indicated above.
The appellant and Respondents pray that the appeal
may kindly be partly allowed in terms of the above
compromise. Parties bear their own costs.
sd/ sd/
P.P. Subarao Doddamuniappa
Advocate for Appellant Appellant
(in Kannada)
sd/ sd/
M.R. Janardhanam Muniappa
Advocate for Respondents Respondent
(in Kannada)
Bangalore
Dated: 25.03.1976
Execution submitted before me
sd/
K.S. Dalvi
Pri. Civil Judge,
Bangalore District,
Bangalore.”
9. The Execution Appeal in terms of the compromise was
decided and part premises in terms of the compromise was
handed over to the appellant, indisputedly, respondent nos. 1 to
6 and 10 (original plaintiffs) were neither parties to the said
compromise nor their consent was obtained. Having attained
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majority, respondent nos. 1 to 6 and respondent no. 10 jointly
filed a suit bearing O.S. No. 5575 of 1980 arraying the
appellant(defendant no. 1) and respondent nos. 7 to 9(defendant
nos. 2 to 4) for declaration that the said compromise decree was
not binding on them and for permanent injunction contending
inter alia that the said compromise had been entered into
without their knowledge and consent of the respondent nos. 1 to
6 and respondent no. 10(plaintiffs), and respondent nos. 7 to
9(defendant nos. 2 to 4) having no right whatsoever to enter into
compromise and the said compromise had no legal sanctity
which was entered into between them without their consent and
knowledge and it did not bind them and, therefore, they were
entitled for their right in the suit property being a joint family
property.
10. The trial Court dismissed the suit vide judgment dated 19 th
June, 1999 holding that the plaintiff failed to establish that it
was the joint family property in the hands of respondent nos. 7 to
9(defendant nos. 2 to 4) and held that they were the joint owners
of the suit property.
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11. The judgment and decree of the trial Court dated 19 th June,
1999 came to be challenged by respondent nos. 1 to 6 in Regular
First Appeal No. 611 of 1999 before the High Court. The High
Court vide judgment and decree dated 31st March, 2005 allowed
the appeal, decreed the suit and held that the subject property
was joint family property in the hands of respondent nos. 7 to
9(defendant nos. 2 to 4) and the compromise would not bind the
plaintiffs(sons of defendant nos. 2 and 3) which is a subject
matter of appeal at the instance of the appellant(defendant no. 1)
in the original proceedings.
12. Learned counsel for the appellant, Mr. P.R. Ramasesh,
submits that when three sons of Chikkanna jointly sold the
property to Muthappa for a sum of Rs. 1000/ it did not hold the
character of joint family property in the hands of the sons of
propositus Chikkanna and it could not have been treated as joint
family property and the plaintiffs (grand children of propositus
Chikkanna) were not even born in the year 1950 when the sale
was executed.
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13. Learned counsel further submits that when a part of the
subject property was agreed to be returned back under the terms
of the compromise by the original plaintiff (sons of late
Chikkanna) in the earlier proceedings, it has not acquired the
character of coparcenary property or joint family property under
the Hindu Law and mere on compromise, the property cannot get
any better character than the ordinary property in the hands of
cosharers.
14. According to the learned counsel, the compromise on which
the High Court later proceeded in treating to be a joint family
inherited property, the finding is factually incorrect and
manifestly erroneous and deserves to be interfered by this Court.
15. Learned counsel further submits that the trial Court, after
appraisal of the evidence on record, came to the conclusion that
the plaintiffs had failed to establish the subject property to be the
joint family property and the terms of compromise was binding
on the original plaintiffs, is the correct conclusion in law. At the
time of compromise, respondent nos. 7 to 9(defendant nos. 2 to
4) came into possession of the property and, therefore, the nature
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of the property had not become coparcenary property. In the
circumstances, the finding which has been recorded by the High
Court that the subsequent compromise does not bind the
plaintiffs is based on a misconception of the principle of law as
applicable to Joint Hindu Family.
