Rajeswaran and Others vs Sennammal and Others

Sadasivam, J.—Appellants are the Plaintiffs in Original Suit No. 80 of 1956, on the file of the Court of the Subordinate Judge, Erode. They are the sons of the second Defendant Achiammal, who was the daughter of one Chinnaswami Kandar, through his first wife Periammal. The first Defendant in the suit is one Chinnammal alias Sembayi Ammal, who vas the second wife of the said Chinnaswami Kandar, Chinnaswami Kandar died on 20th November 1929, leaving his two widows, Periammal and Chinnammal, and the daughter Achiammal as his heirs. Defendants 3 to 15 in the suit are the descendants of one Ponnuswami Kandar, the younger brother of the said Chinnaswami Kandar, Ponnuswamy Kandar died on 7th November 1932. The other Defendants in the suit are alienees of the various items of suit properties from Ponnuswami or his descendants, subsequent to the death of Chinnaswami. The Plaintiffs filed the suit as reversioners to the estate of their maternal grand-father Chinnaswami Kandar for a declaration that the partition deed exhibit B-3 entered into by their mother Achiammal for herself and as their guardian along with the first Defendant Chinnammal and the son of Ponnuswami Kandar on 25th August 1934, is not binding on their reversionary interest in the half share of the properties belonging to Chinnaswami Kandar latter the lifetime of Defendants 1 and 2. But during the pendency of the suit, they obtained a surrender deed exhibit A-10, 1st June 1956 from their mother, the second Defendant, who in her turn had earlier obtained a surrender deed exhibit A-9 from the first Defendant on 29th May 1956 in respect of the estate of Chinnaswami Kandar. The Appellants-Plaintiffs got the plaint amended on the basis of the surrender deeds and prayed for possession of the suit properties.

The learned Subordinate Judge who tried the suit has accepted the case of the contesting Defendants that Chinnaswami and Ponnuswami were not divided, that the partition deed exhibit B-3 dated 25th August 1931 entered into by the sons of Ponnuswami Kandar, the first Defendant Chinnammal and the second Defendant Achiammal, for herself and as guardian for the Plaintiffs, is a fair one binding on the Plaintiffs, that the suit is barred by limitation and that the deeds of surrender executed by Defendants 1 and 2 are not binding on the other Defendants and are inoperative and invalid and in the result dismissed the suit. Hence the Plaintiffs have come forward with the present appeal.

The first question for consideration in this appeal is whether there was a division in status between Chinnaswami Kandar and Ponnuswami Kandar, as contended by the Appellants, or whether Chinnaswami Kandar died as an undivided brother of Ponnuswami Kandar as contended by the contesting Defendants. There was a partition between Peria Achi, father of Chinnaswami Kandar and Ponnuswami Kandar, and his brothers in 1903, as spoken to by P.W. 1 Nallaswami Kandar, a brother''s son of said Peria Achi. It is clear from the evidence of D.W. 1 Saniappa Goundar, the seventh Defendant in the suit, that his father Ponnuswami Kandar and his senior paternal uncle Chinnaswami Kandar were living in one house, west of the railway line till 1921 and thereafter they were living separately and messed separately. Though Ponnuswami was the younger of the two brothers, he was managing the family properties. Chinnaswami who was a pious man was engaged in the performance of pooja in the family Achi Amman Temple and he used to go on pilgrimage to religious places. Chinnaswami Kandar had two wives, Periammal and Chinnammal, but had no male issues. Exhibits A-3 and A-8 we copied of notices sent by Chinnaswami Kandar through his advocate on 23rd September 1928 to Nallaswami Gounder and Ponnuswanii Kandar respectively claiming partition and his share in the joint family properties. Exhibits A-11 and A-12 are the postal acknowledgments for the receipt of the above said notices. The seventh Defendant as D.W.1 admits the receipt of the notice. Exhibit A-1 is the reply notice sent by Ponnuswanii Kandar through his Advocate an 29th September 1928 stating that there are family debts of about Rs. 6,500 and that he has no objection to effect a partition of the family properties and the said family debts. No actual partition of the family properties by metes and bounds was effected till Chinnaswami died on 20th November 1929.

