Holding

A separate suit to set aside a consent decree is barred under Order XXIII Rule 3A, and the Tatabad residential property must be partitioned equally among the three branches as it remains joint family property.

Summary

The case involved a joint Hindu family of three brothers who executed a partition deed on 07‑11‑1960 but continued to live and conduct business together, later executing a compromise decree on 06‑08‑1984 to settle disputes. The plaintiff challenged the decree, alleging fraud, misrepresentation and lack of free consent, and sought a declaration that the decree was void and a partition of a residential property at Tatabad. The Supreme Court examined Order XXIII Rule 3 and the newly added Rule 3A of the CPC, holding that an agreement void or voidable under the Indian Contract Act is not "lawful" and that Rule 3A bars a separate suit to set aside a consent decree, requiring the challenge to be made before the court that recorded the compromise. The Court also found that despite the 1960 partition deed, the parties had reunited and remained a joint Hindu family, making the Tatabad house a joint family asset. Consequently, the plaintiff was entitled to an equal one‑third share, and a preliminary decree of partition was ordered for that property. The appeals were partly allowed, confirming the bar under Rule 3A and granting partition of the Tatabad property.

Issues considered

The applicability of Order XXIII Rule 3A CPC to bar a suit challenging the validity of a compromise decree.
Whether the compromise decree of 06‑08‑1984 was based on a lawful agreement or was void/voidable under the Indian Contract Act.
Whether the family remained a joint Hindu family after the 07‑11‑1960 partition deed, affecting ownership of the Tatabad property.

Legislation cited

Code of Civil Procedure, 1908s. Order XXIII Rule 3, s. Order XXIII Rule 3A
Indian Contract Act, 1872s. 10, s. 13, s. 14, s. 15, s. 16, s. 17, s. 18, s. 19
Tamil Nadu Land Ceiling Act, 1961s. Section 5
Tamil Nadu Land Ceiling (Amendment) Act, 1972s. Section 5

Subjects

Compromise decreeOrder XXIII Rule 3Order XXIII Rule 3AVoidable contractFree consentHindu Undivided FamilyJoint family reunionPartition deedLand Ceiling ActCivil ProcedureConsent decree

Judgment

[2021] 6 S.C.R. 333 333

R. JANAKIAMMAL A
v.
S.K. KUMARASAMY(DECEASED) THROUGH
LEGAL REPRESENTATIVES AND OTHERS
(Civil Appeal No. 1537 of 2016) B
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 C
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, D
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 E
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
F
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 G
– 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 H
333
334 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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
B 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
C 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
D 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
E 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
F 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
G 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
H of suit. In Rule 3 amendments were made by Act No. 104 of 1976
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 335
LEGAL REPRESENTATIVES

by which a proviso and an explanation was added. By the same A
amendment Act No.104 of 1976, a new Rule, i.e., Rule 3A was
added providing that no suit shall lie to set aside a decree on the
ground that the compromise on which the decree is based was
not lawful.” [Paras 39, 40][355-E; 356-B-C]
1.2 Determination of disputes between persons and bodies B
is regulated by law. The legislative policy of all legislatures is to
provide a mechanism for determination of dispute so that dispute
may come to an end and peace in society be restored. Legislative
policy also aims for giving finality of the litigation, simultaneously
providing higher forum of appeal/revision to vend the grievances
of an aggrieved party. Rule 3A which has been added by above C
amendment provides that no suit shall lie to set aside a decree
on the ground that the compromise on which the decree is based
was not lawful. At the same time, by adding the proviso in Rule 3,
it is provided that when there is a dispute as to whether an
adjustment or satisfaction has been arrived at, the same shall be D
decided by the Court which recorded the compromise. Rule 3 of
Order XXIII provided 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. Rule 3 uses the expression “lawful E
agreement or compromise”. The explanation added by
amendment provided that an agreement or a compromise which
is void or voidable under the Indian Contract Act, 1872, shall not
be deemed to be lawful.” [Para 41][356-C-G]
1.3 Reading Rule 3 with Proviso and Explanation, it is clear F
that an agreement or compromise, which is void or voidable,
cannot be recorded by the Courts and even if it is recorded the
Court on challenge of such recording can decide the question.
The Explanation refers to Indian Contract Act. The Indian
Contract Act provides as to which contracts are void or voidable. G
Section 10 of the Indian Contract Act provides that all agreements
are contracts if they are made by the free consent of parties
competent to contract, for a lawful consideration and with a lawful
object, and are not hereby expressly declared to be void. A

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336 SUPREME COURT REPORTS [2021] 6 S.C.R.

A consent when it is caused due to coercion, undue influence, fraud,
misrepresentation or mistake is not free consent and such
agreement shall not be contract if free consent is wanting. A
conjoint reading of Sections 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
B
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 Rule 3 of Order XXIII. [Paras 42, 43,
C 44][356-G-H; 357-A, D; 358-A-B]
1.4 It is clear from the plaint that plaintiff pleaded that
compromise recorded on 06.08.1984 was not lawful compromise
having been obtained by fraud and misrepresentation. The
plaintiff’s case was that they were represented by D1 that the
D compromise is being entered only to save the family property
since the plaintiff has given personal guarantee to the Punjab
National Bank for obtaining loan for Vasudeva Mills. Pleadings
clearly make out the case of the plaintiff that the consent which
he gave for compromise by signing the compromise was not free
consent. The compromise, thus, become voidable at the instance
E of the plaintiff. Rule 3A bars the suit to set aside the decree on
the ground that compromise on which decree was passed was
not lawful. The word “lawful” has been used in Rule 3 and in the
Explanation of Rule 3 states that “an agreement or compromise
which is void or voidable under the Indian Contract Act,1872
F shall not be deemed to be lawful……………….;” Thus, the bar
under Rule 3A shall be attracted if compromise on the basis of
which decree was passed was void or voidable. [Paras 47, 48,
49][359-A-E]
Banwari Lal v. Chando Devi (Smt.) though LRs. and
G Anr. (1993) 1 SCC 581 : [1992] 3 Suppl. SCR 524 ;
Pushpa Devi Bhagat (Dead) Through LR. Sadhna Rai
(Smt.) v. Rajinder Singh and Ors. (2006) 5 SCC 566
: [2006] 3 Suppl. SCR 370 ; R. Rajanna v. S.R.
Venkataswamy and Ors. (2014) 15 SCC 471 : [2014]

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R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 337
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14 SCR 535; Triloki Nath Singh v. Anirudh Singh A
(Dead) through Legal Representatives and Ors. (2020)
6 SCC 629 – relied on.
1.5 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 B
same court, which recorded the compromise and a separate suit
challenging the consent decree has been held to be not
maintainable. In Suit No.1101 of 1987, the plaintiff prayed for a
declaration declaring that the decree passed in O.S. No. 37 of
1984 is sham and nominal, ultravires, collusive, unsustainable
invalid, unenforceable and not binding on the plaintiffs. On the C
basis of grounds which have been taken by the plaintiff in Suit
No.1101 of 1987, the only remedy available to the plaintiff was to
approach the court in the same case and satisfy the court that
compromise was not lawful. There was no error in the judgment
of trial court and High Court holding that Suit No.1101 of 1987 D
was barred under Order XXIII Rule 3A. The compromise decree
dated 06.08.1984, thus, could not have been questioned in Suit
No. 1101 of 1987. [Paras 55 and 56][364-C-H]]
2.1 The case of the appellant is that the partition deed dated
07.11.1960 was entered between three brothers to save the E
properties from land ceiling laws. The relevant date under the
Land Ceiling Act was 07.04.1960 on which date the extent of
properties in hands of a person has to be determined and since
three brothers, who consisted members of joint family on the
relevant date had more than the land which was permitted to a
person, a partition was entered to save the properties from land F
ceiling laws. This argument was rejected by the trial court holding
that it has not been proved that land ceiling laws in any manner
affected the extent of land in the hands of three brothers.
[Para 74][369-H; 370-A-B]
2.2 Section 5 of the Land Ceiling Act provide for ceiling G
area. According to sub-section (1)(a) of Section 5, the ceiling area
in the case of every person and in the case of every family
consisting of not more than five members was 30 standard acres.
Figure of 30 standard acres was subsequently reduced to 15
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338 SUPREME COURT REPORTS [2021] 6 S.C.R.

A standard acres by Tamil Nadu Act No. 37 of 1972. Section 5(1)(b)
further provided that ceiling area in the case of every family
consisting of more than five members shall be 30 standard acres
together with an additional 5 standard acres for every member of
the family in excess of five. In event, the ceiling area is determined
treating the Hindu Undivided Family, joint family consisting of
B
three brothers, the ceiling area shall be 30 standard acres by
which 5 acres additional for every member of the family in excess
of five. The land which was possessed by the three brothers in
the year 1960 was more than 86.52 acres, which extent was
received by the three brothers in 1953 partition. Thereafter three
C brothers have acquired further land. In case, three brothers before
07.04.1960 partition their joint family, then each person will be
entitled to 30 acres. Thus, partition of the properties among three
brothers was clearly beneficial to the properties possessed by
the three brothers. The view of the trial court that it is not proved
that any benefit under the Ceiling of Land Act could have been
D
obtained by three brothers is clearly untenable. The view
expressed by the trial court was not after examining the
provisions of Act, 1961. Further the statement in the partition
that three brothers have already divided the immovable
properties on 01.04.1960 clearly was with intent to get away from
E Act, 1961 since the relevant date under the Ceiling Act was
07.04.1960. [Para 75][370-D-H]
2.3 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
F the status of Hindu Undivided Family. It is clear that 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 Ceiling Act, 1961. The intention of the parties when
they partitioned their properties in the year 1960 is a relevant
G fact. [Para 76][371-A-B]
2.4 However, the 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

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LEGAL REPRESENTATIVES

branches by the said partition. The question is as to whether A
after 07.11.1960, the family continued as a Joint Family or the
status of joint family came to an end on 07.11.1960. The case of
the appellant which was also pressed by the High Court was that
even if partition dated 07.11.1960 is accepted; the parties lived
in a joint family and continued their joint family status. The
B
contention advanced by the appellant was that 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 concept of reunion in Hindu
Law is well known. Hindu Joint Family even if partitioned can
revert back and reunite to continue the status of joint family. C
[Paras 77 and 78][371-C-E]
Mulla on Hindu Law, 22nd Edition – referred to.
Mukku Venkataramayya v. Mukku Tatayya and Ors.
AIR 1943 Mad. 538; M/s. Paramanand L. Bajaj,
Bangalore v. The Commissioner of Income Tax, D
Karnataka, II, Bangalore, (1981) SCC Online
Karnataka 131 J; Bhagwan Dayal v. Reoti Devi AIR
1962 SC 287: [1962] 3 SCR 440; Anil Kumar Mitra
and Ors. v. Ganendra Nath Mitra and Ors. (1997) 9
SCC 725 [1996] 9 Suppl. SCR 338; Palani Ammal v. E
Muthuvenkatacharla Moniagar and Ors. AIR 1925 PC 49
– referred to
3.1 The ancestral house of the parties was at Helmet,
Sedapalayam, Village Karumathampaty where three brothers
alongwith their father used to live. DW2 in her statement has F
also stated that after her marriage, she lived at ancestral house
at Sedapalayam. Further the three brothers in the year 1963
purchased the house site at Hemlet Somanur and constructed a
new house where three brothers with their families shifted and
lived at Somanur which became the new home of the Joint Family
consisting of three brothers. The new house was constructed G
after purchasing the land in the year 1963 and the families of the
three brothers started living at about in 1964, which clearly
indicate that intention of all the brothers was to live jointly and

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340 SUPREME COURT REPORTS [2021] 6 S.C.R.