16. Per contra, Mr. S.N. Bhat, learned counsel for the
respondents, while supporting the finding recorded by the High
Court submits that the factual matrix of the matter is not in
dispute. The subject property was initially sold on 2 nd December,
1950 containing the clause of reconveyance requiring the
purchaser to reconvey the property in the event of sale and the
clause of reconveyance enured to the benefit of the family. After
the suit being finally decreed and possession was restored on 7 th
March, 1974, pursuant thereto, the property reassumed its
original character of joint family property in the hands of
respondent nos. 7 to 9(defendants nos. 2 to 4).
17. Learned counsel further submits that the property inherited
from the father by his sons becomes joint family property in the
hands of the sons as held by this Court in Smt. Dipo Vs.
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Wassan Singh and Others 1983(3) SCC 376. There remain no
controversy on the issue that if the subject property stands
reassumed in its original character of joint family property on
restoration of possession in pursuance to the decree of the Court
dated 7th March, 1974, no compromise could have been arrived at
between the parties at the stage of execution appeal without the
consent of respondent nos. 1 to 6(plaintiffs) and such a
compromise would not bind the rights of the respondent nos. 1 to
6 herein and this has been rightly held by the High Court under
the impugned judgment.
18. Learned counsel further submits that mere filing of an
execution appeal in which the compromise was executed between
the parties on 25th March, 1976, would not take away the efficacy
of the reconveyance decree passed and the execution of decree
stood effected pursuant to which the possession was restored of
the subject property on 7th March, 1974 (Exhibit P8). The High
Court has rightly held that in terms of the clause of
reconveyance, the decree and the sale deed executed thereafter in
execution decree was fully effected and the plaintiffs (respondent
nos. 1 to 6) had a right, title and interest in the subject property
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which was defeated by the compromise to which respondent nos.
1 to 6 (plaintiffs) were not the parties. Thus, the said
compromise cannot bind their share of interest and submits that
in the given circumstances, the present appeal is without
substance and deserves to be dismissed.
19. We have heard learned counsel for the parties and with
their assistance perused the material available on record.
20. The indisputed facts which have come on record are that
the subject property was originally purchased by propositus of
the family, namely, Chikkanna. After the death of Chikkanna,
property devolved into his three sons (respondent nos. 7 to 9
defendant nos. 2 to 4) who jointly sold the property on 2 nd
December, 1950 and the sale deed contained the clause of
reconveyance requiring the purchase to reconvey the property in
the event of sale. After the appellant (defendant no. 1) purchased
the subject property on 29th January, 1962, civil suit was
instituted for reconveyance by the sons of propositus Chikkanna
in the first instance which was dismissed by the trial Court. On
an appeal being preferred by respondent nos. 7 to 9(defendants
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nos. 2 to 4), the First Appellate Court allowed the appeal vide
judgment and decree dated 27th August, 1969. The second
appeal being R.S.A. No. 69 of 1970 preferred by the present
appellant (defendant no. 1) before the High Court came to be
dismissed, thus, the decree became final. Respondent nos. 7 to
9(defendants nos. 2 to 4) put the decree to execution and a deed
of reconveyance was executed and possession of the subject
property was restored to respondent nos. 7 to 9(defendants nos.
2 to 4) on 7th March, 1974 and on execution of a decree, it
assumed the character of a joint family property in the hands of
respondent nos. 7 to 9(defendants nos. 2 to 4).
21. It is at the stage of Execution Appeal No. 2 of 1974 preferred
at the instance of the appellant (defendant no. 1), the
compromise was executed between the parties on 25 th March,
1976 and part of the possession of the subject property was
restored to the appellant(defendant no. 1).
22. After the restoration of possession of the subject property on
7th March, 1974, the title of the property reassumed its original
character of joint family property in the hands of respondent nos.
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7 to 9 (defendants nos. 2 to 4) and has created the right of
inheritance of respondent nos. 1 to 6 in the joint family property
and indisputedly, they were neither consulted nor made parties
to the said compromise.
