G.V. Seethapathy, J.
1. This appeal is preferred against the judgment and decree dated 9-2-1999 in O.S. No. 16 of 1992 on the file of the Senior Civil Judge, Gooty, wherein the suit filed by the appellants-plaintiffs for declaration of title, delivery of possession of the plaint schedule property and for mesne profits, was dismissed.
2. The appellants herein filed O.S. No. 16 of 1992 against the respondents herein, with the following averments:
The plaintiffs are the sons of T. Ekambara Naidu. Their mother, Rangamma, is the daughter of Pedda Nagaiah. Pedda Nagaiah and his brother Chinna Nagaiah, got divided their properties. China Nagaiah died issueless leaving behind his wife Chinna Vemakka in the year 1938 or 1939. The suit schedule property belongs to Chinna Nagaiah. After his death, his widow Vemakka became entitled to the property as limited owner. The plaintiffs being the only surviving reversioners to the estate of Chinna Nagaiah, became entitled to the suit schedule property. The defendants 1 and 2 are brothers; defendants 3 and 4 are the sons of first defendant. Chinna Vemakka, is the sister of defendants 1 and 2. The defendants have absolutely no right, title or interest to the suit property. The defendants 1 and 2 claimed to have obtained relinquishment deed dated 17-10-1940 from Chinna Vemakka, who was only limited interest owner, she had absolutely no competency to relinquish her rights in the suit property. The alleged relinquishment deed is neither true nor valid or binding on the plaintiffs. Chinna Vemakka died on 25-1-1989 and relinquishment deed became ineffective and the reversion to the estate of Chinna Nagaiah opened, and the plaintiffs being nearest reversioners, succeeded to the suit property. The defendants are not the reversioners to the estate of Chinna Nagaiah and their possession under the guise of injunction is illegal. The 3rd defendant claiming to be the Manager of Hindu joint family of himself and the defendant filed O.S. No. 130 of 1989 on the file of District Munsif Court, Guntakal for injunction and obtained temporary injunction. The defendants are not entitled to continue in possession, as they have no title to the suit property. The defendants are also liable for mesne profits from the year 1989 till the delivery of possession. Plaintiffs, therefore, prayed for declaration of their title and for delivery of possession and for ascertainment of mesne profits.
3. The 3rd defendant filed written statement, which was adopted by the fourth defendant by filing a memo, contending in brief as follows:
The relationship as set out in the plaint is false, Rangamma, mother of the plaintiffs had nothing to do with Chinna Nagaiah. The plaintiffs are not reversioners to the estate of Chinna Nagaiah. The relinquishment deed said to have been executed by China Vemakka on 17-10-1940 is not to the knowledge of the defendants. In spite of relinquishment deed, Chinna Vemakka was in possession and enjoyment of the plaint schedule property, till her death. She was staying with her brothers-defendants 1 and 2 who were helping and assisting her in cultivation of the lands. Even if Chinna Vemakka has executed any relinquishment deed as stated in the plaint; the same will not create rights in favour of the defendants 1 and 2. Chinna Venakka died in the year 1989 after Hindu Succession Act 1956 came into operation. Chinna Vemakka acquired absolute rights in the property by virtue of Section 14(1) of Hindu Succession Act. Chinna Vemakka executed a Will on 20-1-1988 bequeathing plaint schedule properties in favour of 4th defendant-Bheema Naidu. After the death of Vemakka, the Will came into effect and 4th defendant became the owner of the suit property. By virtue of Section 14(1) of Hindu Succession Act. Chinna Vemakka has every right to dispose of the property in the manner she thought fit.