A continue as Joint Hindu Family. After partition dated 07.11.1960,
three branches have purchased several immovable properties
together. [Para 85][379-D-F]
3.2 The three branches continued joint business by
establishing firms and companies which was carried by joint family
B in the partnership or by private company. It was only the members
of the family, who were shareholders and directors. The purchase
of various immovable properties in the names of the three
branches clearly indicate the intention that all the three branches
are joint and they are purchasing the properties in the name of
all the three branches. After the death of Rangasamy in the year
C 1967, it was defendant No.1, who took the reins of the family
being the eldest. The plaintiff and defendant No.10, sons of
Ranagasamy were very young at the time when their father died
and thereafter they were under the guidance and control of D-1
and the materials on the record indicate that it was D-1 under
D whose guidance, all businesses were carried out. Even the Suit
No.37 of 1984 which was filed for partition of properties was at
the instance of defendant No.1, which pleadings have been made
by the plaintiff of that suit when he filed written statement in Suit
No. 1101 of 1987. The plaintiff of Suit No.37 of 1984, D-6 in his
written statement in Suit No. 1101 of 1987 has clearly stated that
E he filed the Suit No.37 of 1984 at the instance of defendant No.1,
which fact has also been noted in paragraph 9 of the trial court’s
judgment. [Para 86][380-C-F]
3.3 In suit No.1101 of 1987, it was only D-1, who filed the
written statement and appeared in the witness box. D-4 neither
F filed written statement nor came to the witness box. It was D-1
who was pleading that joint family came to the an end after partition
dated 07.11.1960. D-1 in his written statement and in his oral
statement before the court has come up with the case that there
was partition of the properties on 08.03.1981 and an agreement
G was entered between the three branches and compromise decree
dated 06.08.1984 was passed to implement the agreement which
was entered in the year 1981. [Para 87][380-G-H; 381-A]
3.4 The agreement dated 08.03.1981 was denied by the
plaintiff. The plaintiff’s case was that at no point of time, there
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R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 341
LEGAL REPRESENTATIVES

was any agreement entered between parties in the year 1981 to A
divide the properties standing in the names of three branches.
The agreement dated 08.03.1981 was not filed by D-1 in the
evidence. The agreement was not filed nor exhibited by the
defendant, D-1. In the written statement which was filed by D-1
in O.S. No.37 of 1984, no plea was taken regarding agreement
B
dated 08.03.1981. It was for the first time in the written statement
filed by D-1 in suit No.1101 of 1987 that mention of agreement
dated 08.03.1981 was made. Neither any agreement dated
08.03.1981 was filed or proved nor there is any other evidence
on record to prove the division of properties between three
branches in the year 1981. [Paras 91, 92][382-G-H; 383-A-B] C
3.5 It is the case of the defendant No.1 that the compromise
decree dated 06.08.1984 is nothing but implementation of
agreement dated 08.03.1981. It is, thus, clear that the case of D-
1 is that there was partition of all properties standing in the names
of three branches and allocated to different branches on D
08.03.1981, which has been subsequently implemented by
consent decree dated 06.08.1984. As per the case of defendant,
the Vasudeva Textiles Mills was given to the branch of
Rangasamy, property at Coonoor was taken by D1 and properties
at Somnur by D-4. [Para 93][383-B-C]
E
3.6 When the D-1 comes with the case that there was
partition on 08.03.1981 of all immovable properties standing in
the names of three branches, which was implemented on
06.08.1984, the conclusion is irresistible that family was joint and
had the three branches were not part of joint Hindu family, there
was no occasion for attempting any partition on 08.03.1981 as F
claimed by D-1. The fact that defendant No.1 is coming with the
case that there was partition on 18.03.1981 itself proves that three
branches were joint till then as per case of D-1 himself. [Para
94][383-D-E]
3.7 Plaintiff never admitted the agreement dated 08.03.1981 G
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
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342 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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
B
partition of all immovable and movable properties is claimed on
08.03.1981, the conclusion is irresistible that the family was joined
till then. 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.[Paras 95, 96, 97][383-E-H]
C 3.8 Both the trial court and High Court have given much
emphasis on the fact that three branches were filing separate
Income-Tax Returns and Wealth Tax Returns after 1967. An
individual member of joint Hindu Family can very well file his
separate Returns both under the Income Tax Act as well as Wealth
D Tax Act and filing of such Returns was not conclusive of status of
the family. The plaintiff ’s case throughout was that family
continued to be joint after 07.11.1960 and D-1 who alone had
filed the written statement and appeared in the witness box having
come with the case of partition on 08.03.1981 which he claims to
be implemented on 06.08.1984 by Compromise Decree, it is
E proved that family was joint at least till then, i.e., 08.03.1981
or 06.08.1984. Thus, in the year 1979, when the Tatabad
residential property was acquired, the three branches were joint.
[Para 98][384-A-C]
3.12 The Tatabad residential property was for the benefit
F of all the three branches which is further proved from the fact
that the consideration for the said amount was not paid by DW-1
from his separate account or in cash. The amount was drawn from
the private limited company Swamy and Swamy Plantation Private
Limited in which all the three branches were shareholders and
G Directors. The Swamy and Swamy Plantation Company had not
purchased the residential property at Tatabad for the company.
The Swamy and Swamy plantation private company is not the owner
of the residential property and the residential property at Tatabad
is a joint family property for the benefit of all the three branches.
[Para 99][384-C-E]
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5. All three branches have equal share in the Tatabad A
residential property, i.e., Item No.X of Schedule ‘B’ of plaint in
Original Suit No.1101 of 1987. This residential property being
not a part of O.S.No.37 of 1984, there is no bar in seeking partition
of the said property by the plaintiff. Accordingly, plaintiff/defendant
No.7, defendant No.1 and defendant No.4 are entitled to 1/3 rd
B
share jointly in the aforesaid Item No.X of Schedule ‘B’ of the
suit property. [Para 100][384-E-G]
Case Law Reference
[1992] 3 Suppl. SCR 524 relied on Para 49
[2006] 3 Suppl. SCR 370 relied on Para 51 C

[2014] 14 SCR 535 relied on Para 52
(2020) 6 SCC 629 relied on Para 54
AIR 1925 PC 49 referred to Para 79
D
[1962] 3 SCR 440 referred to Para 83
[1996] 9 Suppl. SCR 338 referred to Para 84
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1537
of 2016
From the Judgment and Order dated 23.11.2011 of the High Court E
of Judicature of Madras in A.S. No.281 of 2000.
With
Civil appeal no. 1538 of 2016
V. Giri, Sr. Adv., Gaurav Agrawal, S. Ravi Shankar, Vikas Mehta, F
Varun Singh, Ms. Ankita Gupta, Advs. for the Appellant.
Kapil Sibal, S. Nagamuthu,V. Giri, Sr. Advs., Ms. Shobha
Ramamoorthy, Arunabh Chowdhury, Ankur Chawla, Ms. Pallavi Langar,
Arun Mohan, Nizam Pasha, R. K. Mohit Gupta, Karthik, V. P.
Sengottuvel, S. Ravi Shankar, Ms. Yamunah Nachiar, K. R. Nishanth, G
Akshay Kumar A.,Vikas Mehta, Varun Singh, Ms. Ankita Gupta,
Mrs. Prabha Swami, K.V. Mohan, Rahul Pratap, Advs. for the
Respondents.

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344 SUPREME COURT REPORTS [2021] 6 S.C.R.

A The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
These two appeals have been filed challenging the Division Bench
judgment dated 23.11.2011 of Madras High Court dismissing the A.S.
No.281 of 2000 and A.S. No.332 of 1999 filed by the appellants
B respectively. The parties shall be referred to as described in O.S.No.1101
of 1987 (S.R. Somasundaram vs. S.K. Kumarasamy). The appellant, R.
Janakiammal in C.A.No.1537 of 2016 was defendant No.7 in O.S.No.1101
of 1987 whereas S.R. Somasundaram, appellant in C.A.No.1538 of 2016
was the plaintiff in O.S.No.1101 of 1987. Janakiammal is the mother of
C Somasundaram. Relevant facts and events necessary to decide these
two appeals are:
2. The parties came from Pattanam, Coimbatore District, Tamil
Nadu. We may notice the Genealogical Tree of the family which is to
the following effect:
D

E

F

G

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LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

3. The plaintiff, S.R. Somasundaram and his mother, Janakiammal A
who are the appellants in these two appeals belong to branch of
Rangasamy Gounder whereas other two branches are of S.K.
Kumarasamy,D-1 and S.K. Chinnasamy,D-4. Three brothers with their
father A.V. Kandasamy Gounder were residing as a joint family in
ancestral house at Sadapalayam Hemlet, Karumathampatti Village,
B
Palladam Taluka, District Coimbatore. Rangasamy and others received
a land measuring 86.72 acres by partition deed executed on 27.09.1953
between late A.V. Kandasamy Gounder and Ponnammal, junior wife of
Kandasamy Gounder, his first wife, Senniamalai, son of Kandasamy
Gounder from first wife, Rangasamy Gounder, S.K. Kumarasamy, S.K.
Chinnasamy, all sons of second wife of Kandasamy. C
4. These appeals are concerned with three branches, namely,
Rangasamy, Kumarasamy and Chinnasamy. In the year 1954-55, three
brothers purchased various properties and started rice mill business called
Laxmi Rice Mills and also started Swamy Textiles in 1976, a match
factory, a slate factory, saw mills, timber business and power loom out D
of joint family funds. On 07.11.1960 a partition deed was registered
between three brothers with respect to the properties allotted to them as
per registered partition deed dated 27.09.1953 along with the properties
purchased by three brothers in the ratio of 1/3rd each. Even after partition,
three brothers continued to live under the same roof and carried on
business as partners. In the year 1963 they purchased housing site by E
sale deed dated 16.10.1963 in Somanur Hemlet, Village Karumathampatti,
and constructed a house therein and all the three brothers started living
in Somanur house from the year 1964 and carried on their different joint
business. On 27.05.1967, Rangasamy Gounder died in a road accident
leaving behind his widow, Janakiammal, two sons, S.R. Somasundaram, F
S.R. Shanmugavelayutham and one daughter, S.Saraswathy. From 1968
to 1978 various properties were purchased in the name of three branches.
The family also purchased in the year 1972 Tea Estate known as High
Field Estate in the name of defendant Nos.1, 4, 10 and plaintiff. A Private
Limited Company known as Swamy and Swamy Plantations (P) Ltd.
was also promoted with family members being shareholders and G
Directors.
5. In the year 1975, 50 acres of lands were purchased in Vedapatti
village, in the name of defendant Nos.1, 4, 10 and plaintiff. In the year
1978 a palatial Bungalow was purchased in Tatabad, Coimbatore.
Defendant No.10, who was Captain in the Indian Army, came back to H
346 SUPREME COURT REPORTS [2021] 6 S.C.R.

A Coimbatore after leaving his job to look after the family business and
properties. From the year 1973, he started looking after the properties at
Coonoor. Somasundaram, the plaintiff started his studies at Coimbatore
and Chennai and after completing his studies came back to Coimbatore
in the year 1979.
B 6. In Coimbatore one Vasudeva Industries Ltd., which was in
liquidation since 1967 was taken on lease from official liquidator of
Madras High Court by one Shroff, who along with defendant No.4, S.K.
Chinnasamy formed a partnership firm to run Vasudeva Industries Ltd.
Defendant No.1, S.K. Kumarasamy was appointed as General Manager
to look after the affairs of Vasudeva Industries Limited. An application
C was filed in the year 1981 in Company Petition No.39 of 1956. Defendant
No.1, S.K. Kumarasamy filed an affidavit in support of Company
Application No.320 of 1981 praying that liquidation proceedings be closed.
On 30.04.1981, the High Court of Madras passed order directing
convening of a meeting of the creditors. In the meeting of creditors a
D draft scheme submitted was approved on 09.06.1981, Madras High Court
passed an order on 22.01.1982 allowed the application filed by defendant
No.1, permanently stayed the liquidation proceedings and permitted
running of Vasudeva Industries Ltd. by the Board of Directors. On
03.02.1982 a Resolution was passed to bring the mills under the control
of the Board of Directors, including the plaintiff, defendant Nos.1, 4 and
E 10. The name of Vasudeva Industries Ltd. was changed to Vasudeva
Textiles Mills. In the year 1983 Vasudeva Textiles Mills( hereinafter
referred to as “Mills”) obtained loan from Punjab National Bank in which
personal guarantee was also given by the plaintiff and defendant No.10,
who were Directors. The plaintiff and defendant No.10 were also in the
F year 1984 elected as Managing Directors. The Swamy & Swamy Co.
which was earlier running the Mill on lease was dissolved in the year
1984. The Mills although started running by the Board of Directors but
in the years 1983, 1984 and 1985 accumulated losses were more than
the profit of Mills.

