Suit filed against manager of the family and other minor co-parcenors.

Govinda Menon, J.-O.S.No.97 of 1952 on the file of the Court of the Subordinate Judge of Devakottai is a suit for partition filed by one AL. VR. ST. Ramanathan Chettiar claiming a 1/3rd share in all the assets of the joint family of which he was a member and pending that suit I.A.No.34 of 1954 was filed on 6th January, 1954, under Order 23, rule 3, Civil Procedure Code, to record an adjustment and to compromise the suit, and a document, dated 20th November, 1952, containing the terms of the agreement was filed along with it. On a contest by the defendants that there was no lawful agreement or compromise by which the suit has been wholly or partly adjusted, the Subordinate Judge, after considering the affidavit evidence, as well as the documents placed before him, came to the conclusion that there has been no lawful agreement and though he was satisfied that the contentions of defendants 1, 5 and 7 were not bona fide, but were purely on a technical point, dismissed the application.

The present Civil Miscellaneous Appeal is by the plaintiff against the dismissal praying that a decree in terms of the compromise in accordance with the document dated 20th November, 1952, may be passed. It is worthy of note that though the document of adjustment is dated 20th November, 1952, an application for passing a decree in terms thereof was filed only on 6th January, 1954 and on that ground it is contended by the contesting respondents that the document was not intended to take effect though it was signed by some persons under a misapprehension. In view of the fact that in our opinion the application has to fail on legal grands, it is unnecessary to decide about the merits of the compromise or whether the signatories to it had full knowledge of its contents ; or whether there was an equitable and just division of the properties. Before discussing the legal aspects, it is convenient to state briefly the circumstances under which the litigation arose.

The following genealogical tree reveals the relationship of the parties to the litigation:-

The plaintiff’s suit was therefore for a one-third share of the ancestral properties which were in the management of the eldest brother Lakshmanan Chettiar and after his death in the management of the second brother Veerappan Chettiar. It may be mentioned that in the plaint the first defendant was proposed as the guardian of his minor children defendants 2, 3, and 4 but on his expressing his unwillingness to act as guardian, the mother Unnamalai Achi was proposed and appointed as guardian. It is therefore a case where the head and manager of the joint family has not accepted the guardianship of his minor sons who would normally be under his protection. This will have a relevant bearing en the position and capacity of the first defendant with regard to his actions as head and manager of the joint family. Another circumstance is that during the pendency of these proceedings Umayal Anandavalli Achi, the sixth defendant, has filed O.S. 25 of 1954 on the file of the same Court claiming a 1/6th share in the entire properties on foot of her right under the Hindu Women’s Right to Property Act as being the widow of Lakshmanan Chettiar who was entitled to a one-third share and that suit is now pending. On these grounds it is alleged by the other defendants that even if a compromise decree is passed in this suit, since the 6th defendant is not a party to the compromise, there will not be finality to the contest.

Exhibit A-1 is the partition agreement by which the entire properties have been divided into three shares and it is signed by the plaintiff, the first defendant, the seventh defendant as guardian of defendants 2 and 3 and by the fifth defendant. The 6th defendant has not given her assent to this compromise. The two mediators who have brought about the agreement, Muthiah Chettiar and Meyappa Chettiar, were not examined by either side ; nor have they filed any affidavit showing the circumstances under which the agre

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