4. The 3rd defendant filed amended written statement contending further as follows : The plaintiffs, when they were minors, filed O.S. No. 528 of 1941 on the file of District Munsif Court, Gooty through their father and natural guardian against M. Ramappa and his two brother Chinnappa and Nagalingappa, and Chinna Vemakka for declaration that the relinquishment deed executed by Chinna Vemakka in favour of her brothers, is not binding on the plaintiffs, and after life time of Chinna Vemakka, they being reversioners. During the stage of trial, a compromise was effected and accordingly on 11-3-1942 a compromise decree was passed. As per the terms of the compromise, the suit lands in Sy. Nos. 161 and 162(C) of Guntakal Kottala Village, were given to the defendants 1 to 3 in OS No. 528 of 1941 with absolute rights and the lands in Sy. Nos. 715-A and 716-B of Chippagiri were given to the plaintiffs in the said suit with absolute rights. Ever since, the parties are enjoying the properties allotted to their shares as per the terms of the compromise. The said compromise was bona fide and binding on the plaintiffs. The judgment and decree in OS No. 528 of 1941 operates as res judicata and the plaintiffs cannot again agitate for the self same property in the present suit. Further by enjoying the suit properties in their own right for more than 40 years openly and as of right without any obstruction, the defendants have perfected their title to the suit property by adverse possession also.
5. After the amended written statement was filed, the plaintiffs filed a rejoinder contending that the previous litigation has no relevancy and any arrangement alleged to have taken place during the life time of limited owner is of no consequence and it does not affect the rights of the parties and the alleged compromise even if true, contemplates the execution of certain documents, but no such documents were ever executed and so the compromise decree never became effective or enforceable. Even otherwise, the position of limited owner in the year 1942 never gave any rights to her to enter into compromise and the alleged compromise, even if true, is void and invalid and has no legal sanctity. There cannot be any adverse possession during the lifetime of the limited owner.
The suit against the defendants 1 and 2 was dismissed.
6. On the strength of the pleadings, the following issues and additional issues were settled by the trial Court.
(1) Whether the plaintiffs are the only surviving reversioners to the estate left behind by late Chinna Nagaiah?
(2) Whether the relinquishment deed executed by Chinna Vemakka on 17-10-1940 is true?
(3) Whether plaintiffs have right in the suit property as per the Hindu Succession Act came into force?
(4) Whether plaintiffs are entitled to declaration of title as per the Hindu Succession Act came into force?
(5) Whether plaintiffs are entitled to mesne profits?
(6) To what relief
Additional issues framed on 13-4-1998:
(1) Whether decree and judgment OS No. 528/41 on the file of D.M.C., Gooty is bona fide one and if so, it is binding on the plaintiffs herein?
(2) Whether the decree and judgment in OS No. 528/41 operates as res judicata to the present suit?
(3) Whether the defendants perfected their right and title over the suit schedule property by adverse possession?
7. PWs. 1 and 2 were examined on plaintiffs' side and 3rd defendant was examined as D.W. 1. No documents were marked on behalf of the plaintiffs. Exs. B.1 to B.6 were marked on behalf of the defendants.
8. On a consideration of evidence on record, the trial Court held on Additional Issue Nos. 1 and 2 that the decree and judgment in OS No. 528 of 1941 is binding on the plaintiffs and it operates as res judicata; on Issue No. 2, the trial Court held that the relinquishment deed Ex. A.1 dated 17-10-1940 is true; on Issue Nos. 1 and 3, the trial Court held that in view of the compromise decree in OS No. 528/41, which is binding on the plaintiffs, they are not entitled to claim any rights in the suit property as reversioners; on Additional Issue No. 3, the trial Court held that the defendants have perfected their title by adverse possession also. Consequently on Issue Nos. 4 and 5, the trial Court held that the plaintiffs are not entitled for the relief of declaration of title or for recovery of possession or for mesne-profits.
9. Aggrieved by the said judgment and decree, the present appeal is filed by the plaintiffs in OS No. 16 of 1992.
10. The appellants-plaintiffs herein filed O.S. No. 16 of 1992 and the respondents-defendants herein filed suit OS No. 92 of 1992 for injunction in respect of self same property. Both the suits were tried together and disposed of by a common judgment dated 9-2-1999 by the trial Court, dismissing the suit OS No. 16 of 1992 filed by the appellants-plaintiffs and decreeing the suit OS No. 92 of 1992 filed by the respondents herein. The present appeal is filed by the plaintiffs in OS No. 16 of 1992.