G 7. On 19.01.1984, C. Senthil Kumaravel, defendant No.6 and son
of S.K. Chinnasami, defendant No.4 filed O.S. No.37 of 1984 praying,
inter alia, for partition and allotment of 1/6th share to him. In O.S.No.37
of 1984 Senthil Kumaravel, the plaintiff came with the case that the
plaintiff and defendant Nos.1, 3,4, 8,9 and 10 were members of joint
family. In O.S.No.37 of 1984, Janakiammal was impleaded as defendant
H No.8, Shanmugavelayutham as defendant No.9, Somasundaram as
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 347
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

defendant No.10 and Saraswathi as defendant No.11. In the plaint case, A
it was stated that even after registered partition deed dated 07.11.1960
between three branches, defendant Nos.1, 4 and the deceased K.
Rangasami continued to live jointly and did business jointly. All the three
branches lived jointly. In the plaint, it was further stated that from the
savings of the income and by mortgaging ancestral property, the capital
B
necessary for the business was found and the business was expanded
from time to time. It was further pleaded that plaintiff, Senthil Kumaravel
was entitled to 1/6th share. Defendant Nos.8 to 11, representing the
branch of deceased K. Rangasami, were entitled jointly 1/3rd share in
all suit properties. The plaintiff in suit had prayed following reliefs:
“a) to divide the immovable suit properties described in the C
schedules ‘B’, ‘D’ and ‘E’ and items 1 to 9 in Schedule ‘C’
hereunder into six equal shares by metes and bounds with
reference to good and bad soil and allot one such share to
him with separate possession;
b) to allot 1/6th share in the shares mentioned in item 10 and D
11 of Schedule ‘C’ and item 2 of Schedule ‘D’ described
hereunder;
c) directing the defendants to pay cost of the suit;”
8. The plaint Schedule ‘B’ included ancestral land in Palladam E
and Samalapuram villages with house at Sadapalayam Helmet. Schedule
‘C’ included various immovable properties and included residential
building, shares in M/s. Swamy and Swamy Plantations (P) Ltd. Coonoor,
and shares of M/s. Vasudeva Industries Ltd. were also mentioned as
item Nos. 10 and 11 of Scheduled ‘C’. In the above suit only defendant
Nos.1 to 3 of the suit, namely, S.K. Kumarasamy, Sundarambal, wife of F
S.K. Kumarasamy and minor Kandavadivel son of S.K. Kumarasamy
filed their written statements. In the written statement, it was pleaded
that no doubt some properties have been acquired jointly in the names of
the defendant Nos.1, 3, 4,9 and 10, but they must be deemed to be only
co-sharers in respect of those properties. It was pleaded that three G
branches were allotted shares in 1960 partition and plaint case that parties
continued to live jointly was denied.
9. In O.S.No.37 of 1984, an application under Order XXIII Rule
3 was filed on 06.08.1984 by the plaintiff containing signatures of plaintiff
and defendants. In the application under Order XXIII Rule 3 in Schedule
H
348 SUPREME COURT REPORTS [2021] 6 S.C.R.

A ‘A’ to Schedule ‘J’, various items of properties were listed and allocated
to different members of the family. On the basis of application under
Order XXIII Rule 3, Sub-ordinate Judge, Coimbatore passed an order
dated 6.8.1984 and directed for preparation of decree on the basis of
compromise petition.
B 10. In the compromise decree although various agricultural
properties, house properties and shares were allotted to two other
branches, i.e., branches of S.K. Kumarasamy and S.K. Chinnasamy
but the branch of Rangasamy was allocated only shares in Vasudeva
Industries which was under liquidation and taken under the orders of
Madras High Court dated 21.01.1982 to be run by the Board of Directors.
C
11. Minor children of defendant No.10 filed O.S.No. 827 of 1987
through their mother challenging the compromise decree dated
06.08.1984 on the ground that they were not parties thereto. On
03.08.1987 O.S. No.1101 of 1987 was filed by both the sons of
Rangasamy, i.e., S.R. Shanmugnavelayutham and S.R. Somasundaram.
D In O.S. No.1101 of 1987 defendant Nos.1,2 and 3 filed their written
statements where it was pleaded that there was agreement on 08.03.1981
between the three branches where defendant No.1 was to pay Rs. 4
lacs to defendant No.4 and plaintiff was to pay Rs. 7 lacs to defendant
No.4 and since payment was not made to defendant No.4 suit was filed
E through his son. It was further pleaded that compromise dated 06.08.1984
was to give effect to earlier agreement dated 08.03.1981. In the O.S.
No.827 of 1987, an affidavit was filed by the mother of the minor stating
that they had entered into the compromise with defendant No.1 hence
seeking permission to withdraw the suit. On 10.02.1993, the O.S. No.827
of 1987 was withdrawn, on the same date Shanmugavelayuthem who
F was the first plaintiff in O.S.No.1101 of 1987 withdrew himself from the
suit and was transposed as defendant No.10 in the suit. The written
statement was filed by Janakiammal, defendant No.8 supporting the
plaintiff’s case and also praying for partition of her share. Senthil
Kumaravel, who was plaintiff in Suit No.37 of 1984, filed a written
G statement in O.S.No.1101 of 1987 where he stated that he filed Suit
No.37 of 1984 at the instance of S.K. Kumarasamy, defendant No.1
and decree dated 06.08.1984 was sham and nominal, and was not to be
given effect to. Additional written statements were filed by defendant
Nos.1 to 3. Defendant No.10 also filed written statement supporting the
case of defendant No.1. Reply was filed by plaintiff, Somasundaram to
H the written statements filed by defendant Nos. 1 to 3.
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 349
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

12. Five witnesses were examined on behalf of the plaintiff. A
Somasundaram, plaintiff appeared as PW.1. The plaintiff filed Exhs. A-
1 to A-55. On the side of defendants, four witnesses were examined.
Janakiammal appeared as DW.2 whereas S.K. Kumarasamy appeared
as DW.1. Exh.B-1 to B-104 were marked on behalf of the defendants.
Exh. X-I to X-27 have been marked through witnesses.
B
13. The trial court framed five issues and six additional issues.
One of the additional issues was that whether the suit is not maintainable
under Order XXIII Rule 3A of the CPC. The trial court vide its judgment
dated 30.09.1997 dismissed the suit. The trial court upheld the plea of
defendant Nos.1 to 3 that O.S.No.1101 of 1987 was barred by Order
XXIII Rule 3A CPC. The trial court also upheld the partition deed dated C
07.11.1960 and the agreement dated 08.03.1981. The trial court held
that after the year 1960 the entire family was not living as joint family
and all the three branches are co-owners as far as properties are
concerned and were running partnership businesses. Challenging the
judgment of the trial court dismissing the suit two appeals were filed in D
the High Court. A.S.No.332 of 1999 was filed by Somasundaram, the
plaintiff and A.S. No.281 of 2000 was filed by Janakiammal defendant
No.8.
14. The High Court has noticed the point for determination in the
appeal, i.e., whether O.S.No.1101 of 1987 is maintainable in the light of E
the provisions contained in Order XXIII Rule 3A of the CPC. The High
Court, however, observed that appeals could be disposed of according
to the finding to be recorded on the aforesaid point for consideration,
however, it has not formulated any other point for consideration though
extensive arguments have been made by the respective counsel. It is
useful to reproduce paragraphs 163 and 164 of the judgment of the High F
Court, which are to the following effect:
“163. The point for determination that arises for consideration
in the above appeals is as to whether the suit seeking to declare
the decree passed in O.S.No.37 of 1984 on the file of the Sub
Court, Coimbatore, is sham and nominal, ultra-vires, collusive, G
unsustainable, invalid, unenforceable and not binding on the plaintiff,
is maintainable in the light of the provisions contained in Order 23
Rule 3 of the CPC and Order 23 Rule 3-A of the CPC?
164. As the appeals could be disposed of on the basis of the finding
to be recorded on the aforesaid point for determination, we have not H
350 SUPREME COURT REPORTS [2021] 6 S.C.R.

A formulated any other point for determination, though extensive arguments
have been made by the respective counsel as to whether the partition
effected under Ex.B-26, dated 07.11.1960 between Rangaswamy (father
of the plaintiff), Kumaraswamy (D-1) and Chinnaswamy (D-4) was
acted upon or not; whether there was a joint family among the three
branches after 07.11.1960; whether the various businesses run under
B
different partnership firms are the joint family businesses.”
15. The High Court after considering the submissions of the
respective counsel came to the conclusion that compromise decree dated
06.08.1984 in Suit No.37 of 1984 was valid, the plaintiff failed to prove
that any fraud was played. The plaintiff, further, failed to prove that they
C gave any guarantee in the year 1984 for taking loan from Punjab National
Bank. Hence, basis of the suit that they signed the compromise deed on
the representation of defendant No.1 and that the plaintiff and defendant
having given personal guarantee for loan obtained for Vasudeva Industries
Ltd., to save family properties from claim of the Bank, the properties be
D kept only in the name of defendant No.1 and defendant No.4 but the
right of the plaintiff and defendants will be held intact.
16. The High Court held that it has not been proved that any
personal guarantee was given by the plaintiff, the very groundpleaded
by the plaintiff is knocked out. The High Court further held that suit was
E barred by Order XXIII Rule 3A CPC and only remedy available was to
question the compromise decree in the same suit. The High Court
dismissed both the appeals. Aggrieved by the judgment of the High Court,
these two appeals have been filed.
17. We have heard Shri V. Giri and Shri Gaurav Agrawal, learned
F senior counsel for the appellants. Shri Kapil Sibal, learned senior counsel
has appeared for contesting respondents. Shri S. Nagamuthu, learned
senior counsel has appeared for defendant No.11 and other defendants.
18. Shri V.Giri, learned senior counsel appearing for R. Janakiammal
submits that the compromise decree dated 06.08.1984 in Suit No.37 of
1984 is unfair, inequitable and fraudulent. Shri Giri submits that
G
Janakiammal who was defendant No.8 in Suit No.37 of 1984 was not
aware of the compromise application or its terms. Janakiammal is a
widow only knowing Tamil, she signed the English written papers which
was brought to her by DW-2, wife of D-1. She never engaged any
counsel. Shri P.R. Thirumalnesan, learned counsel, was never engaged
H by her. She never went into the Court nor appeared before the Court on
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 351
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

06.08.1984. The family possessed several hundreds acres of land, several A
houses and other numerous assets but in the compromise decree, she
was allotted 200 shares which were in the name of Smt. Kamalam,
DW-2 of a sick mill, i.e., Vasudev Mill.
19. The properties which she inherited from her late husband
Rangasamy and numerous properties which were purchased in her name B
after the death of her husband were all allocated to branches of D-1 and
D-4 without giving an inch of land to her. The shares were also allotted
to D-2 and D-5, the wives of D-1 and D-4, who have no pre existing
rights. Janakiammal and her son Somasundaram did not get any
immovable property in the compromise decree except shares of the
Vasudeva mills, a sick company. The consent decree clearly records C
that no Vakalatnama has been filed by D-8. When no Vakalatnama was
filed by D-8, she was not represented by a counsel and the Court was
misled to believe that Thirumalnesan, advocate represented D-8.
20. The learned counsel submits that the family of three brothers
lived jointly and continued to be joint family even after partition dated D
07.11.1960 and acquired several properties in the name of three branches.
The family possessed more than 260 acres of land at different places
with several houses but no immovable property was allocated to
Janakiammal or her sons.
21. O.S. No.37 of 1984 was filed on the behest of S.K.
E
Kumarasamy by C. Senthil Kumaravel, son of S.K.Chinnasamy. C.
Senthil Kumaravel in his written statement in Suit No.1101 of 1987 has
pleaded that Suit No. 37 of 1984 was filed by him at the behest of S.K.
Kumarasamy, D-1. C. Senthil Kumaravel further pleaded that decree in
O.S. No.37 of 1984 was sham and nominal. The 200 shares allotted to
Janakiammal as per compromise decree dated 06.08.1984 which were F
in the name of Smt. Kamalam were never transferred to Janakaiammal.
Janakiammal fully supported the plaint case of suit No.1101 of 1987.
22. The partition agreement dated 08.03.1981 as pleaded by D-1
was only an imaginary story. No such agreement was filed in the court
nor the same was pleaded in a written statement filed by D.1-3 in O.S.
G
No.37 of 1984. Despite the agreement dated 08.03.1981 not being
produced in the Court, the trial court in its judgment dated 30.09.1997
had erroneously accepted the factum of partition by agreement dated
08.03.1981 and accepted the case of defendant No.1 that compromise
decree dated 06.08.1984 was to give effect to the partition dated
08.03.1981. H
352 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 23. No partition was affected in the year 1981 and the family
remained as a joint family. In O.S. No.37 of 1984, the house property at
Tatabad which was in the name of D-1, was not included, which property
was purchased by joint family fund and the three branches had share in
house at Tatabad which was mentioned at item No.10 in Schedule C of
Suit No.1101 of 1987.
B
24. The pleading of defendant No.1 that under the agreement
dated 08.03.1981, the plaintiff was to pay Rs. Seven Lakhs to D-4 and
D-1 was to pay Rs. Four Lakhs to D-4 were all imaginary stories set up
by D-1. Neither any agreement took place on 08.03.1981 nor any amount
was to be paid by plaintiff to D-4. The house at Tatabad purchased in
C the year 1978 with the joint family fund was not included in O.S. No.37
of 1984, and in the house all members of the family had a share. The
amount of Rs.1,03,000/-, which was received by Janakiammal from the
Insurance Corporation after the death of her husband was given to
defendant No.1, which was utilised for business purposes. The High
D Court did not consider the case of Janakiammal as pleaded.
25. Shri Gaurav Agrawal, learned counsel appearing in Civil Appeal
No. 1538 of 2016 on behalf of Somasundaram submits that plaintiff was
deprived of his immovable properties including land and houses and was
given only worthless shares in the Compromise decree dated 06.08.1984.
E He submits that the suit No.1101 of 1987 was filed by the plaintiff to
declare the decree dated 06.08.1984 void, unenforceable and fraudulent.
26. It is submitted that the plaintiff was taken to the Court by D-
1 on 06.08.1984 and was asked to sign the compromise application on
the representation that since the plaintiff and D-10 had given personal
F guarantee for the loan taken for Vasudeva Textiles Mills from Punjab
National Bank, their name should not be any immovable property to
save the family property. The plaintiff was assured by D-1 that his right
in immovable property shall not be affected by the Compromise decree
as the decree dated 06.08.1984 shall not be made effective.

