R IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 8TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 11912 OF 2018 (GM-CPC) BETWEEN:
SHRI K M MANJUNATH S/O SHRI B C MOGANNA, AGED 54 YEARS R/A NO.434, I FLOOR 12TH CROSS SADASHIVANAGAR BANGALORE-560080.
… PETITIONER (BY SRI. B M ARUN, ADVOCATE) AND:
1. SRI. K RAMALINGA @ RAMALINGAPPA S/O LATE L KARIYAPPA AGED ABOUT 54 YEARS, 2. SMT. SARSWATHAMMA W/O SHRI. K RAMALIGNA @ RAMALINGAPPA AGED 51 YEARS 3. SMT. R NETHRAVATHI D/O SHRI.K RAMALIGNA @ RAMALINGAPPA AGED 30 YEARS, 4. SMT. R PAVITHRA D/O SHRI. K RAMALIGNA @ RAMALINGAPPA AGED 28 YEARS, 5. SMT. R ANURADHA D/O SHRI. K RAMALIGNA @ RAMALINGAPPA AGED 26 YEARS, 6. SRI K LAKSHMANA S/O LATE L KARIYAPPA AGED 52 YEARS 7. SMT MANJAMMA W/O K LAKSHMANA AGED 49 YEARS, 8. SMT. L MEENAKSHAMMA D/O K LAKSHMANA AGED 27 YEARS 9. SHRI. L AVINASH S/O K LAKSHMANA AGED 26 YEARS, 10. SMT MUNIYAMMA W/O LATE KARIYAPPA, AGED ABOUT 71 YEARS, 11. SMT K ANITHA W/O SHRI LOKNATH D/O LATE KARIYAPPA AGED 48 YEARS, NO.141, 2ND CROSS J C NAGAR BASAVENSHWARANAGAR BANGALORE-560079 12. SHRI K HANUMANTHARAYAPPA S/O LATE L KARIYAPPA, AGED 44 YEARS, NOS.1 TO 9, 10 & 12 ARE R/A THALAGHATTAPURA KANAKAPURA ROAD UTTARAHALLI HOBLI BANGALORE SOUTH TALUK BANGALORE-62 13. SRI K VAJRAPPA S/O LATE L KARIYAPPA AGED 48 YEARS, 14. SRI SIDDAPPA S/O LATE LINGEGOWDA, AGED 76 YEARS, 15. SRI CHIKKAVAJRAPPA S/O LATE LINGEGOWDA AGED 74 YEARS, 16. SRI KRISHNAPPA S/O LATE LINGEGOWDA AGED 69 YEARS NO.13 TO 16 ARE R/A THALAGHATTAPURA KANAKAPURA ROAD UTTARAHALLI HOBLI BANGALORE SOUTH TALUK BANGALORE-62 17. SRI LAKSHMAN S/O CHIKKANNA, AGED 51 YEARS, # 548, 4TH MAIN MAHALAKSHMIPURAM BANGALORE-560086 18. PURAVANKARA PROJECTS LIMITED BRANCH OFFICE AT:
#130/1, USLOOR ROAD BANGALORE-560042 REPRESENTED BY ITS AUTHORISED SIGNATORY … RESPONDENTS (BY SRI. AJAY M D, ADVOCATE FOR R1 TO R5; SRI. KEMPEGOWDA, ADVOCATE FOR SRI. SURAN GOVINDA RAJ, ADVOCATE FOR R18; SRI. R S RAVI, ADVOCATE FOR SRI. V CHANDRAPPA, ADVOCATE FOR R10 & 12; R6, 14 & 15 SERVED;
V.C.O DATED 31.01.2019, R11 SERVED;
V.C.O DATED 16.01.2019, R7 TO 9 ,13, 16 & 17 ARE DEEMED TO BE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 05.01.2016 PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, IN O.S.NO.601/2012, THEREBY DISMISSING THE COMPRORMISE PETITION FILED BY PETITIONER AND RESPONDENTS 1 TO 9 AND 17 & 18, UNDER ORDER 23 RULE 3 OF CIVIL PROCEDURE CODE, VIDE ANNEXURE-A.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER Petitioner being the defendant No.19 in a suit for partition in O.S.No.601/2012 filed by the respondents/plaintiffs is knocking at the doors of the writ court laying a challenge to the order dated 05.01.2016, a copy whereof is at Annexure-A whereby, the learned I Addl. Senior Civil Judge, Bangalore Rural District, has rejected the compromise petition filed by the plaintiffs No.1 to 9. The respondents having entered appearance through their counsel, resisted the Writ Petition.
