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PETITIONER: K. VENKATA SESHIAH

       Vs.

RESPONDENT: KANDURU RAMASUBBAMMA (DEAD) BY LRS.

DATE OF JUDGMENT19/02/1991

BENCH: MISRA, RANGNATH (CJ) BENCH: MISRA, RANGNATH (CJ) KULDIP SINGH (J)

CITATION:  1991 SCR  (1) 538        1991 SCC  (3) 338  JT 1991 (1)   642        1991 SCALE  (1)257

ACT:      Constitution of India, 1950-Article 136 read with Order 23,  Rule  3,  Code  of  Civil  Procedure,   1908-Compromise petition-Genuine and lawful-To be acted upon.     Transfer  of  Property  Act,  1882-Section  54-Sale   of certain  suit property pendente lite of one of  the  parties and prior to compromise-Not valid.

HEADNOTE:      Respondent  No.  1  adopted  petitioner-appellant,  who married  two wives and through the first wife he had a  son, the  respondent No. 2 and through the second,  another  son, the  respondent  No. 3. During the pendency of  the  special leave  petition  the  adoptive  mother  of  appellant  died. Respondent  2  and 3 laid claim to the  entire  property  of respondent No. 1 exclusively under two different wills  said to  be by the respondent No. 1 and each contended  that  the other  will was a forged one.  On the death of the  adoptive mother,  the appellant laid claim to her entire property  as heir.   While each of the parties had taken such  stand,  in the  litigation a compromise was brought about on  21.8.1987 between  the appellant and his two sons, the  respondents  2 and  3 and the same was filed in this Court and in terms  of the compromise the appellant, to make payment of Rs. 1  lakh to  each of his two sons in lieu of relinquishment of  their interest.      When   the   matter  was  listed  for   recording   the compromise,  the respondent No. 2 contended that as  he  had not been paid Rs. 1 lakh as stipulated in the compromise, in the  meanwhile he had alienated about 81 acres of  the  suit properties to the third parties.  The alienees had been also impleaded as parties under the orders of this Court.      Disposing of the petition, this Court,      HELD: 1. Once the Court was satisfied that there was  a compromise  it was for the Court to record the same  and  no option lay before the Court to act otherwise. [542A-B]                                                        539      2.  As the compromise petition in the instant  case  is genuine nd lawful the same has to be acted upon. [542B]      3. It is directed that the compromise petition shall be accepted and in terms thereof the suit shall be disposed  of and the terms of the compromise shall form part of the order

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to  be drawn up in this Court for disposing of  the  special leave petition. [542B-C]      4.  With  a view to settling all equities  between  the parties,  directed that the appellant to pay a sum  of  Rs.1 lakh more to respondent No. 2 within eight weeks. Rs. 77,124 being  the  amount  paid by the  alienees  before  the  Sub- Registrar  in respect of the sale-deeds shall be  deposited. [542C-E]      5. The alienees have no right created under the alleged sale-deeds.   Their possession is without authority  of  law and clarified that none of the sale-deeds is valid. [542F-H]      6. The alienees shall deliver vacant possession of  the property by 30th of April, 1991, and in the event of failure to  do  so  the  Trial  Court  directed  to  deliver  vacant possession. [543A-B]      Bhoja  Govinda Maikap & Anr. v. Janaki Dei & Ors.,  AIR (1980) Orissa 108, approved.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Misc. Petition  No. 15001 of 1989.                             AND      I.A. No. 1 of 1989 in S.L.P. No. 12288 of 1984.      From  the  Judgment and Order dated  20.4.1984  of  the Andhra Pradesh High Court Appeal No. 472 of 1976.      K. Mahadeva Reddy, Ms. Manjul Gupta, T.V.S.N. Chari and A. Subba Rao for the Petitioner.      K.  Ram  Kumar,  S.A. Ahmed, Tanweer  Abdul  and  Mohan Pandey for the Respondents.      The following Order of the Court was delivered:                                                        540      The  special  leave petition under Article 136  of  the Constitution  is directed against the affirming judgment  of the  Andhra  Pradesh  High Court in a  suit  for  title  and injunction.      In  view of the fact that a petition of  compromise  in respect of the entire subject-matter of litigation has  been filed in this Court it is unnecessary to refer to the  facts leading to the litigation.  We shall, therefore, confine the discussion to matters pertinent to the compromise.      Subbamma  adopted one K.V Seshiah. Seshiah married  two wives.   Through the first wife he had a son born to him  by name  Sudarshan Gupta and through the second another son  by name Anand Babu.  In February, 1985, during the pendency  of the   special  leave  petition  the  adoptive-mother   died. Sudarshan and Anand Babu led claim to the entire property of Subbamma  exclusively to each  of them under  two  different wills  said  to be by subbamma and each contended  that  the other will was a forged one. With the death of the adoptive- mother,  Seshiah led claim to the entire property  as  heir. While  each  of  the parties had taken  such  stand  in  the litigation  a  compromise  was brought  about  on  21.8.1987 between  the father and his two sons and the same was  filed in  this  Court.   The terms of  the  compromise  stipulated payment of Rs. 1 lakh by the father to each of his two  sons in  lieu  of  relinquishment of their  interest.   When  the matter  was  listed before the Court for  recording  of  the compromise,  Sudarshan  Gupta,  second  respondent   herein, maintained that he had not been paid Rs.1 lakh as stipulated and  he  had  no intention to accept  the  compromise.   The question  as to recording of the compromise was taken up  by the Court and parties have been heard.      One of the stipulation in the compromise deed which has