The Plaintiffs have relied on the above notices sent by Chinnaswami Kandar in paragraph 6 of the plaint in support of their contention that there was a division in status between Chinnaswami and Ponnuswami and that Chinnaswami Kandar died as divided brother of Pormuswami Kandar. The plea of the seventh Defendant in his written statement is that he does not admit that Chinnaswami Kandar was responsible for sending the notices through a lawyer, that Chinnaswami was ill in 1928, that the near relations of the wives of Chinnaswami Kandar caused the said notices to be given without the consent or knowledge of Chinnaswami Kandar and that there was absolutely no intention to become divided on the part of Chinnaswami Kandar. But no attempt was made to substantiate this plea at the trial. D.W. 1 Samiappa Goundar, the seventh Defendant in the suit, who alone has been examined on the side of the contesting Defendants to speak to this aspect of the case, stated that Chinnaswami issued a notice to his father Ponnuswami and that his father sent a reply. He, however, stated that the wives of Chinnaswami induced him to send notices asking for partition. In his written statement, the 19th Defendant denied that there was exchange of notices between Chinnaswami Kandar and Ponnuswami Kandar. The Plaintiff examined P.W. 3, Venkatarama Iyer to prove that the notice exhibit A-4 was sent by Vakil Eajam Iyer, the deceased younger brother of P.W. 3. P.W. 4 Sembayi Animal alias Chinnammal, the first Defendant in the) suit, stated that her husband sent a notice to Ponnuswami asking for partition. She denied that it was sent at her instigation. Even assuming that Chinnaswami was persuaded by his wives to send notices in order to protect their interests, we fail to see how it could affect their validity. There can be no doubt that Chinnaswami wanted, to get divided from his brother and sent a lawyer''s notice.

The seventh Defendant stated in his evidence that Chinnaswami wrote a letter to his father Ponnuswami to take him from Coimbatore and so his father went to Coimbatore and brought him to the village and that his father Ponnuswami asked Chinnaswami about the notice and that Chinnaswami stated that it was issued on the compulsion of his whole. No such case has been put forward by the seventh Defendant in his written statement and no such suggestion was made to the first Defendant when she gave evidence as P.W. 4 in the trait. In fact, the first Defendant filed Original Petition No. 2 of 1934, on the file of the District Munsif''s Court, Erode, as pauper, for partition and separate possession of the half share of her husband Chinnaswami. By that time the other widow Periammal, the mother of the second Defendant, was dead. Exhibit B-18 is the suit register extract relating to Original Petition No. 2 of 1934, on the file of the District Munsif''s Court, Erode. The first Defendant Chinnammal alias Sembayi Ammal could have filed the suit for partition only if her husband Chinnaswami had died as a divided brother of Ponnuswami. It is during the pendency of Original Petition No. 2 of 1934 that the partition deed exhibit B-3 has come into existence. There is no reference to the prior exchange of notices in this partition deed exhibit B-3. Under the terms of the partition deed, the first Defendant was given a life estate in 1 acre 21-1/4 cents of wet land and a half share in the house and the remaining joint family properties were taken by the sons of Ponnuswami. The properties so allotted to the first Defendant should after her lifetime be taken by her step daughter, the second Defendant in the suit, and enjoyed by her during her lifetime and thereafter the Plaintiffs should take the propertied absolutely. Thus the devolution of the properties is the same as if Chinnaswami had died as a divided brother. It is significant to note that there is no recital in exhibit B-3 that the provision was made in favour of the first Defendant in lieu of her maintenance right to which alone she would be entitled in case her husband, had died as a coparcener with his brother.

The learned Subordinate Judge has found on issue 2 that Chinnaswami was not divided from his brother Ponnuswami and in arriving at this finding, he has made several misstatements of facts and law. He has commented on the fact that Chinnaswami has not effected a partition of the family properties during his lifetime in spite of sending a notice claiming partition to be effected within three days. He failed to see how the division in status caused by the sending of notice would be affected by failure to effect a partition by metes and bounds. He has stated that the plea of the Defendants is that Chinnaswami withdrew his claim for partition subsequent to the reply notice exhibit A-4. But we have already referred to the fact that there is no such plea in the written statement of any of the Defendants. Chinnaswami and Ponnuswami were living separately and had separate mess and this is admitted by the seventh Defendant, who was examined as D.W. 1 in the case. The evidence of the first Defendant is also to the effect that after her husband returned from Koduraudi, the brothers, namely, Chinnaswami and Ponnuswami, continued to live as they lived before her husband went to Coimbatore for treatment. This would only mean that they continued to live separately as before and not that Chinnaswami gave up the demand for partition made by him in his lawyer''s notice exhibit A-3. The finding of the learned Subordinate Judge that Chinnaswami gave up his demand for partition, even if true, cannot affect the division in status effected by the sending of the notice exhibit A-3.