11. Arguments of the learned Counsel for the appellants and respondents are heard. Records are perused.
12. Learned Counsel for the appellants mainly contended that the compromise effected in OS No. 528 of 1941 during the minority of the plaintiffs, is not binding on them, unless they elect the same and there is no evidence to show that the plaintiffs enjoyed the lands at Chippagiri with the knowledge of the compromise and thereby they ratified the compromise. He further contended that the cause of action for the plaintiffs arose only on the death of Chinna Vemaka in 1989 when their rights crystalized and immediately, thereafter, they filed the suit, and the alleged compromise in OS No. 528 of 1941 is not binding on the plaintiffs.
13. Learned Counsel for the respondents on the other hand contended that the plaintiffs have been in possession and enjoyment of the lands at Chippagiri, which they got under the compromise in OS No. 528 of 1941 for the past forty years. They never questioned the said compromise decree all these years and by such conduct, they elected to stand by the compromise decree, as otherwise, they would have come in possession of Chippagiri lands only in 1989 after the death of Chinna Vemakka, even according to them. He further contended that having enjoyed the fruits of compromise decree for such a long period of over forty years, it is not open for the plaintiffs now to turn around and claim rights over the suit lands which fell to the share of the defendants under the very same compromise decree. He further contended that the decree in OS No. 528 of 1941 operates as res judicata in the present suit.
14. The admitted facts as borne out by the pleadings and also evidence can briefly be stated thus:
One Pedda Nagaiah and Chinna Nagaiah are the brothers and they got divided. Rangamma is the only daughter of Pedda Nagaiah. The appellants-plaintiffs are the sons of Rangamma and Ekambara Naidu. Chinna Nagaiah died issueless in or around 1938 leaving behind his widow China Vemakka. After the death of China Nagaiah, his widow Chinna Vemakka came into possession and enjoyment of his estate as a limited owner. The estate comprised an extent of Ac. 1.69 cents in Sy. Nos. 161 and Ac. 7.11 cents in S. No. 162-C, totaling Ac. 8.80 cents in Guntakal Kottala Village and Ac. 4.74 cents in Sy. No. 715-A and Ac. 4.55 cents in Sy. No. 716-B, totaling Ac. 9.29 cents in Chippagiri Village. The lands situated in Guntakal Kottala Village are the subject-matter of the present suit and the appeal. The defendants 1 and 2 are brothers of Chinna Vemakka. Defendants 3 and 4 are the sons of first defendant. Chinna Vemakka died on 25-1-1989 while residing at Chippagiri Village. The above facts are not in dispute.
15. The contention of the plaintiffs is that they are reversioners of China Nagaiah, who had no issues and so, after the death of China Vemakka in 1989, they became entitled to her lands situated at Chippagiri Village and also Guntakal Kottala Village. According to them, China Vemakka was only a limited owner and the moment she died, reversion to the estate of China Nagaiah opened and the plaintiffs being the nearest reversioners became entitled to the property. It is also pleaded in the plaint that the defendants 1 and 2 claimed to have obtained a relinquishment deed dated 17-10-1940 from Chinna Vemakka and if at all, China Vemakka could have relinquished only her limited rights and the moment she died, the relinquishment deed became ineffective. The defendants, on the other hand, contend that the relinquishment deed Ex. B.1 was the subject-matter of the litigation in OS No. 528 of 1941 filed by the plaintiffs, through their father-guardian, questioning the validity of the said document and on the intervention of the elders, the matter was compromised and compromise decree was passed under Ex. B.5. The plaint is totally silent about the filing of the earlier suit OS No. 528 of 1941. Of course, originally the written statement also did not make a mention of it, but subsequently, the defendants were permitted to amend the written statement, for which the plaintiffs also filed a re-joinder alleging that the compromise in OS No. 528/41 is not binding on them.
16. In view of the rival contentions of the parties, the foremost question, which arises for consideration, is whether the compromise decree in OS No. 528 of 1941 is valid and binding on the plaintiffs herein and it operates as res judicata?
