Yallappa S/O Shivappa Helakkanavar vs Avvakka @ Akkamma Claiming To Be

The defendant No.1 being aggrieved by the order dated 9.01.2019 passed on issue Nos.3 and additional issue in O.S.No.114/2017 by the Senior

Civil Judge and JMFC at Laxmeshwar has filed this revision petition.

The brief facts of the case are as follows:-Plaintiffs Respondent Nos.2 to 7 filed O.S.No.72/2014 on the file of the Senior Civil Judge and JMFC,

Laxmeshwar, against defendant No.1 for partition and separate possession of the suit schedule land bearing RS.No.58/2 measuring 10 acres 35

guntas, RS.No.24/8 measuring 22 guntas and RS.No.7/2 measuring 16 acres 5 guntas situated at Yalavatti village, Shirahatti taluk, Gadag District. The

said suit came to be decreed in view of the compromise between the parties. The share value of the petitioner has been paid. Respondent No.1

claiming to be the wife of the petitioner filed O.S.No.3/2017 in the Court of the Senior Civil Judge, Laxmeshwar, against the petitioner and respondent

No.2 to 7 for cancellation of decree dated 25/4/2014 passed in No.72/2014 is not binding on her. The petitioner and defendant Nos.2 to 7 filed the

written statement denying the claim of respondent No.1 and they have specifically stated that respondent No.1 has no right to file a suit and hence,

suit is not maintainable. The trial Court framed the issues. The trial Court treated issue No.3 and additional issue as preliminary issues heard on those

issues and passed the order holding that the suit is maintainable. Revision petitioner being aggrieved by the impugned order has filed this revision

petition.

Heard the learned counsel for the petitioner and learned counsel for respondent Nos.2 to 7.

A short question which arises for consideration before this Court is as to “whether the findings recorded by the trial Court on issue No.3 and

additional issue in O.S.No.114/2017 is sustainable in law?

The learned counsel for the petitioner â€"defendant No.1 vehemently submitted that the suit filed by respondent No.1-plaintiff is not maintainable in

view of the provisions of Order XXIII Rule 3A of CPC and also bar under Section 314 of Mulla’s Hindu Law operates against her and as such

the suit is not at all maintainable. Learned counsel further submitted that the trial Court has made so many observations on the merits of the suit which

are unwarranted, while deciding the preliminary issues.

Learned counsel has relied on the judgment in the case of Rajanna Vs. S.R.Venkateswamy and others reported in (2014) 15 SCC 471 and also on

the provision of Section 314 of Mulla’s Hindu Law.

Per contra, the learned counsel for respondent No.1â€"plaintiff submitted that the bar under Order XXIII Rule 3A of CPC operates only against the

parties to the compromise and not against the non party. The learned counsel firther submitted that bar under Section 314 of Mulla’s Hindu Law is

only for demanding partition and filing of suit for partition and separate possession by the wife during the life of her husband and that in the present

suit, wife has not sought for any share in the suit properties by effecting partition.

On the basis of the pleading of the parties, the trial Court framed the issues and additional issue and it was also directed that issue No.3 and

additional issue were ordered to be heard and disposed of as preliminary issues. Issue No.3 and additional issue reads as follows:-

“3. Whether the defendant No.2 to 6 prove that, suit of the plaintiff is hit by Order XXIII Rule 3A of CPC?

ADDITIONAL ISSUE

Whether the defendant No.1 proves that suit of the plaintiff is hit by Section 314 of Mulla’s Hindu law?â€​

The trial Court after hearing both the parties, recorded the finding that the suit is maintainable and that the bar under Order XXIII Rule 3A of CPC

and or bar under Section 314 of Mulla’s Hindu Law does not come in the way of the plaintiff’s suit.

The plaintiff-Avvakka @ Akkamma filed the said suit bearing O.S.No.114/2017 seeking relief of declaration to declare that the compromise

decree passed in O.S.No.72/2014 dated 25/4/2016 is fraudulent and not binding on her. It is the case of the plaintiff that defendant No.1 is her

husband and their marriage was solemnized about 21 years back as per the customs prevailed in their community in the presence of the elders. They

have no issues through their wedlock. She has alleged that all the defendants ill-treated her physically and mentally and she was thrown out from the

house. She has further alleged that defendant No.2 is the wife of the brother of defendant No.1 and defendant Nos.3 to 7 are the sons and daughter.

She has alleged that without her knowledge, defendant No.2 to 7 attempted to create an adoption deed in the name of defendant No.2 in order to grab

the share of defendant No.1 in the suit properties. She has further stated that prior to filing of the suit, she had filed a suit bearing O.S.No.5/2014

against 1st defendant before the Civil Judge and JMFC, Laxmeshwar, and obtained a temporary injunction order from transferring the share of

defendant No.1 in the name of defendant No.7.