It is clear from Mulla''s Hindu Law, thirteenth edition, Section 325 at page 373, that all that it necessary to constitute a partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty and that that intention to separate may be exercised in different ways, either explicit declaration or by conduct, and it may be expressed by serving a notice on the coparceners and that the severance of status takes place from the date when the communication was sent and not when it was received. It is stated in the same section that the notice may be withdrawn with the consent of the other coparceners. In Radhakrishna v. Satyanarayana ILR [1949] Mad. 229 it has been held that except in the case of an agreement constituting a re-union, it is not open to a member of a Hindu coparcenary governed by the Mitakshara law to revoke or withdraw an unambiguous intention to separate communicated to the other members, after such communication. In Puttarangamma and Others Vs. M.S. Ranganna and Others, the Supreme Court has approved the above decision and held that when once a communication of the intention to separate is made which has resulted in the severance of the joint family status, it is not thereafter open to the coparcener to nullify it effect so as to restore the family to its original joint status. It is, however, stated in that decision that it is of course possible for the members of the family by a subsequent agreement to reunite, but the mere withdrawal of the unilateral declaration of the intention to separate which already had resulted in the division in status cannot amount to an agreement to reunite. In Nabisha v. Arumuga ILR [1966] Mad. 416 the decision was given by one of us to the effect that after there has been an expression and communication of the intention to divide by one coparcener to the other coparceners with the consequent severance in status, any unilateral act of the person who had expressed his intention and communicated it to withdraw, cannot alter the effect of the division and convert the status of the other coparceners from a joint to a divided one and that the original position can be restored only by a reunion involving a consensus of all the coparceners.

Mr. V. Thiyagarajan, the learned Advocate for the contesting Respondents, relied on the decision in. Gangadharrao Gopalrao Vs. Ramchandra, where it has been held that an unequivocal demand for partition which has not been persisted in and has been withdrawn or abandoned with the consent of the other members of the family, cannot be treated as nevertheless effecting a separation. But this decision has been considered in the following passage at page 269 of the Bench decision in Radhakrishna v. Satyanarayana ILR [1949] Mad. 229.

The Bombay High Court in Gangadharrao Gopalrao Vs. Ramchandra, expressed the opinion that by an agreement the parties might continue to be joint as before. Nobody can quarrel with this, as from such an agreement it is possible to infer re-union so long as there were no minors, but the statement at page 147, column 2 to the effect that an unequivocal demand for partition should not only be communicated but also should be persisted in order to bring about a division in status, is not supported by any authority. Of course, if with the consent of the other members it was abandoned or withdrawn so as to constitute an agreement to reunite, that is a different matter altogether. We are, therefore, of opinion that, save in the case of reunion, it is not open to a member of a coparcenary governed by Mitakshar Law to revoke or, withdrawn an unambiguous intention to separate communicated to the other members, after such communication.

Thus the finding of the learned Subordinate Judge that Chinnaswami gave up his demand for partition cannot have the legal effect of restoring the status of Chinnaswami as an undivided brother of Ponnuswami. But it is clear from what we have already stated that there is really no justification for the finding that Chinnaswami gave up his demand for partition at any time prior to his death. The contesting Defendants have put forward varying versions to defeat the claim of the Plaintiffs. We find that there was a division in status between Chinnaswami and Ponnuswami by reason of the unequivocal intention on the part of Chinnaswami to get divided as expressed in his notice to Ponnuswami and others. We find that Chinnaswami died as a divided brother of Ponnuswami.

Originally the Plaintiffs filed the suit as reversioners to the estate of Chinnaswami for a declaration that the partition arrangement entered into by the Defendant was not valid car binding on the reversioners. It is an undisputed fact that at the time of the filing of the suit, the Plaintiffs were only presumptive Reversioners to the estate of their maternal grandfather. But, during the pendency of the suit, on 27th May 1956, the first Defendant executed the deed of surrender exhibit A-9 in favour of the Second Defendant and a few days later on 1st June 1956, the second Defendant executed the deed of surrender exhibit A-10 in favour of the Plaintiffs. Sri V. Thiyagarajan appearing for the contesting Defendants urged that exhibits A-9 and A-10 are only documents evidencing transfer of properties and not deeds of surrender, that even if they are construed as deeds of surrender, they are not bonafide, that Defendants 1 and 2 cannot be allowed to do indirectly what they cannot do directly and that, in any event, this Court can impose terms on the Plaintiffs by decreeing that the Plaintiffs can get right in the suit properties only after the lifetime of the widows. In our opinion, there is no substance in any of these contentions.