2. The learned counsel for the petitioner Sri.B.M.Arun sought for invalidation of the impugned order arguing that:
(a) the court below proceeds on a wrong legal premises that unless the shares of the compromising parties to the suit are defined, the same cannot be the subject matter of compromise, when law to the contrary is well settled;
(b) the court below gets confused with the multiplicity of suits that are pending adjudication as reflected in para 10 of the impugned order when compromise is confined to the interest of the undefined interest of plaintiff Nos.1 to 9 and defendant Nos.17 to 19;
(c) the inclusion of non-suit properties as well in the compromise is treated as an obstacle to settlement in terms thereof, although by a lip service, the court below observes at para 11 of its impugned order “…Of course, there is no prohibition to compromise the matter in respect of the properties which are not the subject matter of the suit…” and (d) the impugned order has been made in gross violation of the guidelines and the principles which a court has to follow in considering recording or rejection of the compromise and this has resulted into a manifest injustice and a great loss to the petitioner who has paid huge sums of money to the other parties to the compromise by crossed bank cheques and that the compromise is founded inter alia on a registered and duly stamped instrument, duly executed by the parties to the compromise.
So arguing, he sought for allowing of the Writ Petition.
3. Learned counsel Sri.R.S.Ravi appearing for the contesting respondent Nos.10 & 12 vehemently opposes the Writ Petition with the following contentions:
(a) the members of a Hindu coparcenery governed by Mitakshara cannot alienate their undivided interest/share in the coparcenery property and therefore, the compromise that is founded on such alienation, is impermissible vide decision of the Apex Court in the case of State Bank of India Vs. Chamundi Ram, AIR 1969 SC 1330, para 7;
(b) the content and intent of compromise petition encompass the undivided share/interest of respondents/defendants who are not parties thereto and therefore, the court below is justified in refusing to record such a compromise which is prejudicial to the interest of non-parties; and (c) the petitioner who is a buyer pendente lite, has no locus standi to maintain the Writ Petition against the order refusing to record compromise, that too, when it comprises not only suit property but also other properties;
So contending, he sought for the dismissal of Writ Petition.
4. Learned counsel Sri.Ajay M.B appearing for the plaintiff Nos.1 to 5 opposed the Writ Petition contending that plaintiff Nos.1 & 2 are uneducated agriculturists; the plaintiff Nos. 3 to 5 who being the graduate children, did not properly advise plaintiff Nos.1 & 2; these plaintiffs have received only a sum of Rs.7,00,000/- by bank cheques when the subject property now compromised is worth several lakhs; the plaintiff Nos.1 to 5 being ignorant, have signed the compromise petition and also the order sheet without knowing its consequences.
So contending, he too sought for the dismissal of Writ Petition.
5. The other counsel representing the respective respondents, did not make any submission either this way or that way; nor have they adopted the arguments and contentions of other Advocates, either.
6. I have heard the learned counsel for the petitioner and the learned counsel for the respondents. I have perused the Petition Papers and I have adverted to the decisions cited at the Bar.
7. Compromise Petition was filed on 7.7.2014; none of the parties to the Compromise Petition had objected to the recording of the same though the said petition having been filed on 7.7.2014, the order impugned is made as late as on 5.1.2016, and the suit thus having been adjourned about a dozen times, in the interregnum; nor have they disputed the authenticity of their signatures appearing on the order sheet of the day admitting the compromise.
8. In the affidavit dated 20.03.2019 filed in this writ petition by the 1st respondent i.e., the 1st plaintiff, for himself and on behalf of respondent Nos.2 to 5 ie., the plaintiff Nos.2 to 5, the receipt of Rs.7,00,000/- paid by account payee bank cheques and the execution/registration of the Confirmation & Ratification Deed dated 3.7.2014, a copy whereof is at Annexure-D is also admitted; this Deed mentions about payment of Rs.25,75,000/- that too by account payee bank cheques to the parties thereto including these plaintiffs; the affidavit however states that these plaintiffs oppose the Compromise Petition as the defendant Nos.17 & 18 i.e., respondent Nos.17 & 18 herein, have not acted upon the terms of the Compromise Petition “as negotiated by us”.