17. Ex. B.5 is the certified copy of decree and Ex. B.6 is the certified copy of the suit register extract in OS No. 528 of 1941. Ex. B.5 shows that OS No. 528 of 1941 was filed by the appellants herein represented by their father-next friend for declaration that the relinquishment deed Ex. B.1 dated 17-10-1940 executed by China Vemakka, who was 4th defendant in that suit, in favour of defendants 1 and 2 and their other brother Chinnappa (who were defendants 1 to 3 in that suit) does not bind the appellants herein, after the life time of Chinna Vemakka, as the appellants herein are the reversioners in respect of the suit properties. The schedule appended to Ex. B.5 describes the two items of land in Guntakal Kottala Village and the total extent is Ac. 8.80 cents and the two items of land at Chippagiri is an extent of Ac. 9.28 cents. As per the terms of the compromise recorded under Ex. B.5, it was agreed that the defendants in that suit (respondents herein) agreed to give up the lands at Chippagiri in favour of the plaintiffs (appellants herein) and delivered possession of the same at once as they have paid Rs. 120/- on the date of compromise. It was further agreed that in default of delivery of possession, the plaintiffs have to execute the decree and recover the possession of the lands at Chippagiri through Court. It was also agreed under the compromise that the defendants shall be in possession and enjoyment of the lands at Guntakal Kottala Village. It was further agreed that whenever required the parties shall execute the necessary documents in favour of each other. It is not disputed that ever since the compromise decree passed in 1942, the appellants have been in possession and enjoyment of the lands at Chippagiri and the respondents were in possession and enjoyment of the suit lands at Guntakal Kottala Village. There was no necessity or occasion to put the compromise decree into execution, inasmuch as the possession of the respective lands was delivered to the respective parties and accordingly, they have been in separate enjoyment of the same.
18. Learned Counsel for the appellants contended that the compromise decree contemplates execution of a sale deed and a relinquishment deed at a future date but since no such documents were executed it cannot be said that the compromise was acted upon. It is to be noted that clause-5 of the compromise decree under Ex. B.5 contemplates the execution of sale deed and relinquishment deed among the parties only whenever required. Inasmuch as, the parties have been in separate possession and enjoyment of the respective items of the lands, which they got under the compromise, there was no occasion to demand the execution of the sale deed and relinquishment deed. That the parties were in separate possession and enjoyment of respective lands is borne out by the evidence on record. PW. 1 admitted that they were in possession of lands at Chippagiri, but he does not know the survey numbers. When specifically questioned about the possession of the lands in Sy. Nos. 715-A and 716-B to an extent of Ac. 9.28 cents, PW. 1 evasively stated that he does not know. The evidence of P.W. 1 is only to the effect of pleading ignorance about the execution of relinquishment deed Ex. B.1 by China Vemakka in favour of the defendants and filing of suit OS No. 528 of 1941 by him and his brothers through their father questioning the validity of the relinquishment deed. He also pleads ignorance of the terms of the compromise. PW. 1 admitted that his father Ekambara Naidu was the natural guardian for himself and his brother and they had no disputes with their father. Ex. B.5 shows that the appellants' father Ekambara Naidu obtained permission of the Court to enter into compromise on behalf of the minor sons by filing I.A. No. 152 of 1942 and the Court accorded permission, obviously on being satisfied that the compromise was beneficial to the interest of the minors. Neither the plaintiffs, nor their father, ever questioned the compromise decree on the ground that it was vitiated by any fraud, coercion or undue influence. PW. 1 categorically admitted in further cross-examination on subsequent date that the first plaintiff was in possession of Ac. 4.74 cents in Sy. No. 715-A and Ac. 4.55 cents in Sy. No. 716-B of Chippagiri Village. He claims that the said properties were allotted to the first plaintiff in family partition. He does not know whether the said lands originally belonged to China Vemakka. The evidence of PW.2, who is none-else than the brother-in-law of the plaintiff is equally evasive as he says that he does not know whether the plaintiffs were in possession of the lands in Chippagiri. On the other hand, apart from testifying as DW. 1, the 3rd defendant filed Ex. B.2 certified copy of 10(1) account, Ex. B.3 certified copy of Diglot, Ex. B.4 certified copy of No. 2 account, which show that the suit lands in Gunthakal Kottala Village were registered in the name of his father-first defendant in the revenue accounts. As against the evasive evidence of PW. 1 as to how he came into possession and enjoyment of Chippagiri lands if it were not to be under the compromise decree, the evidence of DW. 1 coupled with Exs.B.2 to B.4 establishes that the suit lands in Gunthakal Kottala Village were in possession of defendants. The evidence on record, therefore, establishes