The documents exhibits A-9 and A-10 are describe as deeds of surrender. It is true that the said description is not conclusive on the question whether Defendants 1 and 2 effectively surrendered the limited estate to which the first Defendant became entitled on the death of her husband and the second Defendant became entitled by reason of the surrender made by her step-mother. The recitals in each of these documents leave no room to doubt that the first Defendant and the second Defendant effaced themselves completely and surrendered their interest in the estate of Chinnaswami. In fact, the deeds of surrender came into existence during the pendency of the suit and the Plaintiffs were allowed to amend the plaint and seek recovery of their half share in the suit properties after partition by metes and bounds. In their additional written statements, the contesting Defendants did not put forward any plea that the deeds of surrender exhibits A-9 and A-10 are only documents transferring immovable properties and are not really surrender deeds as contemplated under the Hindu law. Defendants 1 and 2 in executing exhibits A-9 and A-10 have complied with the necessary retirements of a valid surrender under the Hindu law.

It is true Defendants 1 and 2 have executed the deeds of surrender during the pendency of the suit in order to enable the Plaintiffs to get possession of their half share of the suit properties in spite of the fact that Defendants 1 and 2 were parties to the partition arrangements exhibit B-3. The contention of Sri V. Thiyagarajan is that it is not open to Defendants 1 and to question the partition arrangement evidenced by exhibit B-3 at this distance of time and that they cannot be allowed to do indirectly by the execution of exhibits A-9 and A-10 what they could not do directly. It is well settled that the motive of a widow or other limited owner in making a surrender is immaterial and therefore a surrender made by a widow, or a limited owner cannot be called in question on the ground of improper motive. It is generally in cases where a widow or a limited owner reserves some interest in the estate, a question is raised whether surrender is bona fide. Thus if a surrender is a device to divide the estate with the reversioner or other person, the surrender cannot be held to be bona fide as It offends the principle that surrender must be of a whole estate in favour of the nearest reversioner, if thee be only one, or of the whole body or reversioners, if there are more than one, at the time of surrender. The decision in Natvarlal Punjabhai and Another Vs. Dadubhai Manubhai and Others, clearly answers several of the contentions urged by Sri. V. Thiagarajan. It s clear from paragraph 7 of the judgment that the whole doctrine of surrender is based upon the analogy or legal fiction of the widow''s death, that the widow''s estate is an interposed limitation or obstruction which prevents or impedes the course o� succession in favour of the heirs of her husband and that it is open to the widow by a voluntary act of her own to remove this obstruction and efface herself from the husband''s estate altogether and if she does that, the consequence is the same as if she died a nature death and the next heirs of her husband then living step in at once under the ordinary law of inheritance. It is clearly pointed out in the decision that a surrender is not really an act of alienation of the widow of her rights in favour of reversioner, that the reversioner does not occupy the position of a grantee or transferee, and does not derive his title from her, that he derives his title from the last male holder as his successor in law and the rights of succession are opened out by the act of self effacement on the part of the widow which operates in the same manner as her physical death. It is further pointed out in the above decision that if the effect of surrender is to destroy the widow''s estate in the same way as if. she suffered physical or civil death, there is no conceivable reason why the reversioner should not, subject to any, question of fraud or collusion that might arise, be in a position to recover possession of the properties from an alienee from widow or from one who has obtained title by adverse possession against her, as none of them could acquire rights except against the widow herself. It follows from the above principles that the widow herself may be incapable of derogating from her own grant and disputing the alienation which the has herself made, but surrender is not an alienation and as the reversioner does not derive his title from her, there is no principle of law under which the acts of the widow could bind him. Thus where a valid surrender follows a prior alienation, the surrender itself is valid and the reversioner id entitled to impugn the alienation by the widow except one made for legal; necessity. It is true in several cases an alienee pays valuable and substantial consideration for the property old by a limited owner on the expectation of enjoying it at least during the lifetime of the limited owner, and this expectation is cut short by the surrender made by the limited owner. But as pointed out by the Supreme Court in the above decision a person who takes a transfer from a Hindu widow acts with his eyes open and he runs the risk losing the property either by the actual death of the widow, or civil death by surrender.

Sri V. Thiagarajan relied on the following passage at page 69 in the Supreme Court decision in Natvarlal Punjabhai and Another Vs. Dadubhai Manubhai and Others, in support of his contention that it is open to this Court to impose conditions on the Plaintiffs'' claim to recover possession of their half share in the suit properties.

Be that as it may, even assuming that the Court is not incompetent to impose conditions on the reversioner''s rights of recovering possession of the property during the widow''s lifetime on grounds of equity, justice and good conscience in proper cases, it is clear that in the case before us no equitable considerations at all arise.