23. It is well settled and held by this Court in Smt. Dipo Vs.
Wassan Singh and Others (supra) that the property inherited
from the father by his sons becomes joint family property in the
hands of the sons. The relevant portion is as under:
2. “………..Property inherited from paternal ancestors
is, of course, “ancestral property” as regards the male
issue of the propositus, but it is his absolute property
and not ancestral property as regards other relations.
In Mulla’s Principles of Hindu Law (15th Edn.), it is
stated at p. 289:
“. . . if A inherits property, whether
movable or immovable, from his father
or father’s father, or father’s father’s
father, it is ancestral property as
regards his male issue. If A has no son,
son’s son, or son’s son’s son in existence
at the time when he inherits the
property, he holds the property as
absolute owner thereof, and he can deal
with it as he pleases. . . .
***
A person inheriting property
from his three immediate paternal
ancestors holds it, and must hold it, in
coparcenary with his sons, sons’ sons
and sons’ sons’ sons, but as regards
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other relations he holds it, and is
entitled to hold it, as his absolute
property.”
Again at p. 291, it is stated:
“The share which a coparcener obtains
on partition of ancestral property is
ancestral property as regards his male
issue. They take an interest in it by
birth, whether they are in existence at
the time of partition or are born
subsequently. Such share, however, is
ancestral property only as regards his
male issue. As regards other relations, it
is separate property, and if the
coparcener dies without leaving male
issue, it passes to his heirs by
succession.”
24. Indisputedly, respondent nos. 1 to 6 (original plaintiffs) were
not parties to the compromise dated 25th March, 1976 and the
subject property at that time was joint family property and the
compromise entered into between the parties would not bind the
rights of respondent nos. 1 to 6(grandsons of propositus
Chikkanna).
25. It is an admitted fact on record that the property was
purchased by Chikkanna from his sister Thayamma and
respondent nos. 7 to 9(defendants nos. 2 to 4) have inherited the
property after death of propositus Chikkanna. Respondent nos.
1 to 6 are children of respondent nos. 7 and 8(defendants nos. 2
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and 3), it would be an ancestral property in their hands and
indisputedly respondent nos. 1 to 6 are neither parties to the
proceedings nor consented when the compromise decree was
executed in Execution Appeal No. 2 of 1974 (Exhibit P8) dated
7th March, 1974 and admittedly the same would not be binding
upon their share over the property.
26. It goes without saying that the compromise would bind the
share of respondent nos. 7 to 9(defendants nos. 2 to 4) as they
are party to the compromise which was entered into Execution
Appeal No. 2 of 1974 and has been rightly recorded by the High
Court under its impugned judgment. We find no error in a
finding of fact which calls for any further interference of this
Court.
27. We find substance on the submission of learned counsel for
the respondents that after the decree of the suit was put in
execution a deed reconveyancing the subject property to
respondent nos. 7 to 9 (defendants nos. 2 to 4) was executed and
were put in possession on 7th March, 1974, mere filing of an
Execution Appeal would not take away the efficacy of the
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reconveyance decree already passed and the execution stands
effected and the right, title and interest in the subject property
could not be defeated by the compromise to which respondent
nos. 1 to 6 (plaintiffs) were not parties and as such, the said
compromise would not bind the share of respondent nos. 1 to 6.
28. The submission of learned counsel for the appellant(s) that
respondent nos. 1 to 6 failed to establish the existence of the
property in the hands of any member in the joint family property
or give rise to any presumption that the property is coparcenary
property is misplaced for the reason that the factual matrix of
which a detailed reference has been made indicates that the
property in the hands of respondent nos. 7 to 9(defendants nos. 2
to 4) of a joint family and confers on the property the character of
coparcenary property in the hands of respondent nos. 1 to 6.
29. Consequently, in our considered view, the appeal is without
substance and accordingly dismissed. No costs.
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30. Pending applications, if any, also stand disposed of.
..…………………………J.
(A.M. KHANWILKAR)
.………………………….J.
(AJAY RASTOGI)
NEW DELHI
JULY 01, 2019
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