that when China Vemakka executed relinquishment deed - Ex.B.1 in respect of the lands at Chippagiri and Guntakal Kottala in favour of the defendants 1 and 2, the plaintiffs questioned the validity of the same by filing suit OS No. 548 of 1941 through their father-next friend and the matter ended in a compromise decree Ex. B.5 after the plaintiffs' father duly obtained the permission of the Court to enter into compromise on behalf of the minors that it was beneficial to the interest of the minors and in accordance with the terms of the compromise decree, the plaintiffs have been in possession and enjoyment of the lands at Chippagiri and the defendants have been in possession and enjoyment of the suit lands at Gunthakal Kottala Village. If the compromise decree was not acted upon as sought to be contended by the plaintiffs, there was absolutely no occasion for them to come into possession of the lands at Chippagiri Village, because, even according to them, they are entitled to the lands only after the death of Chinna Vemakka in 1989. Even the prayer in the suit OS No. 528/41 as can be seen from Ex. B.5 is to declare that the relinquishment deed was not binding on the plaintiffs after the life time of 4th defendant therein i.e., China Vemakka. The very claim of the plaintiffs is that it was only as reversioners they became entitled to the property on the death of China Vemakka in 1989. If that is so, there is absolutely no explanation on their part as to how they came into possession of the lands, even prior to the death of China Vemakka and how they have been in enjoyment of the same since 1942. The evidence of PW. 1 goes to show that in the family partition between himself and his brothers, the lands at Chippagiri Village covered by Sy. Nos. 715-A and 716-B were allotted to the share of first plaintiff. Significantly, the first plaintiff is not examined and it was only the 2nd plaintiff who gave evidence as PW. 1. Thus, it is clear that the compromise decree in OS No. 528/41 was duly acted upon by all the parties and in accordance with the terms thereof they have been in separate possession and enjoyment of the respective lands allotted to them and in the partition among the plaintiffs inter se, the lands at Chippagiri got under the compromise decree were allotted to the share of the first plaintiff. Having thus elected to abide by the terms of the compromise decree and ratified the same by their conduct, the plaintiffs are not estopped from contending that the compromise decree is not binding on them.
19. It is established principle that where a widow or other limited heir enters into a compromise involving alienation of an estate, the reversioner who has been a party to and has benefited by the transaction is precluded from questioning the alienation; and so are his descendants. Thus where a reversioner is a party to the compromise and obtained property under the compromise is precluded from repudiating the compromise and from claiming as a reversioner. When the reversioner has elected to assent to the transaction and received benefit under it, he would be precluded from questioning the transaction. Where a widow in possession of her husband's estate enters into a compromise of a claim made by the next reversioner and the compromise is prudent and reasonable, it is binding on the estate and whole body of the reversioners.
20. In Shanmugam Pillai and Ors. v. K. Shanmugam Pillai and Ors. : [1973]1SCR570 , the apex Court held as under:
There are three classes of estoppels that may arise for consideration in dealing with reversioner's challenge to a widow's alienation. They are : (1) that which is embodied in Section 115 of the Evidence Act, (2) election in the strict sense of the term whereby the person electing takes a benefit under the transaction and (3) ratification i.e., agreeing to abide by the transaction. A presumptive reversioner coming under any one of the aforesaid categories is precluded from questioning the transaction, when succession opens and when he becomes the actual reversioner. But if the presumptive reversioner is a minor at the time he has taken a benefit under the transaction, the principle of estoppel will be controlled by another rule governing the law of minors. If after attaining majority he ratifies the transaction and accepts the benefit thereunder, there cannot be any difference in the application of the principle of election. The effect would be the same. It may be that on attaining majority he has the option to disown the transaction and disgorge the benefit or to accept it and adopt it as his own. Whether after attaining majority the quondam minor accepted the benefit or disowned it, is a question to be decided on the facts of each case.
21. In the present case also the plaintiffs though minors at the time of filing of OS No. 528/41 and so represented by their father in the said suit, they have subsequently by their conduct in not questioning the compromise decree at any time and on the other hand by being in separate possession and enjoyment of respective items of the lands got under the compromise decree, have elected to abide by the same and duly ratified the said compromise. Even after attaining the majority, the plaintiffs never questioned the compromise decree by issuing any notice to the defendants or to China Vemakka.
