R. JANAKIAMMAL versus S.K. KUMARASAMY(DECEASED) THROUGH LEGAL REPRESENTATIVES AND OTHERS

Citation: [2021] 6 S.C.R. 333 · Decided: 30-06-2021 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Case Partly allowed

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Judgment (excerpt)

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R. JANAKIAMMAL
v.
S.K. KUMARASAMY(DECEASED) THROUGH
LEGAL REPRESENTATIVES AND OTHERS
(Civil Appeal  No. 1537 of 2016)
JUNE 30, 2021
[ASHOK BHUSHAN AND R. SUBHASH REDDY, JJ.]
Code of Civil Procedure, 1908: Or.XXIII r.3 – Compromise
decree – r.3 of Or. XXIII provides that where it is proved to the
satisfaction of the Court that a suit has been adjusted wholly or in
part by any lawful agreement or compromise, the Court shall order
such agreement or compromise to be recorded and pass a decree in
accordance therewith – r.3 uses the expression “lawful agreement
or compromise” – A conjoint reading of ss.10, 13 and 14 of Indian
Contract Act indicates that when consent is obtained by coercion,
undue influence, fraud, misrepresentation or mistake, such consent
is not free consent and the contract becomes voidable at the option
of the party whose consent was caused due to coercion, fraud or
misrepresentation – An agreement, which is void or voidable under
the Indian Contract Act, shall not be deemed to be lawful as is
provided by Explanation to r.3 of Or.XXIII – Contract Act, 1872.
Code of Civil Procedure, 1908: Or.XXIII r.3A – In the plaint,
plaintiff pleaded that compromise recorded on 06.08.1984 was not
lawful compromise having been obtained by fraud and
misrepresentation – Plaintiff’s case was that they were represented
by D1 that the compromise was entered only to save the family
property since the plaintiff has given personal guarantee to the
Bank for obtaining loan for business – Pleadings clearly made out
the case of the plaintiff that the consent which he gave for
compromise by signing the compromise deed was not free consent –
The compromise, thus, became voidable at the instance of the plaintiff
– Thus, bar under r.3A shall be attracted.
Consent decree: Challenge against – A party to a consent
decree based on a compromise to challenge the compromise decree
on the ground that the decree was not lawful, i.e., it was void or
voidable has to approach the same court, which recorded the
[2021] 6 S.C.R. 333
333
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SUPREME COURT REPORTS
[2021] 6 S.C.R.
compromise and a separate suit challenging the consent decree has
been held to be not maintainable.
Hindu law: Joint Hindu Family – Under Hindu Law, any
member of the joint family can separate himself from joint family –
The intention of the parties to terminate the status of joint family is
a relevant factor to determine the status of Hindu Undivided Family
– In the instant case, real intendment of three branches to partition
their properties was not that they did not want Hindu Undivided
Family to continue rather the said partition was with object to get
away from application of Land Ceiling Act, 1961 – Partition Deed
dated 07.11.1960 being a registered Partition Deed between three
branches, the same cannot be ignored – Properties admittedly were
divided in three branches by the said partition – However even
after 07.11.1960, the family continued as a Joint Family – There
was reunion between three brothers to revert to the status of Joint
Hindu Family, which is amply proved from the acts and conducts of
the parties subsequent to 07.11.1960 – The purchase of various
immovable properties in the names of the three branches clearly
indicated the intention that all the three branches were joint and
they were purchasing the properties in the name of all the three
branches – Plaintiff never admitted the agreement dated 08.03.1981
or alleged partition of 08.03.1981 – It is, thus, clear that parties
remained joint and properties standing in the names of three branches
remained joint till the consent decree was passed on 06.08.1984 –
Thus, in the year 1979 when residential property of Tatabad was
obtained in the name of defendant No.1, all three branches were
part of the joint Hindu family and the house property purchased in
the name of one member of joint Hindu family was for the benefit of
all – Both the Courts below although accepted the partition dated
18.03.1981 as pleaded by D-1 but erred in not considering the
consequence of such pleading – When partition of all immovable
and movable properties is claimed on 08.03.1981, the conclusion
is irresistible that the family was joined till then – Thus, the theory
set up by D-1 that all the three branches were separate after
07.11.1960 is denied/belied by claim of partition on 08.03.1981.
Partly allowing the appeals, the Court
HELD: 1.1 Order XXIII Rule 3 provides for compromise
of suit. In Rule 3 am

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