Full Judgment Text
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PETITIONER:
K. VENKATA SESHIAH
Vs.
RESPONDENT:
KANDURU RAMASUBBAMMA (DEAD) BY LRS.
DATE OF JUDGMENT19/02/1991
BENCH:
MISRA, RANGNATH (CJ)
BENCH:
MISRA, RANGNATH (CJ)
KULDIP SINGH (J)
CITATION:
1991 SCR (1) 538 1991 SCC (3) 338
JT 1991 (1) 642 1991 SCALE (1)257
ACT:
Constitution of India, 1950-Article 136 read with Order
23, Rule 3, Code of Civil Procedure, 1908-Compromise
petition-Genuine and lawful-To be acted upon.
Transfer of Property Act, 1882-Section 54-Sale of
certain suit property pendente lite of one of the parties
and prior to compromise-Not valid.
HEADNOTE:
Respondent No. 1 adopted petitioner-appellant, who
married two wives and through the first wife he had a son,
the respondent No. 2 and through the second, another son,
the respondent No. 3. During the pendency of the special
leave petition the adoptive mother of appellant died.
Respondent 2 and 3 laid claim to the entire property of
respondent No. 1 exclusively under two different wills said
to be by the respondent No. 1 and each contended that the
other will was a forged one. On the death of the adoptive
mother, the appellant laid claim to her entire property as
heir. While each of the parties had taken such stand, in
the litigation a compromise was brought about on 21.8.1987
between the appellant and his two sons, the respondents 2
and 3 and the same was filed in this Court and in terms of
the compromise the appellant, to make payment of Rs. 1 lakh
to each of his two sons in lieu of relinquishment of their
interest.
When the matter was listed for recording the
compromise, the respondent No. 2 contended that as he had
not been paid Rs. 1 lakh as stipulated in the compromise, in
the meanwhile he had alienated about 81 acres of the suit
properties to the third parties. The alienees had been also
impleaded as parties under the orders of this Court.
Disposing of the petition, this Court,
HELD: 1. Once the Court was satisfied that there was a
compromise it was for the Court to record the same and no
option lay before the Court to act otherwise. [542A-B]
539
2. As the compromise petition in the instant case is
genuine nd lawful the same has to be acted upon. [542B]
3. It is directed that the compromise petition shall be
accepted and in terms thereof the suit shall be disposed of
and the terms of the compromise shall form part of the order
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to be drawn up in this Court for disposing of the special
leave petition. [542B-C]
4. With a view to settling all equities between the
parties, directed that the appellant to pay a sum of Rs.1
lakh more to respondent No. 2 within eight weeks. Rs. 77,124
being the amount paid by the alienees before the Sub-
Registrar in respect of the sale-deeds shall be deposited.
[542C-E]
5. The alienees have no right created under the alleged
sale-deeds. Their possession is without authority of law
and clarified that none of the sale-deeds is valid. [542F-H]
6. The alienees shall deliver vacant possession of the
property by 30th of April, 1991, and in the event of failure
to do so the Trial Court directed to deliver vacant
possession. [543A-B]
Bhoja Govinda Maikap & Anr. v. Janaki Dei & Ors., AIR
(1980) Orissa 108, approved.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Misc. Petition No.
15001 of 1989.
AND
I.A. No. 1 of 1989 in S.L.P. No. 12288 of 1984.
From the Judgment and Order dated 20.4.1984 of the
Andhra Pradesh High Court Appeal No. 472 of 1976.
K. Mahadeva Reddy, Ms. Manjul Gupta, T.V.S.N. Chari and
A. Subba Rao for the Petitioner.
K. Ram Kumar, S.A. Ahmed, Tanweer Abdul and Mohan
Pandey for the Respondents.
The following Order of the Court was delivered:
540
The special leave petition under Article 136 of the
Constitution is directed against the affirming judgment of
the Andhra Pradesh High Court in a suit for title and
injunction.
In view of the fact that a petition of compromise in
respect of the entire subject-matter of litigation has been
filed in this Court it is unnecessary to refer to the facts
leading to the litigation. We shall, therefore, confine the
discussion to matters pertinent to the compromise.
Subbamma adopted one K.V Seshiah. Seshiah married two
wives. Through the first wife he had a son born to him by
name Sudarshan Gupta and through the second another son by
name Anand Babu. In February, 1985, during the pendency of
the special leave petition the adoptive-mother died.
Sudarshan and Anand Babu led claim to the entire property of
Subbamma exclusively to each of them under two different
wills said to be by subbamma and each contended that the
other will was a forged one. With the death of the adoptive-
mother, Seshiah led claim to the entire property as heir.
While each of the parties had taken such stand in the
litigation a compromise was brought about on 21.8.1987
between the father and his two sons and the same was filed
in this Court. The terms of the compromise stipulated
payment of Rs. 1 lakh by the father to each of his two sons
in lieu of relinquishment of their interest. When the
matter was listed before the Court for recording of the
compromise, Sudarshan Gupta, second respondent herein,
maintained that he had not been paid Rs.1 lakh as stipulated
and he had no intention to accept the compromise. The
question as to recording of the compromise was taken up by
the Court and parties have been heard.