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admittedly  been  signed  by the father  and  his  two  sons stipulates:          "The  petitioner has given to the second and  third          respondents (the two sons) an amount of Rs. 1  lakh          each  and  the second and  third  respondents  have          received the same." In  the  face  of such a statement in  the  compromise  deed signed by the parties the second respondent had disputed the fact of payment and has, in the meantime, alienated about 81 acres  of property which constitutes the  subject-matter  of dispute to third parties.  The alienees                                                        541 have now been brought on record unders order of this Court.      We have heard counsel for the original parties as  also the  alienees.   The alienations are for about  a  purported consideration of Rs. 4 lakhs.  The sale-deeds indicate  that a  sum  of Rs. 1 lakh had been received earlier  and  a  net amount  of  Rs.77,124 out of the consideration  money  under these  documents  has  been  paid  before  the   registering authority. The alienees  have admittedly been in  possession of  the  property from the date of the sales which  is  more than three years’ old by now.      Admittedly, the transfers are pendente lite.  In  fact, if  the  compromise  is  valid  and  binding  the   alienor- respondent  no.  2 had no interest in the property  to  part with  in view of the stipulation in the compromise  that  on receipt of Rs. 1 lakh he relinquished his entire interest in the property.  The alienees have made an attempt to hold out that there were agreements for sale prior to the  compromise for which there is no acceptable evidence.  We think we have to  find that the alienees had no interest in  the  property prior to the compromise and we must hold that the sale-deeds are subsequent to 21.8.1987.      Mr  Ram Kumar who appeared for the  second  respondent, apart from maintaining that his client has not received  the sum  of  Rs.1  lakh  has not been  able  to  point  out  any justification  as to why the compromise should not be  acted upon  and  on  the basis of it the  litigation  may  not  be disposed  of.  The factum of compromise is not  in  dispute. Respondent no. 2 and his counsel Mr. Ram Kumar have accepted the  fact  that  the  parties  have  signed  the  compromise petition which contain terms which they had accepted and all parties  have  accepted  the document of  compromise  to  be genuine.      Counsel  for the alienees has taken the stand that  the said  alienations are valid and the transferees have  become owners  of the property and has even maintained  that  there have been improvements of the property by the alienees.   He sought to rely on certain decisions which on being  referred to were found to be totally inapplicable to the facts of the case.   On the other hand, we find that a  similar  question arose  before  the Orissa High Court in the  case  of  Bhoja Govinda Maikap & Anr. v. Janaki Dei & Ors., AIR (1980)  Ori. 108 where the power of the Court  under Order 23, rule 3  of the  Code of Civil Procedure in the face of an objection  of one of the parties to the compromise was considered. Relying upon several authorities of different High Courts and one of the Privy Council referred to in the decision, the High                                                        542 Court held that once the Court was satisfied that there  was a compromise it was for the Court to record the same and  no option lay before the Court to act otherwise.      We  are in accord with the principle indicated  in  the said  decision  and are of the view that as  the  compromise petition  is  genuine and lawful the same has  to  be  acted

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upon.   We  direct  that the compromise  petition  shall  be accepted and in terms thereof the suit shall be disposed  of and   the  terms of the compromise shall form  part  of  the order  to  be drawn up in this Court for  disposing  of  the special leave petition.      With  a  view  to settling  all  equities  between  the parties  and with the consent of Seshiah who is  present  in Court,  and  counsel  for the sons  and  after  hearing  the Advocate for the alienees, we make the following directions:          1.  Seshaiah shall pay a sum of Rs. 1 lakh more  to          Sudarshan  Gupta  within eight  weeks  from  today.          This  amount shall be deposited in the Registry  of          this Court within the time indicated and  Sudarshan          Gupta shall be free to withdraw the amount.          2. Rs 77,124 being the amount paid by the  alienees          before  the Sub-Registrar in respect of  the  sale-          deeds shall be deposited within the same period  in          the  Trial Court and the alienees of the  different          sale-deeds  would  be  entitled  to  withdraw   the          amounts on the basis of the record made by the Sub-          Registrar on each of the sale-deeds.          3.  The  alienees have no right created  under  the          alleged  sale-deeds.  Their possession  is  without          authority of law.  Ordinarily, they would have been          liable to account for mesne profits. In view of the          fact  that there was the allegation of  payment  of          Rs.  1  lakh to Sudarshan Gupta which we  have  not          investigated  and  to meet the  further  allegation          that  some  improvements  have  been  made  to  the          property which too we have not gone into, we direct          that the mesne profits shall be set off against the          same.  Under orders of this Court security has been          furnished  for  mesne  profits.   In  view  of  the          aforesaid direction, the security furnished in  the          Trial Court shall stand discharged and the alienees          will  have  no  liability  to  account  for   mesne          profits.   We declare and clarify that none of  the          sale-deeds  is valid and none of the  alienees  has          any interest in the aforesaid property.                                                        543          4. The alienees shall deliver vacant possession  of          the property by 30th of April, 1991, to Seshiah and          in the event of failure to do so the Trial Court is          directed  by  our present order to  deliver  vacant          possession of the entire property in suit including          those which are covered by the sale-deeds in favour          of  the  alienees  to  Seshiah  within  one   month          therefrom.   If  necessary,  the  Trial  Court  may          appoint  a  Commissioner and take police  help  for          executing this order and such cost shall ultimately          be  borne  by  the  defaulting  alienees  but   may          initially be met by Seshiah. There would be no order for costs. V.P.R.                                 Petition disposed of                                                        544