Thereafter with a view to deprive the right of the plaintiff defendant Nos.2 to 7 got filed O.S.No.72/2014 against defendant No.1 while her suit

was pending and said suit was filed stating that defendant No.1 has not married the plaintiff and prayed to declare them as owners and in possession

of entire properties. She has further alleged that defendant No.1 appeared in the said suit and compromise decree was passed within 10 days from the

date of filing of the suit stating that defendant No.1 has received Rs.3,00,000/-in lieu of the half share in the suit properties and he has relinquished his

right over the property in favour of the defendants and said decree was passed on 15/12/2015. She has further stated that she had filed

Crl.Misc.P.No.67/2014 against defendant No.1 claiming maintenance in which the Court has granted maintenance of Rs.5,000/-p.m. by order dated

7/12/2015. But, he has not paid maintenance till today. Therefore, she alleged that defendant Nos.1 to 7 colluding with each other have obtained the

compromise decree in O.S.No.72/14 only in order to cheat the plaintiff and deprive her right to recover the maintenance from the property of

defendant No.1. The defendants after appearing in the said suit filed written statement on the basis of which issue No.3 and additional issue stated

above were framed.

The first contention of the petitioner-defendant No.1 is that the suit filed by the plaintiff is hit by Order XXII Rule 3A of CPC and therefore, issue

No.3 ought to have been answered in the affirmative and the suit of plaintiff ought have been dismissed.

In this regard, learned counsel for the revision petitioner has relied on the judgment in the case of Rajanna Vs. S.R.Venkateswamy and others, the

Hon’ble Supreme Court of India in the said case has held in para No.11 as follows:-

“11. It is manifest from a plain reading of the above that in terms of the proviso to Order XXIII Rule 3 where one party alleges and the other

denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the Court before whom such

question is raised, shall decide the same. What is important is that in terms of Explanation to Order XXIII Rule 3, the agreement or compromise shall

not be deemed to be lawful within meaning of the said rule if the same is void or voidable under Contract Act, 1872. It follows that in every case

where the question arises whether or not there has been a lawful agreement or compromise in writing and signed by the parties, the question whether

the agreement or compromise is lawful has to be determined by the Court concerned. What is lawful will in turn depend upon whether the allegations

suggest any infirmity in the compromise and the decree that would make the same void or voidable under the Contract Act. More importantly, Order

XXIII Rule 3A clearly bars a suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful. This implies

that no sooner a question relating to lawfulness of the agreement or compromise is raised before the Court that passed the decree on the basis of any

such agreement or compromise, it is that Court and that Court alone who can examine and determine that question. The Court cannot direct the

parties to file a separate suit on the subject for no such suit will lie in view of the provisions of Order XXIII Rule 3A of CPC. That is precisely what

has happened in the case at hand. When the appellant filed OS No.5326 of 2005 to challenge validity of the compromise decree, the Court before

whom the suit came up rejected the plaint under Order VII Rule 11 CPC on the application made by the respondents holding that such a suit was

barred by the provisions of Order XXIII Rule 3A of the CPC. Having thus got the plaint rejected, the defendants (respondents herein) could hardly be

heard to argue that the plaintiff (appellant herein) ought to pursue his remedy against the compromise decree in pursuance of OS No.5326 of 2005 and

if the plaint in the suit has been rejected to pursue his remedy against such rejection before a higher Court.â€​

Further, in the said case, the Hon’ble Supreme Court has referred to para No.17 in the judgment in the case of Pushpadevi Bhagat Vs.

Rajinder Singh, reported in (2006) 5 SCC 566. It reads as follows:

“17. Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the

compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise

will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but

contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the

agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this

position as she filed an application for setting aside the consent decree on 21-8-2001 by alleging that there was no valid compromise in accordance

with law. Significantly, none of the other defendants challenged the consent decree.

For reasons best known to herself, the second defendant within a few days thereafter (that is on 27-8-2001) filed an appeal and chose not to pursue

the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having regard

to the express bar contained in Section 96(3) of the Code.

The Hon’ble Supreme Court has also referred para No.13 in the case of Banwari Lal Vs. Chando Devi, reported in (1993) 1 SCC 581 which

reads as follows:

“13. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order XXIII, or an appeal under S. 96(1) of the Code,

in which he can now question the validity of the compromise in view of Order 43 Rule 1-A of of the Code.

Therefore, principles stated in the above cases is to the effect that the party who challenge the compromise decree can file a petition under

Proviso to Order XXIII Rule 3A of CPC or appeal under Section 96(1) of CPC, in which he can now question the validity of the compromise.

In view of the Order XXIII rule 3-A of CPC it is held in the above cases that where one party alleges and denied by the other party that an

adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the

question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment or satisfaction of any suit by lawful agreement or any right

signed by the parties the Court before whom such question is listed for deciding the same as provided under Order 23 Rule 3-A of CPC.