One of the stipulation in the compromise deed which has
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admittedly been signed by the father and his two sons
stipulates:
"The petitioner has given to the second and third
respondents (the two sons) an amount of Rs. 1 lakh
each and the second and third respondents have
received the same."
In the face of such a statement in the compromise deed
signed by the parties the second respondent had disputed the
fact of payment and has, in the meantime, alienated about 81
acres of property which constitutes the subject-matter of
dispute to third parties. The alienees
541
have now been brought on record unders order of this Court.
We have heard counsel for the original parties as also
the alienees. The alienations are for about a purported
consideration of Rs. 4 lakhs. The sale-deeds indicate that
a sum of Rs. 1 lakh had been received earlier and a net
amount of Rs.77,124 out of the consideration money under
these documents has been paid before the registering
authority. The alienees have admittedly been in possession
of the property from the date of the sales which is more
than three years’ old by now.
Admittedly, the transfers are pendente lite. In fact,
if the compromise is valid and binding the alienor-
respondent no. 2 had no interest in the property to part
with in view of the stipulation in the compromise that on
receipt of Rs. 1 lakh he relinquished his entire interest in
the property. The alienees have made an attempt to hold out
that there were agreements for sale prior to the compromise
for which there is no acceptable evidence. We think we have
to find that the alienees had no interest in the property
prior to the compromise and we must hold that the sale-deeds
are subsequent to 21.8.1987.
Mr Ram Kumar who appeared for the second respondent,
apart from maintaining that his client has not received the
sum of Rs.1 lakh has not been able to point out any
justification as to why the compromise should not be acted
upon and on the basis of it the litigation may not be
disposed of. The factum of compromise is not in dispute.
Respondent no. 2 and his counsel Mr. Ram Kumar have accepted
the fact that the parties have signed the compromise
petition which contain terms which they had accepted and all
parties have accepted the document of compromise to be
genuine.
Counsel for the alienees has taken the stand that the
said alienations are valid and the transferees have become
owners of the property and has even maintained that there
have been improvements of the property by the alienees. He
sought to rely on certain decisions which on being referred
to were found to be totally inapplicable to the facts of the
case. On the other hand, we find that a similar question
arose before the Orissa High Court in the case of Bhoja
Govinda Maikap & Anr. v. Janaki Dei & Ors., AIR (1980) Ori.
108 where the power of the Court under Order 23, rule 3 of
the Code of Civil Procedure in the face of an objection of
one of the parties to the compromise was considered. Relying
upon several authorities of different High Courts and one of
the Privy Council referred to in the decision, the High
542
Court held that once the Court was satisfied that there was
a compromise it was for the Court to record the same and no
option lay before the Court to act otherwise.
We are in accord with the principle indicated in the
said decision and are of the view that as the compromise
petition is genuine and lawful the same has to be acted
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upon. We direct that the compromise petition shall be
accepted and in terms thereof the suit shall be disposed of
and the terms of the compromise shall form part of the
order to be drawn up in this Court for disposing of the
special leave petition.
With a view to settling all equities between the
parties and with the consent of Seshiah who is present in
Court, and counsel for the sons and after hearing the
Advocate for the alienees, we make the following directions:
1. Seshaiah shall pay a sum of Rs. 1 lakh more to
Sudarshan Gupta within eight weeks from today.
This amount shall be deposited in the Registry of
this Court within the time indicated and Sudarshan
Gupta shall be free to withdraw the amount.
2. Rs 77,124 being the amount paid by the alienees
before the Sub-Registrar in respect of the sale-
deeds shall be deposited within the same period in
the Trial Court and the alienees of the different
sale-deeds would be entitled to withdraw the
amounts on the basis of the record made by the Sub-
Registrar on each of the sale-deeds.
3. The alienees have no right created under the
alleged sale-deeds. Their possession is without
authority of law. Ordinarily, they would have been
liable to account for mesne profits. In view of the
fact that there was the allegation of payment of
Rs. 1 lakh to Sudarshan Gupta which we have not
investigated and to meet the further allegation
that some improvements have been made to the
property which too we have not gone into, we direct
that the mesne profits shall be set off against the
same. Under orders of this Court security has been
furnished for mesne profits. In view of the
aforesaid direction, the security furnished in the
Trial Court shall stand discharged and the alienees
will have no liability to account for mesne
profits. We declare and clarify that none of the
sale-deeds is valid and none of the alienees has
any interest in the aforesaid property.
543
4. The alienees shall deliver vacant possession of
the property by 30th of April, 1991, to Seshiah and
in the event of failure to do so the Trial Court is
directed by our present order to deliver vacant
possession of the entire property in suit including
those which are covered by the sale-deeds in favour
of the alienees to Seshiah within one month
therefrom. If necessary, the Trial Court may
appoint a Commissioner and take police help for
executing this order and such cost shall ultimately
be borne by the defaulting alienees but may
initially be met by Seshiah.
There would be no order for costs.
V.P.R. Petition disposed of
544