The above passage cannot be relied on as authority for the legal position that it is open to this Court to impose conditions on the Plaintiffs to recover possession of their half share in the suit properties. A similar contention was urged on behalf of the Appellant in Kaliaperumal Padayachi and Others Vs. Kuppayee Ammal, but the appeal was dismissed and there is nothing in the decision to show that the contention based on the above passage was accepted. In fact the Bench decision in Bilige Laxminarayana Rao and Others Vs. A.P. Fernandes and Others, has referred to the third ground, which the Supreme Court had mentioned in its decision namely.

that the law of surrender being a Judge made law, the Courts in recognising the right of surrender by a Hindu widow, can and ought to impose conditions on the exercise of her power based on considerations of justice, equity and good conscience, and surrender being purely a voluntary act on the part of the widow, she could not be allowed by her own act to prejudice the interests which she had already created.

and observed that the Supreme Court expressed a definite opinion that the third ground was equally untenable and then proceeded to make the observation extracted above. It has been pointed out in Bilige Laxminarayana Rao and Others Vs. A.P. Fernandes and Others, that

Even assuming that the Court is not incompetent to impose conditions on the reversioners rights of recovering possession of the property during the widows life time on grounds of equity, justice and good conscience in proper cases, it is clear that on the case before us no equitable considerations at all arise.

The finding of the learned Subordinate Judge on the plea of limitation put forward by the contesting Respondents is obviously untenable. The Plaintiffs originally filed the suit as reversioners to the estate of their maternal grandfather for a declaration that the partition arrangement evidenced by exhibit B-3 is not valid and binding on them as presumptive reversioners. Such a suit could be brought at any time daring the life time of the prior limited owners. During the pendency of the suit, the limited owners executed the deeds of surrender exhibits A-9 and A-10, and the Appellants got their plaint amended in order to sue on the cause of action that accrued to them. It is clear from Section 197(7) at page 229 of Mulla''s Hindu Law, thirteenth edition, that since the surrenderee is entitled to recover immediate possession, his suit to recover any property belonging to the estate from an alienee is governed by Article 144 of the Limitation Act of 1908 which corresponds to Article 65 of the new Limitation Act of 1963, containing the same provisions as those contained in the old Act. The present suit was filed under the old Act. In Bilige Laxminarayana Rao and Others Vs. A.P. Fernandes and Others, it has been held that the starting point of limitation for suit by the reversioners to recover possessions of the alienated property from the alienee is the date of the surrender and not the death of the window, whether Article 141 of the Limitation Act of 1908 if surrender is regarded as civil death for the purpose of this article, or Article 144, applies, The mere fact that Chinnaswami did not claim partition by metes and bounds during his life time after he became divided in status by issuing the notice exhibit A-3 cannot affect him, or his successors-in interest, to sue for partition in the absence of a specific plea and proof of ouster, and the suit filed by the Appellants is clearly within time.