No where in the affidavit, any fraud, fabrication or the like is alleged either in respect of Confirmation Deed or in respect of Compromise Petition.
9. The learned counsel appearing for respondent Nos.1 to 5/Plaintiff Nos.1 to 5 submitted that the plaintiff Nos.1 & 2 are uneducated agriculturists, although they owned lands and that the Plaintiff No.3 being an Engineering graduate and Plaintiff Nos.4 & 5 being the graduates, had not properly guided their parents i.e., Plaintiff Nos.1 & 2 in the matter of Compromise Petition, appears to be an after-thought to defraud the writ petitioner, who admittedly is a vendee pendente lite; their contention now that, had the court below allowed the said Compromise Petition, they would have challenged the same by filing the Writ Petition, is fraudulent and unconscionable to say the least. The writ court cannot countenance such a stand without risking its reputation and purity of judicial process.
10. The first contention of learned counsel Sri.R.S.Ravi that the members of the Hindu coparcenery governed by Mitakshara, cannot alienate their undivided/undefined share/interest in the joint family property militates against firmly accepted opinio juris founded on judicial decisions of several High Courts; the same are reproduced below:
(a) In Mulla’s Hindu Law, 21st Edition, Paragraph 257 reads as under:
“257. Sale or mortgage of undivided interest in Bombay, Madras and Madhya Pradesh.-According to Mitakshara law as administered in Bombay and Madras states, a coparcener may sell, mortgage, or otherwise alienate for value, his undivided interest in coparcenary property without the consent of the other coparceners. Where the sale was for consideration, there could be no bar against a joint owner against selling his share and the sale could not be set at naught”.
(b) N.R.Raghavachariar in his treaties on Hindu Law, 6th Edition at paragraph 272 reads as under:
“It is now the settled law in the provinces of Madras, Bombay, Behar and the Central provinces that one of several coparceners in a Hindu undivided Mitakshara family may, without the assent of his coparceners sell, mortgage or otherwise alienate his share in the undivided family estate, movable or immovable for valuable consideration. But under the Mitakshara law, as administered in Bengal and Northwestern provinces, Oudh, the Punjab, Behar, Orissa and the United provinces, a coparcener cannot without the consent of his other coparceners mortgage or sell his undivided share on his own account and not for the benefit of the family, and where he does make such an alienation, the other coparceners are entitled to get back the property sold….”.
(c ) Mayne’s “Hindu Law and Usage” 16th Edition at para 403 states:
“… it has been the settled law in the state of Madras that one coparcener may dispose of undivided ancestral estate even by contract and conveyance to the extent of his own share and afortiori that such share may be sized and sold in execution for his separate debt…” Further at paragraph 405, it states: “… According to the law of Mitakshara, as administered in the states of Madras and Bombay and the central Provinces including (now Madhya Pradesh) and Jammu & Kashmir, a coparcener in an undivided family may sell, mortgage or otherwise alienate for value his undivided interest in coparcenery property without the consent of the other coparceners…”
The above opinions of the three Jurists are consistent with what a Division Bench of this Court in the case of S. Rajanna vs. S.M. Dhondusa, AIR 1970 Mysore 270, about half a century ago has held.
11. The contention of Mr.Ravi that the Plaintiff Nos.1 to 9 being the members of the coparcenery could not have alienated their undivided interest in the joint family property till after their shares are defined by partition, does not have support of law or usage. His reliance on the decision of the Apex Court in the case of State Bank of India Vs. Chamundi Ram, AIR 1969 SC 1330 in support of his contention is thoroughly misconceived. True it is, at para 7 of the decision, the Apex Court observed “…… that till partition, each member has got ownership extending over the entire property conjointly with the rest… as a result of such co-ownership, the possession and enjoyment of the properties is common… that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners….”
