A compromise decree cannot deprive a party of their inheritance rights when they were not a party to the compromise.

Heard Ms. P. Bhattacharya, learned counsel for the appellant. None appears for the plaintiff-respondent No. 1 as well as for pro forma respondent No. 2. Mr. D. Choudhury, learned counsel appears for pro forma respondent No. 3.

2. This Second Appeal is preferred against the judgment and decree dated 19.07.2004 passed by the learned Civil Judge (Senior Division), Jorhat, in Title Appeal No. 19/02, dismissing the appeal of the present appellant and upholding the judgment and decree dated 02.05.2001 passed by the learned Civil Judge, Junior Division No. 1, Jorhat, in Title Suit No. 23/2000, decreeing the suit of the plaintiff.

3. This appeal was admitted to be heard vide order dated 13.10.2004 on the following substantial question of law:-

“Whether the compromise decree between the brothers can deprive the defendant from claiming the right of inheritance when she was not a party to the compromise?”

4. In order to understand the significance of the above-referred substantial question of law, it is necessary to traverse a little back into the past. One Jainul Hussain, admittedly left behind the appellant, pro forma respondent Nos. 2 and 3 as his daughter and sons, respectively. There was some question mark with regard to the parentage of the plaintiff of the suit. In fact, the pro forma respondent No. 1 had filed a suit, registered as T.S. No. 57/96, in the Court of the learned Munsiff No. 1, at Jorhat, praying for a declaration that the present plaintiff, not being the son of Jainul Hussain and Musst. Mazirun Nessa, cannot claim the share of land measuring 5½ Lecha and also that the plaintiff had acquired no manner of right of inheritance in respect of the land described in Schedule-A to the plaint. Schedule-A refers to a plot of land measuring 16½ Lecha, which is also incidentally identified in the present suit filed by the plaintiff as Schedule-A.

5. The present appellant was arrayed in Title Suit No. 57/96 as pro forma respondent No. 3. Averments were made in the said suit that the present appellant was a daughter of Late Jainul Hussain. The present appellant did not contest the said suit. In fact, going by the pleadings, no relief was sought against the present appellant.

6. The aforesaid suit came to be decreed on compromise vide an order passed on 21.07.98 on the basis of a compromise petition filed by the plaintiff of Title Suit No. 57/96 and the defendant No. 1 (plaintiff of Title Suit No. 23/2000). The compromise petition reads as follows:-

“IN THE COURT OF THE CIVIL JUDGE (JR. DIVISION) NO. 1, JORHAT.

Dated Jorhat the 21st July, 1998.

Atul Hussain - Plaintiff

Vs

Amirul Hussain - Defendant

For both the plaintiff and the defendant No. 1.

Most respectively sheweth:

1. That the parties to the present suit have agreed to share the entire area of the land measuring 16.5 Lechas covered by Dag No. 430/1110, P.P. No. 9/465, Block No. 5 of Jorhat town, Assam, situated by the side of T.R. Phukan Path, in 3 (three) equal shares. The defendant No. 1 shall possess 1/3 of the total land on the Eastern side of the said land and the defendant further denounces hereby any claim whatsoever in respect of the residue of the land as described herein-above by extinguishing the same.

It is, therefore, humbly prayed that a compromise decree please be drawn up in the light of the statements made herein-above.

AND

For this act etc. etc.

VERIFICATION

What are stated in the foregoing paragraphs are true to our knowledge, belief and information and in verification whereof we have put our signatures on this 21st day of July, 1998 at Jorhat.

Sd/- Nurul Hussain

Sd/- Atul Hussain

Sd/- Amir Hussain”

7. However, it appears that the plaintiff of Title Suit No. 57/96 and the defendant No. 1 and pro forma defendant No. 2 had signed in the said petition. By the said compromise, 16½ Lecha of land left behind by Jainul Hussain was divided into three equal shares with the stipulation that the defendant No. 1 of the said suit (plaintiff of the present suit) shall possess 1/3rd of th