G 27. It is submitted that the allocation of the properties in the
compromise decree is unfair. A fraud was played on the plaintiff as well
as on the court in obtaining the compromise decree. It is submitted that
the Order XXIII Rule 3A shall not govern a case where a fraud is played
on the Court. Suit No. 37 of 1984 was filed on illusory cause of action,
bar under Order XXIII Rule 3A shall not apply. The High Court after
H having found that suit is barred under Order XXIII Rule 3A has not
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 353
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

entered into other issues. The house property of Tatabad which was A
purchased in 1978 was not included in Schedule of O.S.NO.37 of 1984
which property was included in Suit No.1101 of 1987, hence, suit for
share in house property at Tatabad was fully maintainable. The plaintiff
has completed his graduation in Textile Engineering. Vasudeva Industries
was not a family concern, which was under litigation and was not a
B
profit making venture. The consent decree dated 06.08.1984 was never
acted upon. The mill could not be revived and closed down in 1987. The
defendant No.1 continued to manage the affairs of the mill till 1989
when he resigned.
28. Shri Kapil Sibal refuting the submissions of the appellants
contends that partition dated 07.11.1960 between three branches was C
given effect to. Income Tax Returns were filed by three branches on
the basis of 1960 partition. There was an arrangement made in 1981
under which the D-1 was to take properties at Coonoor, D-4 was to take
properties at Somnur whereas plaintiff and defendant No.1 decided to
take Vasudeva Textiles Mills. The Suit No.37 of 1984 was filed by the D
son of D-4 at his instance.
29. Shri Sibal submits that the Suit No.37 of 1984 has been decided
on compromise where all the defendants have signed the compromise
application including Janakiammal as well as Somasundaram. The
Vakalatnama on behalf of defendant Nos.7 to 11 was filed by Advocate E
Thirumalnesan who represented defendants 8 to 11. It is submitted that
plaintiff and D-10 were all educated persons and having signed the
compromise application, it is not open to them to contend that they signed
the application under some misrepresentation or fraud.
30. The plaintiff and defendant No.10 wanted to take the mill in F
their share hence, the shares of the mill were allocated in the compromise
decree to Rangasamy Branch. Rangasamy Branch had 95% shares in
the Mill, i.e., the controlling share. The mill was valued at the rate of
Rs.32 Lakhs. There is no fraud in the compromise decree. The
Compromise decree dated 06.08.1984 was given effect to. There being
partition in the year 1960 there was neither any joint family property nor G
any joint family. It was pleaded by the plaintiff that his mother and sister
expressed a desire not to take any share. In 1989, the plaintiff had sold
the Vasudeva Mills.
31. Shri Sibal submits that none of the pleadings of the plaintiff
falls in the definition of fraud. No fraud was committed on the plaintiff. H
354 SUPREME COURT REPORTS [2021] 6 S.C.R.

A Under Order XXIII Rule 3A CPC, no separate suit could have been
filed to question the compromise decree.
32. Shri Sibal submits that the remedy open for the plaintiff was
to either file an application in suit No.37 of 1984 or file an appeal against
the Compromise decree. Filing of suit No.1101 of 1987 is nothing but
B litigative gambling by the plaintiff. Shri Sibal submits that the suit filed by
the plaintiff deserves to be dismissed with costs.
33. Shri Nagamuthu, learned senior counsel appearing for the
defendant No.11 has supported the judgment of the Courts below. He
submits that from 1989, selling of shares of the mill started. The defendant
C No.1 purchased the shares of the mill. The Compromise decree dated
06.08.1984 was acted upon. In 1994, the complete shares of the mill
were transferred. Shri Nagamuthu submits that the defendant No.11
and other defendants were transferee of the shares.
34. Shri Giri in rejoinder submission submits that Janakiammal’s
D case was that she never engaged any advocate. She, however, stated
that she had signed the compromise application in Tamil. Her case was
that she does not know English and the Compromise was written in
English. Signatures of Janakiammal were taken on compromise
application by D-2, wife of D-1, who in usual course, for the purposes of
business and Tax obtains signatures of Janakiammal from time to time.
E The family was running various businesses. Shri Giri submits that the
judgment of the trial court dated 06.08.1984 in O.S. No.37 of 1984 states
that Vakalatnama of defendant Nos.8 to 13 was not filed. He submits
that certified copy of Vakalatnama filed by advocate Thirumalnesan on
behalf of defendant Nos.8 to 13 has also not been brought on record and
F according to the papers submitted by D-1, the Vakalatnama and the
documents have been destroyed. How can D-1 say that the Vakalatnama
has been destroyed.
35. Shri Giri submits that the house at Tatabad which was included
as Item No.10 in Schedule C in Suit No.1101 of 1987 was purchased
G from a joint family fund. Although the house was taken in auction by D-
1 but the consideration for house was not paid by D-1 individually, rather
the amount was obtained from company Swamy and Swamy Plantations,
which is a private limited company in which D-1, D-4 and D-10 had
shares. The Branch of Rangasamy in Swamy and Swamy Plantations
had about more than one-third share. The Tatabad house having been
H obtained from a private company which was a family business, all the
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 355
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

branches shall have shares in the house. The Suit No.37 of 1984 having A
not included the Tatabad house, the suit for partition of house being Suit
No.1101 of 1987 was fully maintainable and both the Courts erred in not
granting share to the plaintiff in the said house.
36. One of the additional issues, which were framed by the trial
court, was “Whether the suit is not maintainable in view of Order 23 B
Rule 3 (A) of the Code of Civil Procedure?”
37. The trial court has decided the above issue against the plaintiff
holding that separate suit challenging the compromise decree is barred
as per Order XXIII Rule 3A of Civil Procedure Code.
38. The High Court in the impugned judgment as noted above has C
observed that the appeals can be decided on only one point of
consideration, i.e., as to whether Suit No. 1101 of 1997 filed by the
plaintiff Somasundaram challenging the compromise decree dated
06.08.1984 was barred under Order XXIII Rule 3A. The High Court in
the impugned judgment relying on judgments of this Court held that no D
separate suit is maintainable questioning the compromise decree, hence
Suit No.1101 of 1987 was barred. Both the Courts having held that Suit
No.1101 of 1987 filed by the plaintiff is barred under Order XXIII Rule
3A, we deem it appropriate to first consider the above issue.
39. Order XXIII Rule 3 provides for compromise of suit. In Rule E
3 amendments were made by Act No. 104 of 1976 by which a proviso
and an explanation was added. Order XXIII Rule 3 as amended is to the
following effect:-
“3. Compromise of suit. - Where it is proved to the
satisfaction of the Court that a suit has been adjusted wholly or in F
part by any lawful agreement or compromise in writing and signed
by the parties, or where the defendant satisfies the plaintiff in
respect of the whole or any part of the subject-matter of the suit,
the Court shall order such agreement, compromise or satisfaction
to be recorded, and shall pass a decree is accordance therewith so
far as it relates to the parties to the suit, whether or not the subject- G
matter of the agreement, compromise or satisfaction is the same
as the subject-matter of the suit:
Provided that where it is alleged by one party and denied
by the other that an adjustment or satisfaction has been arrived
at, the Court shall decide the question; but no adjournment shall H
356 SUPREME COURT REPORTS [2021] 6 S.C.R.

A be granted for the purpose of deciding the question, unless the
Court, for reasons to be recorded, thinks fit to grant such
adjournment.
Explanation-An agreement or compromise which is void
or voidable under the Indian Contract Act, 1872 (9 of 1872), shall
B not be deemed to be lawful within the meaning of this rule;”
40. By the same amendment Act No.104 of 1976, a new Rule,
i.e., Rule 3A was added providing
“3A. Bar to suit. - No suit shall lie to set aside a decree
on the ground that the compromise on which the decree is based
C was not lawful.”
41. Determination of disputes between persons and bodies is
regulated by law. The legislative policy of all legislatures is to provide a
mechanism for determination of dispute so that dispute may come to an
end and peace in society be restored. Legislative policy also aims for
D giving finality of the litigation, simultaneously providing higher forum of
appeal/revision to vend the grievances of an aggrieved party. Rule 3A
which has been added by above amendment provides that no suit shall
lie to set aside a decree on the ground that the compromise on which the
decree is based was not lawful. At the same time, by adding the proviso
in Rule 3, it is provided that when there is a dispute as to whether an
E adjustment or satisfaction has been arrived at, the same shall be decided
by the Court which recorded the compromise. Rule 3 of Order XXIII
provided 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
F recorded and pass a decree in accordance therewith. Rule 3 uses the
expression “lawful agreement or compromise”. The explanation added
by amendment provided that an agreement or a compromise which is
void or voidable under the Indian Contract Act, 1872, shall not be deemed
to be lawful.”
42. Reading Rule 3 with Proviso and Explanation, it is clear that
G
an agreement or compromise, which is void or voidable, cannot be
recorded by the Courts and even if it is recorded the Court on challenge
of such recording can decide the question. The Explanation refers to
Indian Contract Act. The Indian Contract Act provides as to which
contracts are void or voidable. Section 10 of the Indian Contract Act
H provides that all agreements are contracts if they are made by the free
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 357
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

consent of parties competent to contract, for a lawful consideration and A
with a lawful object, and are not hereby expressly declared to be void.
Section 14 defines free consent in following words:-
“14. “Free consent” defined.—Consent is said to be free
when it is not caused by—
(1) coercion, as defined in section 15, or B
(2) undue influence, as defined in section 16, or
(3) fraud, as defined in section 17, or
(4) misrepresentation, as defined in section 18, or
(5) mistake, subject to the provisions of sections 20, 21 and 22. C
Consent is said to be so caused when it would not have
been given but for the existence of such coercion, undue influence,
fraud, misrepresentation or mistake.”
43. A consent when it is caused due to coercion, undue influence,
fraud, misrepresentation or mistake is not free consent and such D
agreement shall not be contract if free consent is wanting. Sections 15,
16, 17 and 18 define coercion, undue influence, fraud and
misrepresentation. Section 19 deals with voidability of agreements without
free consent. Section 19 is to the following effect:-
“19. Voidability of agreements without free consent.— E
When consent to an agreement is caused by coercion, fraud or
misrepresentation, the agreement is a contract voidable at the
option of the party whose consent was so caused.
A party to a contract whose consent was caused by fraud
or misrepresentation, may, if he thinks fit, insist that the contract F
shall be performed, and that he shall be put in the position in which
he would have been if the representations made had been true.
Exception.—If such consent was caused by
misrepresentation or by silence, fraudulent within the meaning of
section 17, the contract, nevertheless, is not voidable, if the party
whose consent was so caused had the means of discovering the G
truth with ordinary diligence.
Explanation.—A fraud or misrepresentation which did not
cause the consent to a contract of the party on whom such fraud
was practised, or to whom such misrepresentation was made,
does not render a contract voidable.” H
358 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 44. A conjoint reading of Sections 10, 13 and 14 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
B
be lawful as is provided by Explanation to Rule 3 of Order XXIII.
45. We need to examine the grounds on which the compromise
decree dated 06.08.1984 was sought to be impeached by pleadings in
Suit No. 1101 of 1987. Whether the grounds to impeach the compromise
deed are one which can be raised before the Court recording the
C compromise decree as per Rule 3 of Order XXIII? We need to look into
the grounds on the basis of which Suit No.1101 of 1987 was filed
questioning the compromise decree. Paragraphs 12 and 13 of the plaint
contain the allegations, which are to the following effect:-
“12. In the beginning of 1984, the 1st defendant represented
D that since the plaintiff have given personal guarantee to the Bank
for the loans of several lakhs, it would be risky and not expedient
to have the family properties in the name of the plaintiff and it
would be advantageous and safe to keep off the names of the
plaintiff on records as owners. Even there the plaintiff did not
direction and wisdom of the 1st defendant. The 1st defendant further
E represented that the entire family properties would be kept in the
name of defendants- 1 and 4 for the purpose of record and to
avoid the risk of any bank claim. The 1st defendant assured that
this arrangement would not affect or extinguish the plaintiff
legitimate share in the properties. Here again the plaintiff obeyed
F and acted according to the decision and directions of the 1st
defendant.
13. The 1st defendant arranged to file a suit in Sub Court,
Coimbatore, through the family lawyer. It was a collusive suit and
a mere make believe affairs. There was no misunderstanding or
provocations for any one of the members of the family to go to a
G
Court of Law for partition.”
46. In paragraph 15 of the plaint, the plaintiffs had further pleaded
that entre proceedings and the decree secured from the Court is a fraud
played not only on the plaintiff but also against the Court. The plaintiffs
pleads that compromise decree which was intended only to secure and
H safeguard the properties is sham and nominal besides being fraudulent.
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 359
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