The main question for consideration in this appeal is whether the registered partition deed exhibit B-3, dated 25th August 1934 entered into by Defendants 1 and 2 can be upheld as a voluntary arrangement entered into by Defendants 1 and 2 with the members of the branch of Ponnuswami Kandar, bona fide, for the benefit of the estate, as a reasonable and prudent transaction. The circumstances under which exhibit B-3 came into existence appear from the evidence of the first Defendant Sembayi Ammal alias Chinnammal (P.W.1) on the side of the Appellants and that of the seventh Defendant Samiappa Goundar (D.W.1) the scribe D.W. 4 Palaniappa Kandar and the attestor D.W. 5 Balasubramania Goundar on the side of the contesting Defendants. There can be no doubt that the document exhibit B-3 was brought into existence during the pendency of Original Petition No. 2 of 1934, on the file of the District Munsif''s Court, Erode field by the first Defendant for partition and separate possession of her husband''s share in the family properties. It is true P.W. 4 Sembayi Ammal has stated wrongly that the partition deed exhibit B-3 was executed after the original petition was closed. It is clear from exhibit B-7 that Original Petition No. 2 of 1934 was dismissed as not pressed on 28th August 1934, that is four days after the partition deed. The evidence of P.W. 4 that Ponnuswami compelled her for a compromise by threat and so she agreed to take 1 acre 22 cents is incorrect. In fact, she started in her chief examination itself that Ponnuswami was dead at that time. But there is nothing to supply the statement of D.W. 1 Samiappa Goundar that exhibit B-3 wag field in Original Petition No. 2 of 1934, on the file of the District Munsif''s Court, Erode. In fact, there is no sea or other indication in exhibit B-3 to show that it was filed in Court in the said proceeding. The Plaintiff''s father was a B.A., L.T. and a teacher at Erode and he is an attestor to exhibit B-3. It is difficult to accept the evidence of the first Defendant that the Plaintiff''s father asked her not to accept the compromise. The evidence of the scribe D.W. 4 Palaniappa Kandar is that Vakil Venkatachala Goundar sent a draft of the partition deed and that he wrote exhibit B-3 according to the draft. But this is not corroborated by any evidence. No such draft has been produced. The evidence of the first Defendant IB that she did not meet her vakil before she executed exhibit B-3. The evidence of D.W. 1 and D.W. 6 is that the first Defendant agreed to compromise, because she was given more than the extent given to another widow. The first Defendant admitted in cross-examination that the widow Ammaiyakal was given 80 cents of land for her maintenance, though she wanted a larger share at the time of partition. Ammaiyakal was the widow of the elder brother of Chinnaswami and Ponnuswami, who admittedly died as an undivided coparcener. It is true the document exhibit B-3 has been attested by independent respectable witnesses. One Venkatachala Goundar was the Pannaikkarar of Kodumudi Panchayat and he is an attestor to the document. The evidence of the first Defendant is that the Kodumudi Pannaikar told her that a compromise should he effected and that she cannot go up to the High Court to litigate her rights. P.W. 1 Nallaswami Kandar is the paternal uncle of Chinnaswami and Ponnuswami and he got 17 acres of nanja and 1 1/2 acres of garden lands in the partition between his father and his brothers in 1903. His evidence is that the first Defendant had, no help from her relations in connection with the suit field by her, Original Petition No. 2 of 1934 on the file of the District Munsif''s Court, Erode, and so she was induced by the panchayatdars to agree to take 1 acre 20 cents, though she ought to have got half of 17 acres as her husband''s estate and that it was not a fair compromise. The first, Defendant was a pauper at that time and in fact she field the application to sue as pauper. Mr. V. Thyagarajan relied on the several circumstances referred to earlier to show that exhibit B-3 evidences a bona fide transaction. In fact, Sri A.V. Narayanaswami Iyer, appearing for the Appellants, did not contend that either the first Defendant, or the second Defendant acted fraudulently in entering into the partition evidence by exhibit B-3. But, as pointed by the Bench in Kaliammal v. Sundarammal ILR [1949] Mad. 171, 184 it is not sufficient to show that a compromise entered into by a limited owner is bona fide in the sense that it was not a dishonest compromise in order to bind the reversioner, and that it is necessary that a compromise entered into by a limited owner on behalf of the estate is reasonable and prudent and for the interests of the estate in order to bind the reversioner.

Sri V. Thyagarajan rightly relied on the decision in Ponnammal v. Srinivasarangam AIR 1956 S.C. 162 in support of big contention that the validity of a family arrangement of disputed rights depends on the facts existing at the time of the transaction and will not be affected by subsequent judicial determinations, showing the rights of parties to be different from what was supposed, or that one party had nothing to give up. He also relied on decision in Bankey Behari Lal Vs. Brij Behari Lal and Others where it has been held that even ?where an unequivocal wish to separate is once declared by a notice, a separation will not be effected in law, if it be found, as a fact that the intention was given up as the result of a subsequent agreement of all the parties including the member demanding a separation, by which the notice was expressly or impliedly withdrawn, and urged that the parties to exhibit B-3 proceeded en the then state of the law and through that, the notice in exhibit A-3 was withdrawn and that Chinnaswami died as an undivided brother of Ponnuswami. But it is clear from the above decision that the intention to Separate was given up as a result of an agreement by all the parties including the member demanding separation. Even assuming that according to the law as it then stood there was a doubt whether a mere notice like exhibit A-3 would have the effect of causing a severance in status after it is withdrawn it is obvious the parties to exhibit B-3 could not have proceeded on any such basis. The evidence of the first Defendant as P.W.44 is that she filed a suit against Ponnuswami for partition of her husband''s share as her husband Chinnaswami sent a notice to Ponnuswami to effect a partition. She could not have filed Original Petition No. 2 of 1934 for partition unless her husband was divided in status. In fact, it appears from exhibit B-18 that she has impleaded Ammaiyakal, the widow of her husband''s brother, as only a maintenance holder in the said litigation. It is not clear whether the Respondents in Original Petition, No. 2 of 1984 field any counter or even of they did so, whether they raised any plea, apart from the question of pauperism. Even in the present suit the contesting Defendants pleaded that Chinnaswami was not responsible for sending any notice and they did not put forward any plea that the notice sent by Chinnaswami was revoked or withdrawn. Even exhibit B-3 is styled as a partition deed. It is not stated in the document that the first Defendant was only entitled to maintenance. On the other hand, the provisions in the document in favour of the second Defendant and the Plaintiffs show that the parties were conscious of the fact that Chinnaswami died as a divided brother of Ponnuswami. In fact, there are no recitals in exhibit B-3 to indicate it was the case of the sons of Ponnuswami that their uncle Chinnaswami died as an undivided brother, or that the first Defendant was only entitled to maintenance rights.