12. The above is the case that arise from the Punjab Province and it related to claims emanating from an Evacuee Property situate in Bhawalpur State now in Pakistan; all the standard commentators on Hindu Law like Mulla, Mayne and Raghavachariar are of the unanimous opinion that the law in Mitakshara school as administered in the Province of Punjab is different from that in old Madras and Bombay Provinces. In old Punjab Province, a coparcener is not entitled to alienate his undivided share in the joint property till after partition, whereas, that is not so in Madras Province. A decision, as Lord Halsbury said more than a century ago in QUINN vs. LEATHEM, 1901 AC 495, is an authority for the proposition that it articulates in the given fact matrix, and not for all that which logically follows from what is so articulated; the proposition now canvassed by Mr.Ravi on the basis of the Apex Court decision even logically also does not follow from what is laid down therein; courts often save themselves from being slipped away, by some application of mind, which the Bar did not bestow.
13. The second contention that the Compromise Petition is prejudicial to the interest of non-parties thereto inasmuch as it appears to comprise the share/interest of such non-parties, who happen to be other parties to the suit, is an unfounded apprehension which can be allayed by filing of an affidavit by the petitioner which he undertakes to, to the effect that the compromise is confined to the parties thereto and that in no circumstance others interest in the suit property even remotely is affected. The said affidavit shall be made a part of the order recording the Compromise. It is a settled law that the Compromise Petition should be read as a whole to ascertain its scope and ambit as to the property that it affects. It hardly needs to be mentioned that even otherwise also, this Compromise Petition shall not be construed as even remotely affecting the interest of parties in the suit property, who are not signatories thereto, as rightly contended by the petitioner.
14. The last contention that the petitioner being the intending buyer pendente lite vide subject agreement has no locus standi to challenge the impugned order, appears again to be too farfetched an argument. Admittedly, petitioner is a party eo nomine to the subject suit; the Compromise Petition is between the petitioner and other parties, and that those who are not parties to the said Compromise, their interest not even in the least having been affected, have no right to oppose either the Compromise Petition or the Writ Petition challenging the order that refuses to record the arrangement between the willing parties. The clarification made by this Court in the immediately preceding paragraph coupled with the affidavit to be filed ensures that the apple cart of non- parties to the compromise does not run the risk of being toppled.
15. The reasoning of the court below that there are several other suits in which the property now comprised in the Compromise Petition, is the subject matter therein and therefore, the parties thereto shall have complications if the Compromise is recorded, is thoroughly misconceived inasmuch as whatever interest in the property is sought to be created by the Compromise, is always subject to the outcome of all those suits/proceedings to the extent they affect the interest of non-parties to the compromise.
16. There is one last aspect of the matter which though not urged, is mentioned in the affidavit filed by 1st respondent to the effect that petitioner is not a party to the registered Confirmation and Ratification Deed dated 3.7.2014 and therefore, the Compromise Petition is unfounded, is very difficult to countenance; a negotiated compromise partakes the character of a contract and decree passed thereon is nothing but a contract with the seal of the court, superadded; admittedly the compromise is founded on the said Confirmation Deed which records payment of huge sums of money to the parties through the account payee cheques; unlike in English Law of Contract, this itself can be and is the consideration as defined u/s. 2(d) of Indian Contract Act, 1872. The Compromise Petition seeks to ratify the interest created in favour of Purvankara Projects Ltd, which is a party eo nomine to the Confirmation & Ratification Deed which is admitted in the very affidavit itself. The said instrument being a registered document admittedly bears not only the signatures of the parties but contains their photographs as well. It is nobody’s case that this Deed and the Compromise Petition founded on the said Deed are obtained by fraud or duplicity.
In the above circumstances, this Writ Petition succeeds; the impugned order is liable to be set at naught and accordingly, it is; the court below is directed to accept and record the compromise, after an affidavit sworn to by the petitioner on a Non-judicial stamp paper of one hundred rupees denomination is filed within four weeks, to the effect that the subject compromise is confined to the interest of signatories thereto only, and that the same shall not even remotely affect the right or interest of the non- signatories.
It is made clear that what is the effect of recording of such a compromise on the on-going suit from which the impugned order had emanated or on other suits has been left open for consideration by the Courts concerned after hearing all the stake holders.
No costs.
Sd/- JUDGE Snb/