47. From the above, it is clear that plaintiff pleaded that compromise A
recorded on 06.08.1984 was not lawful compromise having been obtained
by fraud and misrepresentation. The plaintiff’s case was that they were
represented by D1 that the compromise is being entered only to save the
family property since the plaintiff has given personal guarantee to the
Punjab National Bank for obtaining loan for Vasudeva Mills. Pleadings
B
clearly make out the case of the plaintiff that the consent which he gave
for compromise by signing the compromise was not free consent. The
compromise, thus, become voidable at the instance of the plaintiff.
48. Whether the bar under Rule 3A of Order XXIII shall be
attracted in the facts of the present case as held by the Courts below is
the question to be answered by us. Rule 3A bars the suit to set aside the C
decree on the ground that compromise on which decree was passed
was not lawful. As noted above, the word “lawful” has been used in
Rule 3 and in the Explanation of Rule 3 states that “an agreement or
compromise which is void or voidable under the Indian Contract Act,1872
(9 of 1872), shall not be deemed to be lawful……………….;” D
49. Thus, an agreement or compromise which is clearly void
or voidable shall not be deemed to be lawful and the bar under
Rule 3A shall be attracted if compromise on the basis of which
decree was passed was void or voidable.
50. Order XXIII Rule 3 as well as Rule 3A came for consideration E
before this Court in large number of cases and we need to refer to few
of them to find out the ratio of judgments of this Court in context of Rule
3 and Rule 3A. In Banwari Lal Vs. Chando Devi (Smt.) Though
LRs. And Anr., (1993) 1 SCC 581, this Court considered Rule 3 as
well as Rule 3A of Order XXIII. This Court held that object of the F
Amendment Act, 1976 is to compel the party challenging the compromise
to question the Court which has recorded the compromise. In paragraphs
6 and 7, following was laid down:-
“6. The experience of the courts has been that on many
occasions parties having filed petitions of compromise on basis of G
which decrees are prepared, later for one reason or other challenge
the validity of such compromise. For setting aside such decrees
suits used to be filed which dragged on for years including appeals
to different courts. Keeping in view the predicament of the courts
and the public, several amendments have been introduced in Order
23 of the Code which contain provisions relating to withdrawal H
360 SUPREME COURT REPORTS [2021] 6 S.C.R.

A and adjustment of suit by Civil Procedure Code (Amendment)
Act, 1976. Rule 1 of Order 23 of the Code prescribes that at any
time after the institution of the suit, the plaintiff may abandon his
suit or abandon a part of his claim. Rule 1(3) provides that where
the Court is satisfied (a) that a suit must fail by reason of some
formal defect, or (b) that there are sufficient grounds for allowing
B
the plaintiff to institute a fresh suit for the subject-matter of a suit
or part of a claim, it may, on such terms as it thinks fit, grant the
plaintiff permission to withdraw such suit with liberty to institute a
fresh suit. In view of Rule 1(4) if plaintiff abandons his suit or
withdraws such suit without permission referred to above, he shall
C be precluded from instituting any such suit in respect of such
subject-matter. Rule 3 of Order 23 which contained the procedure
regarding compromise of the suit was also amended to curtail
vexatious and tiring litigation while challenging a compromise
decree. Not only in Rule 3 some special requirements were
introduced before a compromise is recorded by the court including
D
that the lawful agreement or a compromise must be in writing and
signed by the parties, a proviso with an explanation was also added
which is as follows:
“Provided that where it is alleged by one party and denied
by the other that an adjustment or satisfaction has been arrived
E 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.
Explanation.— An agreement or compromise which is
F void or voidable under the Indian Contract Act, 1872 (9 of
1872), shall not be deemed to be lawful within the meaning of
this rule.”
7. By adding the proviso along with an explanation the
purpose and the object of the amending Act appears to be to
G compel the party challenging the compromise to question the same
before the court which had recorded the compromise in question.
That court was enjoined to decide the controversy whether the
parties have arrived at an adjustment in a lawful manner. The
explanation made it clear that an agreement or a compromise
H which is void or voidable under the Indian Contract Act shall not
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 361
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

be deemed to be lawful within the meaning of the said rule. Having A
introduced the proviso along with the explanation in Rule 3 in
order to avoid multiplicity of suit and prolonged litigation, a specific
bar was prescribed by Rule 3-A in respect of institution of a
separate suit for setting aside a decree on basis of a compromise
saying:
B
“3-A. Bar to suit.— No suit shall lie to set aside a decree
on the ground that the compromise on which the decree is
based was not lawful.”
51. The next judgment to be noted is Pushpa Devi Bhagat (Dead)
Through LR. Sadhna Rai (Smt.) Vs. Rajinder Singh and Ors., C
(2006) 5 SCC 566, Justice R.V. Raveendran speaking for the Court
noted the provisions of Order XXIII Rule 3 and Rule 3A and recorded
his conclusions in paragraph 17 in following words:-
“17. The position that emerges from the amended provisions
of Order 23 can be summed up thus: D
(i) No appeal is maintainable against a consent decree
having regard to the specific bar contained in Section 96(3) CPC.
(ii) No appeal is maintainable against the order of the court
recording the compromise (or refusing to record a compromise)
in view of the deletion of clause (m) of Rule 1 Order 43. E
(iii) No independent suit can be filed for setting aside a
compromise decree on the ground that the compromise was not
lawful in view of the bar contained in Rule 3-A.
(iv) A consent decree operates as an estoppel and is valid
F
and binding unless it is set aside by the court which passed the
consent decree, by an order on an application under the proviso to
Rule 3 Order 23.
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, G
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 H
362 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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.
B
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
C was not maintainable, having regard to the express bar contained
in Section 96(3) of the Code.”
52. The next judgment is R. Rajanna Vs. S.R. Venkataswamy
and Ors., (2014) 15 SCC 471 in which provisions of Order XXIII
Rule 3 and Rule 3A were again considered. After extracting the aforesaid
D provisions, following was held by this Court in paragraph 11:-
“11. It is manifest from a plain reading of the above that in
terms of the proviso to Order 23 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
E parties, the Court before whom such question is raised, shall decide
the same. What is important is that in terms of Explanation to
Order 23 Rule 3, the agreement or compromise shall not be deemed
to be lawful within the meaning of the said Rule if the same is
void or voidable under the Contract Act, 1872. It follows that in
every case where the question arises whether or not there has
F 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
G same void or voidable under the Contract Act. More importantly,
Order 23 Rule 3-A 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
H or compromise, it is that court and that court alone who can
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 363
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

examine and determine that question. The court cannot direct the A
parties to file a separate suit on the subject for no such suit will lie
in view of the provisions of Order 23 Rule 3-A CPC. That is
precisely what has happened in the case at hand. When the
appellant filed OS No. 5326 of 2005 to challenge the validity of
the compromise decree, the court before whom the suit came up
B
rejected the plaint under Order 7 Rule 11 CPC on the application
made by the respondents holding that such a suit was barred by
the provisions of Order 23 Rule 3-A 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 C
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.”
53. The judgments of Pushpa Devi(supra) as well as Banwari
Lal (supra) were referred to and relied by this Court. This Court held D
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.
54. In subsequent judgment, Triloki Nath Singh Vs. Anirudh E
Singh (Dead) Through Legal Representatives and Ors., (2020) 6
SCC 629, this Court again referring to earlier judgments reiterated the
same preposition, i.e., 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 separate suit is not maintainable. In
paragraphs 17 and 18, following has been laid down:- F
“17. By introducing the amendment to the Civil Procedure
Code (Amendment) 1976 w.e.f. 1-2-1977, the legislature has
brought into force Order 23 Rule 3-A, which creates bar to institute
the suit to set aside a decree on the ground that the compromise
on which decree is based was not lawful. The purpose of effecting G
a compromise between the parties is to put an end to the various
disputes pending before the court of competent jurisdiction once
and for all.
18. Finality of decisions is an underlying principle of all
adjudicating forums. Thus, creation of further litigation should never H
364 SUPREME COURT REPORTS [2021] 6 S.C.R.

A be the basis of a compromise between the parties. Rule 3-A of
Order 23 CPC put a specific bar that no suit shall lie to set aside
a decree on the ground that the compromise on which the decree
is based was not lawful. The scheme of Order 23 Rule 3 CPC is
to avoid multiplicity of litigation and permit parties to amicably
come to a settlement which is lawful, is in writing and a voluntary
B
act on the part of the parties. The court can be instrumental in
having an agreed compromise effected and finality attached to
the same. The court should never be party to imposition of a
compromise upon an unwilling party, still open to be questioned on
an application under the proviso to Order 23 Rule 3 CPC before
C the court.”
55. The above judgments contain a clear ratio that 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 compromise
D and a separate suit challenging the consent decree has been held to be
not maintainable. In Suit No.1101 of 1987, the plaintiff prayed for a
declaration declaring that the decree passed in O.S. No. 37 of 1984 is
sham and nominal, ultravires, collusive, unsustainable invalid,
unenforceable and not binding on the plaintiffs. We have noted the grounds
as contained in the plaint to challenge the consent decree in foregoing
E paragraphs from which it is clear that the compromise, which was
recorded on 06.08.1984 was sought to be termed as not lawful, i.e., void
or voidable. On the basis of grounds which have been taken by the
plaintiff in Suit No.1101 of 1987, the only remedy available to the plaintiff
was to approach the court in the same case and satisfy the court that
F compromise was not lawful. Rule 3A was specifically added by the
amendment to bar separate suit to challenge the compromise decree
which according to legislative intent to arrest the multiplicity of
proceedings. We, thus, do not find any error in the judgment of trial court
and High Court holding that Suit No.1101 of 1987 was barred under
Order XXIII Rule 3A.
G
56. We having found that Suit No.1101 of 1987 being barred under
Order XXIII Rule 3A, it is not necessary for us to enter into correctness
or otherwise of the grounds taken in the plaint for questioning the
compromise decree dated 06.08.1984. The compromise decree dated
06.08.1984, thus, could not have been questioned in Suit No. 1101 of
H 1987.
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 365
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

