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2025 Supreme(Online)(Mad) 34352
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.B.BALAJI, J
J.Sujatha @ July – Appellant
Versus
M.Sathya (Deceased) – Respondent
CRP. PD. No.1852 of 2019 | CMP. No.12250 of 2019
For the Appellants/Petitioners: K. V. Babu
For the Respondents: A. K. Raghavulu, R. Subramanian
A partial compromise in a partition suit is valid under Order 23, Rule 3 CPC if it does not affect non-parties’ rights and preserves outstanding claims for adjudication.
Headnote:(A) Code of Civil Procedure, Order 23, Rule 3 - Partition suit - Recording of compromise - Partial compromise - Validity of compromise involving some but not all co-sharers - Authority of plaintiff to withdraw/contest claims against some defendants - Preservation of rights for remaining properties - (Paras 20, 21, 22, 23)
(B) Partition law - Partial partition invalid if all joint family property is not included and all co-sharers are not impleaded - Principle not applicable where compromise leaves some properties for trial and does not affect rights of non-parties - (Paras 5, 6, 7, 21)
Facts of the case:
The suit was filed for partition of joint family property. After the death of the 1st plaintiff, the 2nd plaintiff entered into a joint memo of compromise with defendants 1 to 4, excluding defendants 5, 6, and 7. The compromise was in respect of certain properties, leaving item 2 of the suit schedule property open for trial, which the 5th defendant claims absolute ownership over. The 5th defendant challenged the recording of the compromise, contending that partial partition and compromise excluding some parties is impermissible.
Findings of Court:
The court found that the compromise concerned only certain suit properties with consent of parties involved, and did not affect the claims or rights of the 5th defendant or others not party to the compromise. The 2nd plaintiff was entitled to withdraw claims against some defendants, and partial compromise was permissible under Order 23, Rule 3 CPC. The court held that this did not amount to illegal partial partition or unlawful compromise.
Issues: Whether a compromise involving some but not all co-sharers in a partition suit is valid; Whether the plaintiff can withdraw claims against certain defendants leaving other claims open; Whether the compromise amounted to an unlawful partial partition.
Ratio Decidendi: The court reasoned that under Order 23, Rule 3 CPC, a compromise may be recorded wholly or in part if parties consent and the rights of non-parties are not affected, and such partial compromise does not violate principles against partial partition if the remaining claims are preserved for trial. Hence, the challenge to the compromise for being partial was untenable.
Result: Civil Revision Petition dismissed.
| Table of Content |
|---|
| 1. factual background on suit and properties involved (Para 1 , 3 , 15 , 16 , 17) |
| 2. arguments on illegality of partial partition and rights of non-parties (Para 4 , 5 , 6 , 7 , 8) |
| 3. counterarguments supporting validity of partial compromise (Para 9 , 10 , 11 , 13) |
| 4. court’s analysis upholding validity of recorded compromise (Para 14 , 18 , 19) |
| 5. court’s reasoning on lawfulness of partial compromise under cpc (Para 20 , 21 , 22 , 23) |
ORDER
The revision has been filed at the instance of the 5th defendant, challenging the order of the learned V Additional District and Sessions Judge, City Civil Court, Chennai, recording joint compromise memo entered into between the 2nd plaintiff and defendants 1 to 4.
2. I have heard Mr. K. V. Babu, learned counsel for the revision petitioner, Mr. A. K. Raghavulu, learned counsel for the 1st respondent/ 2nd plaintiff and Mr. R. Subramanian, learned counsel for respondents 4 and 5.
3. The learned counsel for the petitioner, Mr. K.V. Babu, would state that the suit has been filed for partition and pending the suit, the 1st plaintiff died and thereafter, the 2nd plaintiff has proceeded to enter into a compromise with defendants 1 to 4 alone. He would refer to the joint memo of compromise that has been entered into between the parties on 25.04.2019 and state that in terms of Clause c, when the parties have agreed that in respect of item 2 of the suit schedule property, the claims of the other parties to the suit would be proceeded against, at the time of trial and shall be decided independently, there cannot be a partial partition, which is not permissible in law. He would further contend that in the event of the 2nd plaintiff succeeding in the suit in respect of item 2, then the defendants 1 to 4 would also become entitled to a right or share in the said property and the compromise is therefore unworkable and the trial judge ought not to have proceeded to record the said joint memo of compromise.
4. The learned counsel for the petitioner would further state that under the compromise, the interest of the defendants 6 and 7 has been given a go-by and it amounted to fraud on the defendants 6 and 7. He would further state that, by recording the compromise, the suit could not have been dismissed as against defendants 1 to 4 even in terms of the memorandum of compromise, which preserved the right of the 2nd plaintiff to proceed with the trial.
5. The learned counsel would also place reliance on the decision of the Hon'ble Supreme Court inKenchegowda (since deceased) by legal representatives v. Siddegowda reported in(1994) 4 SCC 294, where the Hon'ble Supreme Court held that a decree of partition of joint family property cannot be ordered unless the whole joint family property is included in the suit and all co-sharers are impleaded.
6. He would also place reliance on another decision of the Honourable Supreme Court in R. Mahalakshmi Vs A. Kanchana and others reported in(2017) 11 SCC 548 , where the Hon'ble Supreme Court held that partial partition was bad in law, when some of the properties have been found to be omitted.
7. He would further rely on the decision of this Court in Gandhi v. Saminatha Gounder and others reported inAIR 2006 Mad 155 where this Court held that non-inclusion of 15 sovereigns of jewellery in the schedule to the suit property was fatal to the relief of partition.
8. The learned counsel would also rely on the decision in Subbathal v. Kittamal reported in(1971) 1 MLJ 293 , where this Court has held that any compromise dealing with rights of persons who are not parties to the compromise and have not signed the terms, then the compromise would not be a lawful compromise within the meaning of Order 23, Rule 3 of C.P.C.
9. Per contra, Mr.A.K.Raghavulu, learned counsel for the first respondent would submit that the second plaintiff and the other defendants are not aggrieved by the compromise insofar as three of the suit properties, namely, item 1A, 1B and 5 and even the revisi