In Second Appeal Nos. 1825 of 1945 and 429 of 1946, a Bench of this Court followed the decision in Kaliammal v. Sundarammal ILR [1949] Mad. 171 and made the following observations which are pertinent in this case.

When a Court is called upon to decide whether a compromise entered into by a window in a suit is binding on the reversioners, it is generally useful to enquire: what was the nature of the claim in the suit? What was the defence put forward? What prospect was there of proving the claim in the suit or overcoming the defences set up? And finally what was the nature of the arrangement eventually come to? Was it such that a provident and prudent person mindful of the interests of the reversioners also would have agreed to Ligammal and Chinnammal went to Court in 1882 on the footing that their husbands had divided from Kalianna Goundan. Substantially, the defence was a denial of the partition. The enquiry in the present litigation has established beyond doubt that there had been a partition. The defence of Kuppakkal to the suits was therefore false and she and in fact everybody connected with the suits of 1882 must have known that the defence was false. The benefits, therefore, under the compromise were secured by a party who had no belief in the honesty or validity of the claim. The present case therefore falls within the scope of the latter of the third rule given in Kaliammal v. Sundarammal ILR [1949] Mad. 171 quoted above.

Applying the same test to the transaction evidenced by exhibit B-3, assuming that the defence put forward by the sons of Ponnuswami was that Chinnaswami did not send any notice voluntarily claiming partition and there was no division in status between their father Ponnuswami and their uncle Chinnaswami, it was false to their knowledge and the case would fall under the latter part of the third rule given in Kaliammal v. Sundarammal ILR [1949] Mad. 171. The plea of the contesting Defendants that the claim of Chinnaswami for division was subsequently withdrawn is a belated claim which was not put forward in the written statement. It could not be assumed that such a claim was in the minds of the sons of Ponnuswami at the time of exhibit B-3 and that the claim of Chinnaswami for division was subsea bona fide impression that their uncle Chinnaswami could have unilaterally revoked the notice for partition and that he died as an undivided coparcener. On the other hand, it is more reasonable to assume that the sons of Ponnuswami denied the factum of Chinnaswami having sent a notice as they have put forward the same plea in the written statement in the present suit. Once there was a division in status between Chinnaswami and Ponnuswami, the heirs of Chinaaswami were entitled to a moiety in the family properties and the attempt made by the sons of Ponnuswami to deprive them of their legitimate share is obviously fraudulent.

Having regard to the parties to exhibit B-3, it is doubtful whether the first Defendant really represented the estate of Chinnaswami in entering Into the partition arrangement. It is well settled law that a compromise in the nature of a family settlement or arrangement entered into by a widow of a claim by the reversioner where it is prudent and reasonable is bidding on the estate and that if the compromise is fair, reasonable and prudent in the circumstances in which a widow is placed, the alienation which is involved in the compromise must bind the reversioners See paragraph 669 at page 794 Mayne''s Hindu Law and Usage, eleventh edition. But in exhibit B-3 the song of Ponnuswami have entered into a partition arrangement net only with the first Defendant, the widow of Chinnaswami, but also with the second Defendant Achaiammal, the daughter of Chinnaswami Kandar. Having regard to the Full Bench decision in Ramakottayya v. Viraraghavayya I.L.R(1928) Mad. 556 (F.B.) the transaction brought about by the partition arrangement evidenced by exhibit B-3 is binding on Defendants 1 and 2. But as pointed out in AIR 1940 181 (Privy Council) the guardian of the minor reversioners has no power to bind the reversioners by any agreement to refer to Arbitration any matter relating to reversioners'' interest, even if the guardian happens to be the widow representing her husband''s estate. On the principle of the said decision, the second Defendant cannot as guardian of the Plaintiff''s enter into the partition arrangement exhibit B-3 so as to bind the reversionary interest of the Plaintiffs.