22. The contention of the learned Counsel for the appellants that it was only after the death of Chinna Vemakka that the plaintiffs had occasion to raise a dispute and so, their inaction prior to death of China Vemakka is of no consequence, cannot be accepted for the reason that it is not a case of alienation by the widow China Vemakka in favour of third party, which the plaintiffs could ignore, but it is a case where the plaintiffs themselves were the parties to the compromise decree through their father as their guardian. As already stated, admittedly there were no disputes between the plaintiffs and their father. It is not the case of the plaintiffs that the compromise was vitiated by fraud, mis-representation or undue influence and they never questioned the compromise decree on any those grounds all these years even after attaining the majority. The conduct of the plaintiffs under the circumstances, particularly their separate possession and enjoyment of Chippagiri lands for such a long period of more than forty years clearly amounts to ratification of the transaction contained under the compromise decree having accepted the benefit arising therein and enjoyed the same for over forty years. They never exercised option of disowning the transaction after attaining the majority. In view of the principles laid down in the above decision and the factual matrix of the present case as borne out by the evidence on record, it must be held that the plaintiffs have accepted the compromise decree ratified the same and by virtue of doctrine of election, they are now estopped from contending to the contra.
23. Learned Counsel for the respondents further contended that the decree in OS No. 528/41 operates as res judicata, in the present suit, notwithstanding the fact that it was a compromise decree.
24. In Shankar Sitaram Sontakke and Anr. v. Balkrishna Sitaram Sontakke and Ors. : [1955]1SCR99 , the Apex Court held as under:
A consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, mis-understanding or mistake, the decree passed thereon had the binding force of res judicata and the plaintiff was barred from reagitating the question of accounts in a fresh suit.
25. In Sailendra Narayan Bhanj Deo v. The State of Orissa : [1956]1SCR72 , the Supreme Court held as under:
A judgment by consent or default is an effective an estoppel between the parties as a judgment whereby the Court exercises its mind on a contested case.
26. Following the above decisions, the High Court of Andhra Pradesh in Indira Bai Patel v. B.A. Patel : AIR1974AP303 , held as follows:
The compromise decree had the binding force of res judicata and the plaintiff is bared from reagitating her claim for partition and possession of her share in the family properties and for accounts from the defendant in respect of the income from the suit properties. That apart, a judgment by consent or default is as effective an estoppel between the parries as a judgment obtained from the Court after due contest on merits. Hence, the consent decree operates as estoppel by judgment.
27. In the present case also there is nothing on record to show that the earlier compromise decree is vitiated by fraud, misrepresentation, misunderstanding or mistake and so, the consent decree has binding force of res judicata and the plaintiffs are barred from reagitating the same question again.
28. In Krishna Beharilal v. Gulabchand : AIR1971SC1041 , the apex Court held as under:
Thus where under a compromise the presumptive reversioners purported to give a portion of the suit properties absolutely to the widow in consideration of her giving up her claim in respect of the other properties, they would be estopped from contending that they are entitled to succeed to the properties given to the widow.
29. In view of the above legal position, the contention of the learned Counsel for the appellants that the compromise decree in OS No. 528 of 1941 is not binding on the plaintiffs and still they are entitled to succeed to the estate of Chinna Nagayya as reversioners cannot be accepted. The compromise decree in OS No. 528 of 1941 is not only valid and binding on the plaintiffs but also operates as res judicata. The plaintiffs are further estopped from claiming any rights in the suit property they having elected to abide by the terms of the compromise decree and having ratified the same by being in separate possession and enjoyment of the lands at Chippagiri, which they got under the very same compromise decree for nearly 50 years. The plaintiffs are, therefore, not entitled for declaration of title in respect of the suit lands or for recovery of possession thereof or for mesne profits. The judgment and decree dated 9-2-1999 in O.S. No. 16 of 1992 on the file of the Court of Senior Civil Judge, Gooty dismissing the suit, are therefore, held not liable to be set aside.
30. In the result, the appeal is dismissed with costs.