57. There remains one more submission which needs to be A
considered.
58. Learned counsel for the appellants contends that even if
consent decree dated 06.08.1984 could not have been challenged, the
appellants were entitled for shares in residential building at Tatabad, Dr.
Alagappa Chettiar Road, Coimbatore, which was left out from the decree B
dated 06.08.1984. The above residential suit property was not a part in
O.S. No.37 of 1984 and was not in compromise decree dated 06.08.1984.
The averment of the appellant is that the said residential property was
although in the name of defendant No.1 but it was acquired from joint
family funds hence the appellant had also share in the property.
C
59. The residential building at Tatabad, Dr. Alagappa Chettiar Road,
Coimbatore was included in Item No.10 of Schedule ‘B’ of properties to
the following effect:
“Item No.X
In Coimbatore Registration on District, Coimbatore D
Corporation Limits, Tatabad, Dr. Alagappa Chettiar Road,
D.No.101, Extent 0.33 acres with 4500 sq.ft. built up residential
building.”
60. The above residential property was neither included in
O.S.No.37 of 1984 nor part of compromise decree dated 06.08.1984. E
The plaintiff’s prayer to declare the decree passed in O.S.37 of 1984 as
unenforceable shall not preclude the consideration of a property which
was not part of the decree. The appellants’ case for claiming share in
the residential property at Tatabad, Alagappa Chettiar Road, Coimbatore,
thus, needs to be considered in these appeals. F
61. We may first notice pleadings regarding the case of the plaintiff
and defendant No.1 with regard to above mentioned house property as
reflected in O.S. No.1101 of 1987.
62. In paragraph 6(e) of the plaint, following has been pleaded by
the plaintiff: G
“6(e) In 1978 a palatial bungalow was purchased in Tatabad,
Coimbatore. This is set out and described as Item No.10 of
Schedule ‘B’. The acquisition of this property was only out of the
joint income and for the benefit of the family.”
H
366 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 63. Defendant Nos.1 to 3 filed written statements in O.S. No.1101
of 1987 and with regard to above averment made in paragraph 6(e),
following has been pleaded by the defendant No.1:
“6. The allegations in paragraph 6 of the plaint are not wholly
true. The allegation that the property described as Item No.10 of
B Schedule ‘B’ was acquired out of the joint income for the benefit
of the family is absolutely false. Firstly there was no joint income.
Secondly there is no family, thirdly it was not purchased out of
joint income. The property was taken in auction by the 1st
defendant. The amount necessary for payment of the price was
drawn by the 1st defendant from Swamy & Swamy Co. The
C amount was debited against him in the amounts of the Swamy &
Co.”
64. The case of defendant No.1 was that above property was
purchased in auction by the defendant No.1. The defendant No.1 had
filed Ex.B-27 in support of his claim that house property is a separate
D property of defendant No.1. Ex.B-27 indicates that defendant No.1 was
declared as the purchaser of the property as sold by public auction held
on 28.11.1979 for Rs.1,51,000/-. Ex.B-27 was a sale certificate issued
by Court of Subordinate Judge, Coimbatore to the above effect. Although
in paragraph 6 of the written statement the defendant No.1 had pleaded
E that amount necessary for payment of price was drawn by defendant
No.1 from Swamy and Swamy Co. Defendant No.1 appeared in Witness
Box as DW-2 and stated in his cross-examination that he has for payment
of house property at Tatabad utilised the funds of the Swamy and Swamy
Plantations Co. In his cross-examination, he admitted that he had taken
Rs.1,50,000/-. In his cross-examination, following was stated by defendant
F No.2:
“It is incorrect to say that for purchasing house company
funds were taken. I do not remember and there are no records to
show from which partnership and from which account it was
drawn. It is not correct to say that I took joint family funds and
G purchased. I would have taken about Rs.1.50 lakhs. It was not
returned. Records cannot be produced now.”
65. In subsequent cross-examination, he clearly mentioned that
the amount which was taken for the purchase of the house property at
Tatabad was not returned to Swamy and Swamy Plantations Co. In his
H cross-examination on 12.08.1997, defendant No.2 states:
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 367
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

“On 12.8.1997 the witness was sworn and re-examined. A
The reason for not returning the amount to Swamy & Sawmy
Plantation Company from which it was borrowed for the purchase
of the house in Tatabad, because there was credit balance in my
name in the said company.”
B
66. Evidence on record, thus, indicates that Tatabad house property
was purchased in the name of defendant No.1 and the consideration for
purchase was paid from Swamy and Swamy Plantations Co. having its
Directors and shareholders only the family members of all the branches.
In his cross-examination defendant No.2 has stated:
C
“We started Co. by name Swamy and Swamy Plantations
in 1974 in which members of all the three branches of the family
were the shareholders.”
67. The details of the shareholders of the Swamy and Swamy
Plantations (P) Ltd., Coonoor, were mentioned in O.S.No.37 of 1984 as
D
Item No.10 of Schedule ‘C’ which is to the following effect:
“Item No.10
Details of shares in M/s. Swami and Swami Plantations
(P) Ltd., Coonoor.
S.No. Name No. of Shares Total Value E

1. S. K. Kumaraswamy 920 Rs. 92,000.00
2. S. K. Chinnasamy 440 Rs. 44,000.00
3. S. R.Shanmugavelautham 410 Rs. 41,000.00
F
4. S. R. Somasundaram 230 Rs. 23,000.00
5. Smt. R. Janaiammal 810 Rs. 1,000.00
6. Smt. S. Saraswathy 750 Rs. 75,000.00
7. C. Kamalam 610 Rs. 61,000.00 G
8. Smt. C. Sathiyavathi 75 Rs. 7,500.00
Total 4245 Rs. 4,24,500.00”
68. As per details given above the Rangasamy branch held 2190
shares out of 4245 shares which is more than 50% shares of the Company. H
368 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 69. The main plank of submission on behalf of respondent No.1 is
that after the partition dated 07.11.1960, the three branches had separated
and joint family status came to end. He submitted that partition dated
07.11.1960 is the registered partnership deed which partition was accepted
by trial court in its judgment. The partition of joint family of three branches
having been accepted on 07.11.1960 there was no joint family when the
B
Tatabad house property was purchased in 1979.
70. The submission of the learned counsel for the appellants in
support of the appeals is that partition dated 07.11.1960 was entered
between three brothers to save the landed property from Land Ceiling
Act. The partition deed dated 07.11.1960 was got registered on 07.11.1960,
C
it claims that parties have divided immovable properties on 01.04.1960.
The submission is that Land Ceiling Act was being implemented
immediately after 01.04.1960 hence the said claim was set up in the
partition deed. The partition deed was executed to save the landed
property of the three branches and there was no intention of separating
D each branch and bringing the change in joint family status. The submission
of Shri Giri has been reiterated which was also raised before the High
Court that after partition dated 07.11.1960 the three brothers united and
joint family continued even after 07.11.1960, which is evident from
different properties purchased in the name of all the three branches,
living together in ancestral house at Sadapalayam and newly constructed
E
house at Somnur. After the purchase of land in 1963 all the three branches
continued to run family businesses together.
71. Learned counsel for the appellants further submits that it is
own case of defendant No.1 that partition agreement dated 08.03.1981
took between the parties under which Rangasamy branch agreed to
F
take Vasudeva Textile Mills, the branch of defendant No.1, S.K.
Kumarasamy decided to take property at Coonoor and Vedapathi village
and Chinnasamy branch decided to take property at Somnur. Defendant
No.1 has pleaded that under the agreement dated 08.03.1981, the plaintiff
had to pay Rs.7 lacs to defendant No.4 and defendant No.1 had to pay
G Rs.4 lacs to defendant No.4 to equalise the valuation by partition as was
agreed on 08.03.1981. Shri Giri submits that DW.1 himself came with
case that partition had taken place on 08.03.1983 and compromise decree
was nothing but implementation of the said agreement. Shri Giri submits
that when defendant No.1 himself states about the partition in the year
1981, the partition pre-supposes the joint family and had the three
H
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 369
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

branches separated from 07.11.1960, there was no question of again A
effecting partition in the year 1981.
72. One of the points for consideration before us is that as to
whether at the time when Tatabad house was acquired by defendant
No.1 whether all three branches were part of joint family or all the three
branches after partition dated 07.11.1960 continued to be separate from B
each other.
73. The sheet anchor of the defendant No.1 is that three branches
of family were not joint as it was partitioned by partition deed dated
07.11.1960. The partition deed dated 07.11.1960 is a registered partition
deed between three branches. The partition deed dated 07.11.1960 C
referred to earlier partition deed dated 27.09.1953 by which the father
of three brothers partitioned property between son of his first wife and
his three sons from second wife. The properties which were allotted to
in the partition deed dated 27.09.1953 was 86.72 acres between three
brothers. The Partition Deed dated 07.11.1960 reads:-
D
“A Document dated 28.09.1953 bearing No.3158/1953 has
been registered at the Coimbatore Registrar’s Office as a Partition
Deed and has been executed on the 27th day of September, 1953
wherein the properties belonging to our brother Sennimalai
Gounder, the son of the first wife of our father A.V. Kandasamy
Gounder between us and our father. We have been enjoying the E
properties allotted to the three of us vide the said document as
one family and have developed it, sold it, done agriculture in it and
carried out business. We have also partitioned among us.
Since we decided to partition amongst ourselves we have
divided the business capital belonging to our joint family vide F
accounts dated 1.4.1960. We have already divided the jewels,
utensils and other articles and each of us are enjoying them
separately. Though on 01.04.1960 we have divided the immovable
properties such as house buildings, factory buildings, farm and
lands to avoid litigation among us in future we have registered it G
through this document.”
74. The case of the appellant is that the partition deed dated
07.11.1960 was entered between three brothers to save the properties
from land ceiling laws. The relevant date under the Land Ceiling Act
was 07.04.1960 on which date the extent of properties in hands of a H
370 SUPREME COURT REPORTS [2021] 6 S.C.R.

A person has to be determined and since three brothers, who consisted
members of joint family on the relevant date had more than the land
which was permitted to a person, a partition was entered to save the
properties from land ceiling laws. This argument was rejected by the
trial court holding that it has not been proved that land ceiling laws in any
manner affected the extent of land in the hands of three brothers. We
B
need to notice some provisions of Tamil Nadu Land Reforms (Fixation
of Ceiling on Land) Act, 1961. Section 3 of the Act which is a definition
clause defines the word “person” in Section 3(34) which is to the following
effect:-
“3(34). “person” includes any company, family firm, society
C or association of individuals, whether incorporated or not or any
private trust or public trust.”
75. Section 5 of the Act provide for ceiling area. According to
sub-section (1)(a) of Section 5 the ceiling area in the case of every
person and in the case of every family consisting of not more than five
D members was 30 standard acres. Figure of 30 standard acres was
subsequently reduced to 15 standard acres by Tamil Nadu Act No. 37 of
1972. Section 5(1)(b) further provided that ceiling area in the case of
every family consisting of more than five members shall be 30 standard
acres together with an additional 5 standard acres for every member of
E the family in excess of five. In event, the ceiling area is determined
treating the Hindu Undivided Family, joint family consisting of three
brothers, the ceiling area shall be 30 standard acres by which 5 acres
additional for every member of the family in excess of five. The land
which was possessed by the three brothers in the year 1960 was more
than 86.52 acres, which extent was received by the three brothers in
F 1953 partition. Thereafter three brothers have acquired further land. In
case, three brothers before 07.04.1960 partition their joint family, then
each person will be entitled to 30 acres. Thus, partition of the properties
among three brothers was clearly beneficial to the properties possessed
by the three brothers. The view of the trial court that it is not proved that
G any benefit under the Ceiling of Land Act could have been obtained by
three brothers is clearly untenable. The view expressed by the trial court
was not after examining the provisions of Act, 1961. Further the statement
in the partition that three brothers have already divided the immovable
properties on 01.04.1960 clearly was with intent to get away from Act,
1961 since the relevant date under the Ceiling Act was 07.04.1960.
H
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 371
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

76. Under Hindu Law, any member of the joint family can separate A
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. From the above, it is clear that 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
B
with object to get away from application of Ceiling Act, 1961. The intention
of the parties when they partitioned their properties in the year 1960 is a
relevant fact.
77. However, the 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 C
said partition. The question is as to whether after 07.11.1960, the family
continued as a Joint Family or the status of joint family came to an end
on 07.11.1960. The case of the appellant which was also pressed by the
High Court was that even if partition dated 07.11.1960 is accepted; the
parties lived in a joint family and continued their joint family status. The D
contention advanced by the appellant was that 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.
78. The concept of reunion in Hindu Law is well known. Hindu E
Joint Family even if partitioned can revert back and reunite to continue
the status of joint family. Mulla on Hindu Law, 22nd Edition, while
deliberating on reunion has status following in paragraphs 341, 342 and
343:-
“341. Who may reunite,- ‘A reunion in estate properly so called, F
can only take place between persons who were parties to the
original partition’. It would appear from this that a reunion can
take place between any persons who were parties to the original
partition. Only males can reunite.
342. Effect of reunion,- The effect of a reunion is to remit the G
reunited members to their former status as members of a joint
Hindu family.
343. Intention necessary to constitute reunion: To constitute
a reunion, there must be an intention of the parties to reunite in
estate and interest. In Bhagwan Dayal v. Reoti Devi, the
H
372 SUPREME COURT REPORTS [2021] 6 S.C.R.