Therefore, it is crystal clear that separate suit by the parties to the suit or the compromise decree is prohibited and barred by provisions of Order

23 Rule 3-A of CPC and therefore, bar under Order 23 Rule 3-A of CPC operates against all parties to the compromise decree and it does not

operate against third person who is not a party to the compromise decree. Therefore, in the present case, the contention of the defendants that suit of

the plaintiff is hit by Order 23 Rule 3-A of CPC has no merit for the reasons that admittedly the plaintiff is not party in O.S.No.72/2014 nor she is a

party to the compromise decree passed in the said suit on 15.12.2015. Therefore, the trial Court answering the issue No.3 in the negative holding that

suit of the plaintiff is not hit by the provision of Order 23 Rule 3-A of CPC does not call for interference by this Court.

The second contention urged on behalf of the revision petitioner is that the suit of the plaintiff is barred under Section 314 of Mulla’s Hindu

Law. Section 314 of Mulla’s Hindu Law reads as follows:

Wife.- A wife cannot herself demand a partition, but it a partition does takes place between her husband and his sons, she is entitled (except in

Southern India) to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband. A claim by the wife

during the life time of her husband in the share which he has as a coparcener in his coparcenary is premature.

The above Section is the out come of the pronouncements of the Courts as stated in the section itself. Therefore, even pronouncements are to the

effect that the wife cannot by herself seek a share. Where a suit is filed for partition she is entitled to receive a share equal to that of son and to hold

that share separately even from her husband. If partition takes place between her husband and others, she is entitled to receive a share equal to that

of son and to hold that share separately even from her husband. Further it is held that a claim by the wife during life time of the husband in the share

which he as a coparcener in his coparcenary is premature. In the present case there is no contention by the defendant No.1 that the property in

question is a coparcener property and he is a coparcener in respect of the said property and therefore, a claim if any made by the wife for share in the

suit property is premature.

Admittedly, in the present suit the plaintiff has not sought for partition and separate possession of her share in the property of her husband. On the

other hand her suit is for declaration that compromise decree passed in O.S.No.72/2014 on 25.04.2014 among the defendant Nos. 1,2 and 7 is illegal,

fraudulent and not binding on her.

The learned counsel for the revision petitioner submitted that by filing the said suit virtually the wife is claiming right or share in the property of

defendant No.1 and therefore, it is barred by Section 314 of Mulla’s Hindu Law. The facts in the case goes to show that the plaintiff herein had

filed suit against defendant No.1 for declaration that she is his wife and for other reliefs which has been decreed and it is also admitted that the appeal

filed by the defendant No.1 was dismissed and now the matter is pending before the High Court in Regular Second Appeal. On the other hand

defendant Nos.2 to 7 have no locus standi to deny the status of the plaintiff as wife of defendant No.1. However, in the compromise decree passed in

O.S.No.72/2014 it is stated by the defendant in that suit, namely defendant No.1 in the present suit has no wife or children and therefore, he has

relinquished his share in favour of the plaintiffs in the said suit, who are defendant Nos.2 to 7 in the present suit, by receiving the sum of Rs.3,00,000/-.

Therefore, the plaintiff herein is aggrieved by the compromise decree wherein it is stated that defendant No.1 herein has no wife or children. Under

such circumstances, the plaintiff herein cannot be prevented from filing the suit for declaration in respect of the said decree, on the ground that she

cannot file a suit against her husband in respect of the property, in view of bar under Section 314 of Mulla Hindu Law.

It is also pertinent to observe that the suit in which the compromise decree was passed was filed during the pendency of the suit, filed by the

plaintiff herein. It is also not disputed that the said suit was filed on 15.04.2014 and the compromise decree was passed on 25. 04.2014 within a period

of 10 days. When these are the facts, it cannot be held that the plaintiff herein is not aggrieved by the said compromise decree and she cannot

maintain the suit as is filed by her.

As rightly submitted by the revision petitioner some of the observations made by the trial Court in deciding the preliminary issues are unwarranted

and the observations made by the trial Court stating that defendant Nos. 1 to 7 have colluded with the each other and that defendant Nos. 1 to 7 are

jointly and severally liable to pay maintenance etc., to plaintiffs are unnecessary. The trial Court should not consider the same in deciding the suit.

Under these circumstances, this Court holds that the impugned order does not suffer from any illegality and is sustainable in law.

Trial Court has properly recorded findings on issue No.3 and additional issue in the suit. Therefore, point for consideration are answered

accordingly. The Civil Revision Petition being devoid of merits is liable to be dismissed. Accordingly, it is dismissed.

The observations made by the trial Court and also observation made by this Court in the body of the order shall not come in the way of the trial

Court for disposal of the suit on merits.