There can be no doubt in this case that the partition is extremely unfair and it could hardly be considered to be a reasonable or prudent act of either the first or the second Defendant, so as to bind the Plaintiffs as a family arrangement. In the reply notice exhibit A-4, Ponnuswami Kandar has stated that he had no objection to his brother Chinnaswami having partition and separate possession of his half share on his undertaking the liability to discharge half the family debts amounting to Rs. 6,500. Sri A.V. Narayanaswami Iyer for the Appellants fairly stated that at this distance of time, it is not possible to expect the contesting Defendants to prove the said debt of Rs. 6,500 and that his clients are willing to take half the suit properties subject to the payment of Rs. 3,250 being the half share of the said family debts. It is clear from the evidence of P.W. 1 Nallaswami Kandar that the branch of Chinnaswami and Ponnuswami got 17 acres nanja lands and 1 1/2 acres of punja lands in the partition of 1903 and each branch had to pay a debt of Rs. 6,000, Exhibit A-5 is a registered copy of a deed of mortgage executed by Ponnuswami Kandar and his sons on 23rd June 1929, that is subsequent to the exchange of notices exhibit A-3 and A-4 and it is in respect of the half share of Ponnuswami and his sons in the joint family properties described therein. The total extent of lands covered by the mortgage is 17 acres 42 cents. Under exhibit B-23, dated 4th July 1933, the sons of Ponnuswami have sold 46 cents in 1 acre 68 cents comprised in S. No. 357-B for Rs. 1,500 and received Rs. 500 in cash and a mortgage for Rs. 1,000 for the balance. This document gives an indication as to the value of the land. On the same date, the sons of Ponnuswami have executed the sale deed exhibit B-2 conveying their half share in S. No. 384-B and S. No. 385-B comprising a total extent of 2 acres 75 cents for Rs. 6,500 to discharge a prior mortgage debt under exhibit B1, dated 31st June 1930. The said mortgage deed exhibit B-1 was executed to discharge the mortgage exhibit A-5, dated 23rd June 1929 already referred to by us and another mortgage exhibit B-9, dated 2nd July 1929, apart from each of Rs. 2,175 received under the document. But the recital in the document that part of the cash consideration was received for the marriage expenses of the second Defendant, who is described as the daughter of the undivided member of the family, is false. There is the evidence of P.W. 4 and P.W. 5 that D.W. 2 Appadurai did not spend for the marriage of the second Defendant as claimed by him. Exhibit B-24 is a sale deed, dated 23rd May 1934 executed by the sons of Ponnuswami Kandar in respect of their half share in S. No. 378-E for Rs. 400. The above items, which have been sold by the sons of Ponnuswami Kandar, have not been included in exhibit B-3. By virtue of the partition arrangement exhibit B-3 the first Defendant got a life interest in 1 acre 21 1/4 cents in S. No. 330-A and a half share in the house and the sons of Ponnuswami got 6 acres 23 1/4 cents of wet land, 3 acres 2-1/6 cents of dry lands 5 1/2 houses and the remaining half share of the house allotted to the first Defendant and four house-sites. It is true they undertook liability to discharge the C schedule debts amounting to Rs. 4,935. But there is no satisfactory evidence bout the truth of these debts. Even assuming that the debts mentioned in the C schedule to exhibit B-3 are true they could be discharged by alienating less, than 2 acres of wet land as 56 cents of land have been sold under exhibit B-23 for Rs. 1,500 in 1983. In fact the alienations exhibits B-2, B-23 and B-24 were made prior to exhibit B-3. It could hardly be contended that the first Defendant entered into exhibit B-3 as representing a reasonable or prudent transaction so as to bind the reversioners. For the foregoing reasons, we are unable to uphold that exhibit B-3 is a bona fide family settlement binding on the Plaintiffs.

The decree and judgment of the lower Court are incorrect and they are set aside. The appeal is allowed with costs of this Court alone against Defendants 3 to 15. There shall be a preliminary decree for partition and separate, possession of the Plaintiffs'' half share in the plaint A schedule properties. In effecting the said partition, the properties allotted to the Plaintiffs and Defendants 1 and 2 under exhibit B-3 would be allotted to the Plaintiffs. Further in effecting a division, the properties sold by the sons of Ponnuswami Kandar shall, as far as possible, be allotted to the alienees, but without in any way prejudicing the rights of the Plaintiff. The Plaintiffs shall pay the half share of the family debts of Rs. 6,500, namely, Rs. 3,250. as mentioned in exhibit A-4, and admitted by the learned Advocate for the Appellants. The contesting Defendants are however given liberty in the final decree proceedings to show that the family debts are really more than the said amount. But, in that event, they should account for the sale proceeds of family properties not included in the suit. The question of mesne profits is relegated to enquiry under Order XX, Rule 12 Code of Civil Procedure.