A Supreme Court pointed out that it is implicit in the concept of a
reunion that there shall be an agreement between the parties to
reunite in estate with an intention to revert to their former status.
Such an agreement may be express or may be implied by the
conduct of the parties. The conduct must be of an incontrovertible
character and the burden lies heavily on the party who assets
B
reunion.”
79. The Privy Council in Palani Ammal Vs.
Muthuvenkatacharla Moniagar and Ors., AIR 1925 PC 49 has
held that if a joint Hindu family separates, the family or any members of
it may agree to reunite as a joint Hindu family, but such a reuniting is for
C obvious reasons, which would apply in many cases under the law of the
Mitakshara, of very rare occurrence, and when it happens it must be
strictly proved as any other disputed fact is proved. In paragraph 9, the
Privy Council laid down following :-
“9. But the mere fact that the shares of the coparceners
D have been ascertained does not by itself necessarily lead to an
inference that the family had separated. There may be reasons
other than a contemplated immediate separation for ascertaining
what the shares of the coparceners on a separation would be. It
is also now beyond doubt that a member of such a joint family can
E separate himself from the other members of the joint family and
is on separation entitled to have his share in the property of the
joint family ascertained and partitioned off for him, and that the
remaining coparceners, without any special agreement amongst
themselves, may continue to be coparceners and to enjoy as
members of a joint family what remained after such a partition of
F the family property. That the remaining members continued to be
joint may, if disputed, be inferred from the way in which their
family business was carried on after their previous coparcener
had separated from them. It is also quite clear that if a joint Hindu
family separates, the family or any members of it may agree to
G reunite as a joint Hindu family, but such a reuniting is for obvious
reasons, which would apply in many cases under the law of the
Mitakshara, of very rare occurrence, and when it happens it must
be strictly proved as any other disputed fact is proved. The leading
authority for that last proposition is Balabux Ladhuram v.
Rukhmabai (1903) 30 Cal. 725.”
H
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 373
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

80. Another judgment which needs to be noticed is judgment of A
Madras High Court in Mukku Venkataramayya Vs. Mukku Tatayya
and Ors., AIR 1943 Mad. 538. In the above case, there was partition
in the family in the year 1903 as a result of which the father with his
second wife and children separated and begin to live apart from his sons
by the first wife. The case of the respondent was that he and his brothers
B
continued to remain joint after their father decided to remain away from
them in 1903. An alternative case was also put forward that there has
been a reunion amongst the brothers after the partition. Madras High
Court in paragraph 5 stated:-
“5. ……………………..But if a general partition between
all the members takes place, re-union is the only means by which C
the joint status can be re-established. Mere jointness in residence,
food or worship or a mere trading together cannot bring about the
conversion of the divided status into a joint one with all the usual
incidents of jointness in estate and interest unless an intention to
become re-united in the sense of the Hindu law is clearly D
established. The rule is, if I may say so with respect, correctly
stated by the Patna High Court, in Pan Kuer v. Ram Narain
Chowdhary, A.I.R. 1929 Pat. 353 where the learned Judge
observes that:
To establish it, (reunion), it is necessary to show not only E
that the parties already divided, lived or traded together, but that
they did so with the intention of thereby altering their status and
of forming a joint estate with all its usual incidents.
81. The High Court held that the brothers, who had divided, lived
and traded together, the case of the reunion was accepted. In paragraph F
17, following was laid down:-
“17. The question then is, whether this finding is sufficient
to support a case of reunion. We are conscious that the burden of
proof is heavily on the respondent and also that proof of mere
jointness in residence, food and worship dees not necessarily make G
out reunion. What is to be established is that not only did the
parties who had divided lived and traded together, but that they
did so with the intention of thereby altering their divided status
into a joint status with all the usual incidents of jointness in estate
and interest. In our opinion the way in which the brothers dealt
H
374 SUPREME COURT REPORTS [2021] 6 S.C.R.

A with each other leaves no room for doubt that it was their deliberate
intention to reunite so as to reproduce the joint status which had
existed before the partition of 1903. The immediate object of the
partition was to enable the father to live separately from his sons
by the first wife, as misunderstandings had arisen between them.
As between the sons themselves there never was any reason for
B
a separation inter se and there can be no doubt that the moment
they separated away from their father they desired to live and
lived together in joint status. It is true that at that time the first
respondent was a minor. But this can make little difference if
after he attained majority he accepted the position in which the
C appellant and Nagayya had already begun to live together. In our
view it is not necessary that there should be a formal and express
agreement to reunite. Such an agreement can be established by
clear evidence of conduct incapable of explanation on any other
footing. Such, in our view, is the position here established. That
being so, the claim of the appellant to the exclusive ownership of
D
the properties in suit must be negatived. The appeal fails and must
therefore be dismissed with costs.”
82. One more judgment on the concept of reunion which need to
be referred to is the judgment of Karnataka High Court is M/s.
Paramanand L. Bajaj, Bangalore Vs. The Commissioner of Income
E Tax, Karnataka, II, Bangalore, (1981) SCC Online Karnataka
131. Justice Rama Jois after referring to Smritis and relevant judgments
on the subject laid down that reunion is the reversal of the process of
partition, following was held in paragraphs 8 and 12:-
“8. The basic proposition of Hindu Law on reunion is laid
F down in Brihaspati Smriti (Gaekwad’s Oriental Series, Vol.
LXXXV-pp 214-215), also vide Smrti-Chandrika III
Vyavaharakanda Part II (1916) published by Government of
highness the Maharaja of Mysore pp 702-703; English version
J.R. Gharpura (1952) Part III pp 667-670).
G

He who being once separated dwells again through
affection with his father brought or paternal uncle is termed
reunited.
H
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 375
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

A

When two coparceners have again become reunited through
affection, they shall mutually participate in each others properties.
The view expressed by Devanna Bhatta, the author of Smriti-
Chandrika on the text of Brihaspati is- B

C
Association not necessarily being by co-residence, the
association is expressed to be through wealth; so by way of
removing the distinguishing factor of that, it should be understood
that the re-association of the separated members shall be to the
extent of pooling together(all) the wealth etc., as before, and not
merely by a co-residence only. D
Mitakshra on Yaj.II 138-139, which lay down special rule
of inheritance at a partition among reunited members explains the
effect of reunion as follows:

E

Effects which had been divided and which are again mixed
together are termed re-united. He, to whom such appertain, is a
re-united parcener.
The aforesaid provisions have been the subject matter of F
interpretation in number of cases.
12. On a consideration of the basic texts on the point and
the views of commentators expressed in Mitakshara and Smriti-
chandrika and the case law cited before us and having due regard
to the real purpose and intent of the Hindu law governing HUF, it G
appears to us that provision for reunion has been provided for, for
enabling erstwhile members of a Hindu undivided family, to come
together and to form once again a joint family governed by
Mitakshara law. The mutual love, affection arising from blood
relationship and the desire to reunite proceeding therefrom, H
376 SUPREME COURT REPORTS [2021] 6 S.C.R.

A constitutes the very foundation of reunion. This is evident from
the text of Brihaspati in which even the relationship of persons
who could reunite is specified though some of the commentators
have taken the view that it is only illustrative and not exhaustive
and that reunion is possible even among persons not specified in
the text of Brihaspati. (See: Virmitrodaya, translated by
B
Gopalachandra Sarkar (1879) pp 204-205; Vivadachintamani
Gaekwad’s Oriental Series Vol. XCIX pp 288-289). But even so
there is no controversy that reunion is possible only among persons
who were on an earlier date members of a HUF. Reunion therefore
is a reversal of the process of partion. Therefore, it is reasonable
C to take the view that reunion is not merely an agreement to live
together as tenants in common, but is intended to bring about a
fusion in interest and estate among the divided members of an
erstwhile HUF so as to restore to them the status of HUF once
again and therefore reunion creates right on all the reuniting
coparceners in the joint family properties which were the subject
D matter of partition among them to the extent they were not
dissipated away before the date of reunion. That would be the
legal consequence of a genuine reunion is forcefully brought about
by the text of Brihaspati, which provides “where coparceners
have again reunited through affection, they shall mutually
E participate in each others properties”. Mitakshara states that
mixing up of divided properties is the effect of reunion. Therefore
it follows, no coparcener, who is a party to a reunion and who
admits reunion, shall be heard to contend that the property which
he had got at an earlier partition and still with him has not become
the property of the reconstituted HUF. But there can be no doubt
F that reunion, when disputed must be proved as any disputed
question of fact and the circumstances that all the reuniting
members have not brought back their properties to form the
common-stock, may support the plea taken by any concerned
party that there was no reunion. However, if reunion is admitted
G by all the parties to the reunion or it is proved, the share of the
properties of reunited members got at an earlier partition and in
their possession at the time of reunion becomes the properties of
the joint family, notwithstanding the fact that some of them have
failed to throw those properties into the common hotch pot, whether
with or without the knowledge or consent of each other. It is a
H different aspect if reunion itself is not admitted by the persons
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 377
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

who are parties to a reunion and it is not proved by the party A
pleading reunion, in which event there would be no reunion at
all.”
83. We may now notice the judgment of this Court dealing with
reunion in a Hindu Undivided Family. In Bhagwan Dayal Vs. Reoti
Devi, AIR 1962 SC 287, this Court examined the principles of Hindu B
Law and principles of Hindu Joint Family. In paragraph 16, it was held
that the general principle is that every Hindu family is presumed to be
joint unless the contrary is proved; but this presumption can be rebutted
by direct evidence or by course of conduct. In the above case, one of
the questions was as to whether there was reunion between members
of the Joint Family after partition. This Court quoted with approval the C
judgments of Privy Council in Palani Ammal (supra) and laid down
following in paragraph 22:-
“22. For the correct approach to this question, it would be
convenient to quote at the outset the observations of the Judicial
Committee in Palani Ammal v. Muthuvenkatacharla Moniagar D
[(1924) LR 52 IA 83, 86] :
“It is also quite clear that if a joint Hindu family separates, the
family or any members of it may agree to reunite as a joint
Hindu family, but such a reuniting is for obvious reasons, which
would apply in many cases under the law of the Mitakshara, E
of very rare occurrence, and when it happens it must be strictly
proved as any other disputed fact is proved. The leading authority
for that last proposition is Baldbux Ladhuram v. Rukhmabai
[(1903) LR 30 IA 190] .”
It is also well settled that to constitute a reunion there must be an
intention of the parties to reunite in estate and interest. It is implicit F
in the concept of a reunion that there shall be an agreement
between the parties to reunite in estate with an intention to revert
to their former status of members of a joint Hindu family. Such an
agreement need not be express, but may be implied from the
conduct of the parties alleged to have reunited. But the conduct G
must be of such an incontrovertible character that an agreement
of reunion must be necessarily implied therefrom. As the burden
is heavy on a party asserting reunion, ambiguous pieces of conduct
equally consistent with a reunion or ordinary joint enjoyment cannot
sustain a plea of reunion. The legal position has been neatly
summarized in Mayne’s Hindu law, 11th Edn., thus at p. 569: H
378 SUPREME COURT REPORTS [2021] 6 S.C.R.

