Haridas Mafatlal Gagalbhai vs Vijayalakshmi Navinchandra Mafatlal Gagalbhai.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1956 Supreme(Bom) 84

IN THE HIGH COURT OF BOMBAY
Coyajee, J.
Appellants: Haridas Mafatlal Gagalbhai
Vs.
Respondent: Vijayalakshmi Navinchandra Mafatlal Gagalbhai and Ors.
Suit No. 1072 of 1951
Decided On: 07.08.1956
Counsels:
For Appellant/Petitioner/Plaintiff: Purshottam, Dave and Pradhan, Advs.
For Respondents/Defendant: Attorney General, Manekshaw and Bhagwati, Advs.

Headnote:
ELECTION - Compromise and Release - Plaintiff withdrawing moneys deposited under compromise with knowledge of pending suit challenging compromise - Plaintiff precluded from challenging compromise and release in suit.
Fact of the Case:

Plaintiff, as the next friend of the illegitimate son of Mafatlal Gagalbhai, filed a suit for partition of Mafatlal's estate. The plaintiff's mother, Sushilabai, had entered into a compromise with Mafatlal's heirs, accepting a sum of Rs. 4,10,000/- in full settlement of the plaintiff's claim and releasing the estate from any further claims. The plaintiff, upon attaining majority, withdrew the moneys deposited under the compromise with knowledge of the pending suit challenging the compromise. The defendants contended that the plaintiff, by withdrawing the moneys, had elected to accept the compromise and was precluded from challenging it in the suit.
Finding of the Court:

The court held that the plaintiff, by withdrawing the moneys deposited under the compromise with knowledge of the pending suit challenging the compromise, had elected to accept the compromise and was precluded from challenging it in the suit. The court observed that the plaintiff was aware of the two existing rights, one under the compromise and the other under the suit, and that his act of withdrawing the moneys amounted to an unequivocal affirmation of the compromise, which barred him from subsequently disaffirming it.
Issues: Whether by reason of the facts and submissions set out in paras 3A and 3B of the written statement of the original defendants 1 to 8 the plaintiff is precluded from challenging the order dated 2-2-1945, the compromise effected under the said Order and the deed of release dated 23-3-1945.
Ratio Decidendi: The court applied the principle of election, which precludes a party from affirming and disaffirming the same transaction, to hold that the plaintiff's act of withdrawing the moneys deposited under the compromise, with knowledge of the pending suit challenging the compromise, amounted to an election to accept the compromise and barred him from subsequently challenging it in the suit. The court reasoned that the plaintiff had two inconsistent courses of action available to him, either to accept the compromise and withdraw the moneys or to challenge the compromise in the suit, and that by choosing one course, he was precluded from pursuing the other.
Final Decision: The court answered the preliminary issue in the affirmative, holding that the plaintiff was precluded from challenging the compromise and release in the suit. Consequently, the suit was dismissed with costs.

JUDGMENT

1. This suit was filed on behalf of the plaintiff by his next friend during the minority of the plaintiff on 15-9-1951 for a partition of the estate of Mufatlal Gagalbhai on the ground that the plaintiff was the illegitimate son of the said Mafatlal by defendant 7 Sushilabai. It is alleged that Mafatlal was a Shudra by caste and was a kadwa Patidar and that the mother the plaintiff, defendant 7 is also a Shudra. The deceased Mafatlal died as far back as 19-7-1944.

It is said that the deceased was introduced to Sushilabai sometime in 1925 who was at that time a widow, and that from the year 1927 for a continuous period of 17 years Sushilabai was in Mafat-fals continuous and exclusive keeping as a permanent concubine. Defendant 8 is a daughter of the said Mafatlal by Sushilabai. It is alleged further that the plaintiff was born to Sushilabai in 1931 and the daughter was born in 1939.

It is contended that the plaintiff as the illegitimate son of the deceased is entitled to a share out of the estate of the deceased namely half the share which he would have received had he been a legitimate son of the deceased and therefore he is entitled to a partition of the estate on that footing.

2. In para 7 of the plaint it is stated that defendant 7, Sushilabai, made certain claims against the estate of Mafatlal in the year 1944 claiming maintenance as the Avarudha Stree of Mafatlal and also made a claim to a share in the estate on behalf of the plaintiff who was at that time a minor. The plaintiff avers that such claims having been raised through certain attorneys a compromise was arrived at by his mother Sushilabai and the two claims were treated as parts of one transaction and Sushilabai out of anxiety to secure her own maintenance in the form of a lump sum payment sacrificed the interests of the plaintiff by accepting a sum of Rs. 4,10,000/- on behalf of the plaintiff and a sum of Rs. 4,00,000/- as lump sum maintenance for herself.

It is alleged that in pursuance of that compromise Sushilabai presented a partition on 31-1-1945 in the High Court and obtained a Judges order and sanction to the said compromise on 2-2-1945 and thereupon on 23-3-1945 a release was executed by defendant 7 the mother in favour of Navinchandra the son and the other heirs of Mafatlal.

3. It is stated that the sum of Rs. 4,10,000/- paid and accepted by Sushilabai on behalf of the plaintiff was entirely out of proportion to the estate left by Mafatlal which according to the estate left by Mafatlal which according to the information of the plaintiff was worth about thirty crores of rupees.

It is alleged that the said petition was made and the said order of the Court was obtained and the release executed as a resultof collusion between defendant 7 Sushilabai and the original first defendant and the other parties interested in the estate, that the petition contained a number of statements which are on the face of them incorrect and that the sanction of the Court on the said partition was obtained on incorrect and misleading statements on material facts.

4. The material facts are set out as follows: It was falsely and wrongly stated by Sushilabai that she had difficulty to find evidence to prove that the plaintiff was the son of the deceased. That the question whether Mafatlal was a Shudra was a question that had to be litigated upto the Privy Council incurring enormous costs.

That the original first defendant had refused to state the extent of the estate and it was wrong, to state in the petition that Sushilabai had no interest directly or indirectly adverse to that of the minor. It is contended that her interest was definitely adverse to the- interest of the minor inasmuch as she was threatened- that she would not be given any maintenance and would not be entitled, to any maintenance unless she compromised the claim of the plaintiff and that she was induced to accept this figure of Rs. 4,10,000/- by the fact that she was allowed Rs. 4,00,000/- in lump sum for her mai

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