Code of Civil Procedure, 1908 – Suit seeking partition claiming that the suit property is not ancestral property – Held, the suit property purchased by the grandmother using family funds in the name of the father of the appellant is joint family property – The appellants contended that since the suit property is not an ancestral property, it cannot be partitioned amongst their father, grandfather and father’s brothers – The Appellants further contended that since the suit property was not taken into consideration during the partition in the year 1974, the grandfather of the appellants filed a suit seeking partition in which the suit property was equally divided amongst the appellant’s father, his brothers and appellant’s grandfather, which was decreed by way of a compromise decree whereby the appellant’s father received his part of his share – Subsequent to the same, the appellants herein challenged the compromise decree stating that the compromise entered into between the parties, including their father is fraught with coercion:
Held: The appellants have failed to prove that the suit property is not an ancestral property – Although suit property was purchased in the name of the appellant’s father, it was purchased from the family funds and thus, it is a joint family property. [Para 7] Code of Civil Procedure, 1908 – Order 23 Rule 3A – Fresh suit cannot be filed to challenge a compromise decree: Held: The compromise decree was never challenged by the appellants’ father – The appellants filed a fresh suit seeking cancellation of the compromise decree and further seeking partition of the suit property – The challenge of the said compromise decree is that the appellants’ father was coerced by his brothers and father to enter into the said compromise – The compromise decree cannot be challenged by filing a fresh suit as there is a bar on filing a fresh suit challenging the consent decree on the ground of the legality of the compromise under Order 23 Rule 3A of the CPC. [Paras 9,11]
Code of Civil Procedure, 1908 – The remedy against compromise decree is to file an application to recall the compromise decree:
Held: Even if it is accepted that the father of the appellants was coerced by his brothers and father (appellants’ grandfather) to enter into a compromise, which led to the passing of the consent decree, a fresh suit is still not a valid remedy – The appellants’ father should have filed a recall application – If the appellant’s father never questioned the compromise decree by way of a recall application, the appellants cannot now question the same. [Para 12] Code of Civil Procedure, 1908 – Order 2 Rule 2 – Bar on the appellants to raise the claim:
Held: The appellant’s suit is barred under Order 2 Rule 2 CPC as it did not include all the properties which were part of their earlier suit – The present suit is also hit by constructive res judicata as the appellants cannot reagitate their claim regarding the partition of the suit property, which has already been partitioned. [Para 14]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Mukund P Unny, Hony. Associate Editor (Verified by: Kanu Agarwal, Adv.). Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.