A “As the presumption is in favour of union until a partition is
made out, so after a partition the presumption would be against
a reunion. To establish it, it is necessary to show, not only that
the parties already divided, lived or traded together, but that
they did so with the intention of thereby altering their status and
of forming a joint estate with all its usual incidents. It requires
B
very cogent evidence to satisfy the burden of establishing that
by agreement between them, the divided members of a joint
Hindu family have succeeded in so altering their status as to
bring themselves within all the rights and obligations that follow
from the fresh formation of a joint undivided Hindu family.”
C As we give our full assent to these observations, we need
not pursue the matter with further citations except to consider
two decisions strongly relied upon by the learned Attorney-
General. Venkataramayya v. Tatayya [AIR 1943 Mad 538] is a
decision of a Division Bench of the Madras High Court. It was
D pointed out there that “mere jointness in residence, food or worship
or a mere trading together cannot bring about the conversion of
the divided status into a joint one with all the usual incidents of
jointness in estate and interest unless an intention to become
reunited in the sense of the Hindu law is clearly established”. The
said proposition is unexceptionable, and indeed that is the well
E settled law. But on the facts of that case, the learned Judges
came to the conclusion that there was a reunion. The partition
there was effected between a father and his sons by the first
wife. One of the sons was a minor. The question was whether
there was a reunion between the brothers soon after the alleged
F partition. The learned Judges held that as between the sons there
was never any reason for separation inter se, and that the evidence
disclosed that on their conduct no explanation other than reunion
was possible. They also pointed out that though at the time of
partition one of the brothers was a minor, after he attained majority,
he accepted the position of reunion. The observations relied upon
G by the learned Attorney-General read thus:
“In our view, it is not necessary that there should be a formal
and express agreement to reunite. Such an agreement can be
established by clear evidence of conduct incapable of
explanation on any other footing.”
H
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 379
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

This principle also is unexceptionable. But the facts of that case A
are entirely different from those in the present case, and the
conclusion arrived at by the learned Judges cannot help us in arriving
at a finding in the instant case.”
84. The above observations indicates that this Court also approved
the Madras High Court judgment in Mukku Venkataramayya(supra). B
Again this Court in Anil Kumar Mitra and Ors. Vs. Ganendra Nath
Mitra and Ors., (1997) 9 SCC 725 held that the acts of the parties
may lead to the inference that parties reunited after previous partition.
In paragraph 4, following observations have been made:-
“4. …………………………It is true that by the acts of the parties C
that even after the previous partition, they continued to be members
of the joint family. But it should be by conduct and treatment
meted out to the properties by the members of the family in this
regard……………………………”
85. Now, we look into other materials on record. The ancestral D
house of the parties was at Helmet, Sedapalayam, Village
Karumathampaty where three brothers alongwith their father A.V.
Kandaswamy used to live. DW2 in her statement has also stated that
after she was married with Rangasamy, she lived at ancestral house at
Sedapalayam. Further the three brothers in the year 1963 purchased the
house site at HemletSomanur and constructed a new house where three E
brothers with their families shifted and lived at Somanur which become
the new home of the Joint Family consisting of three brothers. The new
house was constructed after purchasing the land in the year 1963 and
the families of the three brothers started living at about in 1964, which
clearly indicate that intention of all the brothers was to live jointly and F
continue as Joint Hindu Family. After partition dated 07.11.1960, three
branches have purchased several immovable properties together, details
of which are as follows:-
i) Sale deed dated 09.06.1962 filed as exhibit A-42 in favour
of (a) K.Rangasamy, (b) S.K.Kumarasamy and (c) G
S.K.Chinmasamy of the land to the extent of 5.6 acres in
Karumathampaty village.
ii) Sale deed dated 16.10.1963 which has been filed as exhibit
A-43. By sale deed, property was purchased for construction
of house only which fact was stated in the sale deed itself.
H
380 SUPREME COURT REPORTS [2021] 6 S.C.R.

A The sale deed was in the name of three brothers (a)
K.Rangasamy, (b) S.K.Kumarasamy and (c)
S.K.Chinmasamy.
iii) On 14.09.1972, by three sale deeds which were filed as
exhibit A-41, B-10 and B-11, huge property situated at
B Coonoor namely High Field estate was purchased in the
name of S.K.Kumarasamy, S.R.Somasundaram(minor in
the guardianship of his mother Mrs. Janakiammal),
S.R.Shammugha velcyutham in which estate the family
carried business.
C 86. The three branches continued joint business by establishing
firms and companies which was carried by joint family in the partnership
or by private company. It was only the members of the family, who
were shareholders and directors. The purchase of various immovable
properties in the names of the three branches clearly indicate the intention
that all the three branches are joint and they are purchasing the properties
D in the name of all the three branches. After the death of Rangasamy in
the year 1967, it was S.K. Kumarasamy, defendant No.1, who took the
reins of the family being the eldest. The plaintiff and defendant No.10,
sons of Ranagasamy were very young at the time when their father died
and thereafter they were under the guidance and control of defendant
E No.1 and the materials on the record indicate that it was the defendant
No.1 under whose guidance, all businesses were carried out. Even the
Suit No.37 of 1984 which was filed for partition of properties was at the
instance of defendant No.1, which pleadings have been made by the
plaintiff of that suit when he filed written statement in Suit No. 1101 of
1987. The plaintiff of Suit No.37 of 1984 Senthil Kumaravel in his written
F statement in Suit No. 1101 of 1987 has clearly stated that he filed the
Suit No.37 of 1984 at the instance of defendant No.1, which fact has
also been noted in paragraph 9 of the trial court’s judgment.
87. It is relevant to note that in suit No.1101 of 1987, it was only
D-1, who filed the written statement and appeared in the witness box.
G D-4, S.K. Chinnasamy, neither filed written statement nor came to the
witness box. It was D-1 who was pleading that joint family came to the
an end after partition dated 07.11.1960. D-1 in his written statement and
in his oral statement before the court has come up with the case that
there was partition of the properties on 08.03.1981 and an agreement
H was entered between the three branches and compromise decree dated
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 381
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

06.08.1984 was passed to implement the agreement which was entered A
in the year 1981. In the written statement filed by D-1 to D-3, in
paragraphs 16 and 17, following was pleaded by D-1:-
“16....The arrangement to put an end to the co-ownership had
been arrived at even in 1981 and separate ownership had been
agreed upon. Hence there could be no representation or assurance B
as alleged in the plaint.
17....As the mode of division and allotment of the various items
had been agreed upon previously and the amounts were paid to
the 4th defendant the compromise was arrived at, an early date in
a smooth manner and the decree was passed in terms thereof. C
The decree has also been registered. At the terms of the agreement
were being incorporated in the compromise the parties were
advised that it was not necessary to refer to the agreement dated
08.03.1981 in the compromise.”
88. The case of partition of all properties by agreement dated D
08.03.1981 standing in name of different branches including the branch
of Rangasamy was the case of defendant No.1 who was the eldest
member of the family and has been denying the jointness of the family
after 07.11.1960. D-1 S.K. Chinnasamy appeared in witness box as
DW-2. In his cross examination dated 10.04.1997, DW-2 stated: -
E
“In March, 1981, we divided the common properties. On 08.03.1981
we reduced the same in to a written agreement, written on stamp
paper, and we signed the same. Myself, 4th, 7th and 10th defendants
and the plaintiff signed in it. Three copies were taken. The same
has not been filed. All of us had signed in all the three copies. We
took possession of our respective shares in the properties. After F
08.03.1981 the common properties were not in joint possession
and common enjoyment of all...”
89. Further in his cross-examination on 11.08.1997, D-2 further
stated: -
G
“...I had stated that division of all properties was done in 1981.
The arrangement that was decided in 1981 was implemented in
1984 under the decree. Nothing new was done. As per the
arrangement decided in March, 1981, Vasudev Mill having 16 acres
of land and buildings and the machineries belonging to the mill
were allotted to the branch of my elder brother...” H
382 SUPREME COURT REPORTS [2021] 6 S.C.R.

A The trial court in its judgment dated 30.09.1997 in paragraph 28
held:-
“28....the agreement that had been executed on 08.03.1981 is
genuine and it is clear that it has come into force and that the
shares which were more or less raised afresh were given to the
B plaintiff branch and that after the year 1981, the family of the 1st
defendant, had relieved themselves from Swamy & Co.,
Rangasamy Brothers. Swamy Textiles, Rengavilas Warfing &
Sizing Factory and that it had been proved through the oral evidence
and the documentary proof and that through the Ex.A12 document,
the plaintiff and the 10th defendant were in the management of
C the mill and the same had been clearly proved and that after
08.03.81, the 1st defendant had obtained the right in the estate and
that it is clearly proved through Ex.B67 and that it is the stock
register maintained in the Sciefield Tea Factory and that it would
reveal that till March, 1981 and 10th defendant had signed in the
D register and that thereafter the 1st defendant had signed in the
same is clearly revealed, in the Ex.B68, 69 gate pass also it is
found as above and that from this, it is clearly revealed that after
the 1981, the above said agreement was brought into force and
that it is proved clearly and that it had been indicated on the side
of the plaintiff that it is incorrect to state that the property at
E Coonoor, Veerakeralam is in the custody of the 1st defendant and
the properties at Somanur are lying with the 4th defendant and
that the plaintiff had accepted in the evidence that he had not
managed the property at Coonoor, and that from this it is clearly
revealed that the above said agreement was brought into force.”
F 90. Further in paragraph 159, the trial court again held that
agreement of the year 1981 is genuine and it was brought into force and
the argument of DW-1 is found to be acceptable.
91. The agreement dated 08.03.1981 was denied by the plaintiff.
The plaintiff’s case was that at no point of time, there was any agreement
G entered between parties in the year 1981 to divide the properties standing
in the names of three branches. The agreement dated 08.03.1981 was
not filed by D-1 in the evidence. The agreement was not filed nor exhibited
by the defendant, D-1.
92. In the written statement which was filed by D-1 in O.S. No.37
H of 1984, no plea was taken regarding agreement dated 08.03.1981. It
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 383
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

was for the first time in the written statement filed by D-1 in suit No.1101 A
of 1987 that mention of agreement dated 08.03.1981 was made. Neither
any agreement dated 08.03.1981 was filed or proved nor there is any
other evidence on record to prove the division of properties between
three branches in the year 1981.
93. It is the case of the defendant No.1 that the compromise B
decree dated 06.08.1984 is nothing but implementation of agreement
dated 08.03.1981. It is, thus, clear that the case of D-1 is that there was
partition of all properties standing in the names of three branches and
allocated to different branches on 08.03.1981, which has been
subsequently implemented by consent decree dated 06.08.1984. As per
the case of defendant, the Vasudeva Textiles Mills was given to the C
branch of Rangasamy, property at Coonoor was taken by D1 and
properties at Somnur by D-4.
94. When the D-1 comes with the case that there was partition
on 08.03.1981 of all immovable properties standing in the names of three
branches, which was implemented on 06.08.1984, the conclusion is D
irresistible that family was joint and had the three branches were not
part of joint Hindu family, there was no occasion for attempting any
partition on 08.03.1981 as claimed by D-1. The fact that defendant No.1
is coming with the case that there was partition on 18.03.1981 itself
proves that three branches were joint till then as per case of D-1 himself. E
95. It is to be noted that 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.
96. Thus, in the year 1979 when residential property of Tatabad F
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.
97. Both the Courts below although accepted the partition dated
18.03.1981 as pleaded by D-1 but erred in not considering the G
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. 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.
H
384 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 98. Both the trial court and High Court have given much emphasis
on the fact that three branches were filing separate Income-Tax Returns
and Wealth Tax Returns after 1967. An individual member of joint Hindu
Family can very well file his separate Returns both under the Income
Tax Act as well as Wealth Tax Act and filing of such Returns was not
conclusive of status of the family. The plaintiff’s case throughout was
B
that family continued to be joint after 07.11.1960 and D-1 who alone had
filed the written statement and appeared in the witness box having come
with the case of partition on 08.03.1981 which he claims to be implemented
on 06.08.1984 by Compromise Decree, it is proved that family was joint
at least till then, i.e., 08.03.1981 or 06.08.1984. Thus, in the year 1979,
C when the Tatabad residential property was acquired, the three branches
were joint.
99. The Tatabad residential property was for the benefit of all the
three branches which is further proved from the fact that the consideration
for the said amount was not paid by DW-1 from his separate account or
D in cash. The amount was drawn from the private limited company Swamy
and Swamy Plantation Private Limited in which all the three branches
were shareholders and Directors. The Swamy and Swamy Plantation
Company had not purchased the residential property at Tatabad for the
company. The Swamy and Swamy plantation private company is not the
owner of the residential property and the residential property at Tatabad
E is a joint family property for the benefit of all the three branches.
100. We thus conclude that all three branches have equal share in
the Tatabad residential property, i.e., Item No.X of Schedule ‘B’ of plaint
in Original Suit No.1101 of 1987. This residential property being not a
part of O.S.No.37 of 1984, there is no bar in seeking partition of the said
F property by the plaintiff. Accordingly we declare that plaintiff/defendant
No.7, defendant No.1 and defendant No.4 are entitled to 1/3rd share
jointly in the aforesaid Item No.X of Schedule ‘B’ of the suit property (
1/3rd share each to K. Rangasamy branch, S.K. Kumarasamy branch
and S.K. Chinnasamy branch). Accordingly, a preliminary decree for
G partition shall be drawn for the aforesaid property.
101. Civil Appeal No.1537 of 2016 and Civil Appeal No.1538 of
2016 are partly allowed. Consequently, the Original Suit No.1101 of 1987
stands decreed to the extent indicated above, by granting a decree of
partition of Item No.X of Schedule ‘B’, i.e., “In Coimbatore Registration
H on District, Coimbatore Corporation Limits, Tatabad, Dr. Alagappa
R. JANAKIAMMAL v. S.K. KUMARASAMY(DECEASED) THROUGH 385
LEGAL REPRESENTATIVES [ASHOK BHUSHAN, J.]

Chettiar Road, D.No.101, Extent 0.33 acres with 4500 sq.ft. built-up A
residential building.”
102. Parties are at liberty to make an application before the trial
court for passing an appropriate final decree and such application is to
be disposed of by the trial court in accordance with law.
103. Parties shall bear their own costs. B

Devika Gujral Appeals partly allowed.

C

D

E

F

G

H