1. This is a plaintiffs' appeal and arises in the following circumstances:
2. The property in dispute in the case belonged to one Ahmad Husain, who died on 10th December 1925, leaving two daughters, Mt. Akbari Begam and Mt. Soghra Begam, the two plaintiffs, and three sons, Rahmat Husain, Shafqat Husain and Azmat Husain, the three defendants. The plaintiffs instituted the suit, which has given rise to this appeal, on 10th December 1928 claiming their legal share in the immovable property entered in list A and in the moveables detailed in list B annexed to the plaint. Subsequently the plaint was amended and several deeds of gifts, which the defendants had relied on in the written statement filed in the meantime, were impugned on the ground that the same had been obtained by the exercise of undue influence. Similarly certain other gifts relied on by the defendants were impeached on the ground that the same, if made at all, were vitiated by marzul maut from which Ahmad Husain was suffering at the time when these latter gifts were made. If all the gifts on which the defence was rested be accepted as valid, it is not disputed that the plaintiffs' suit must be dismissed. The defendants maintained in their written statement the validity of all the gifts therein referred to and claimed that such gifts had been perfected by delivery of possession as required by Mohamedan Law. Other pleas were also taken by the defendants. It was urged that the plaintiffs were not in possession of any part of the property in suit, and therefore not competent to maintain a suit for partition. Another question which arose on the pleadings had reference to the share obtained by Farhat Husain the fourth son of Ahmad Husain under some of the gifts. Farhat Husain predeceased Ahmad Husain, and the plaintiff claimed that even if the gifts relied on by the defendants be valid, Farhat Husain's one-fourth share devolved upon Ahmad Husain, on whose death the plaintiffs became entitled to their legal share in such one-fourth share. The learned Subordinate Judge framed a number of issues embodying the various disputes which arose on the pleadings. The case was fixed for hearing on 16th and 17th May 1929. When the case was called on for hearing on 16th May 1929, Mr. Abdul Rauf vakil put in appearance on behalf of the plaintiffs. He was accompanied by a pairokar named Hikayat Yar Khan, the husband of the plaintiff Mt. Soghra Begam. Defendant Shafqat Husain was represented by Mr. Poshakilal vakil, the defendant Azmat Husain by Mr. Man Mohan Lal, and the defendant Rahmat Husain was present in person. An application signed by the Yakils of both the parties and Hikayat Yar Khan was filed and verified by the pleaders. It ran as follows:
The parties rely on the statement of defendant 1 as regards all the disputed questions in the case including costs. Whatever statement the aforesaid defendant makes will be accepted by the applicants and the case be decided in accordance therewith. The parties do not desire to lead any other evidence in the case.
3. I have given my own translation of the original application, as I think the translation to be found in the paper book is not very happily worded. I have ignored the words 'faisle ki babat' occurring at one place in the original application, as they do not quite fit in with the context in which they occur. No difference is however made as regards the substance.
4. It is easy enough to understand why Rahmat Husain was chosen as a referee. The property claimed by him had been gifted to him under a deed executed as far back as 1912. He did not claim under any of the oral gifts which had been pleaded by his two brothers, Shafqat Husain and Azmat Husain, defendants 2 and 3. It was probably realised by the plaintiffs that the deed relied on by Rahmat Husain could not be shown to have been fictitiously executed which was the only ground on which it had been impeached by the plaintiffs. There was probably no real contest between the plaintiffs and Rahmat Husain. They had however a chance of success as regards a portion of the property claimed by the other defendants under the oral gifts set up by them. The plaintiffs' plea of 'marzul maut' had reference only to such gifts. Rahmat Husain was not regarded as interested in falsely upholding the oral gifts. Defendants 2 and 3 and the plaintiffs were equally related to Rahmat Husain, who was, for these reasons, considered to be neutral.
5. Rahmat Husain made a detailed statement covering all points in dispute in the case. He stated that Ahmad Husain had executed a deed of gift in his own favour and perfected it by delivery of possession. Similarly he affirmed the validity of the deeds relied on by the other defendants. He also deposed to oral gifts in favour of his brothers. He negatived the plea of 'marzul maut' raised by the plaintiffs. According to him Ahmad Husain left no property which could devolve upon his heirs. He added that, in his opinion, the parties should bear their own costs. The plaintiffs might have had reason to repent the course which was adopted on their behalf, but there can be no doubt that Rahmat Husain's statement was decisive of all points, if it could be accepted as true. It was not challenged on any ground when it was recorded. No right of cross-examination was claimed. The plaintiffs did not ask for any opportunity to lead evidence, such as they now claim. It is perfectly true that those who could do all this stood committed to the course which had been adopted. The whole controversy, in my opinion, resolves itself to the question whether the plaintiff's pleader had authority to agree to abide by the statement of Rahmat Husain.
6. The learned Subordinate Judge forthwith delivered his judgment, which narrates the pleadings and mentions the issues arising there from. He refers to the circumstances in which Rahmat Husain made his statement, which is briefly reproduced. The judgment concludes by dismissing the plaintiffs' suit with costs. A decree was drawn up in due course according to the judgment.
7. After a week, on 23rd May 1929, an application was presented by the plaintiff Mt. Akbari Begam, questioning the authority of her 'pairokar' and the vakil to agree to abide by the statement of Rahmat Husain. The other plaintiff, Mr. Sughra Begam, did not join in this application, probably because her husband, Hikayetyar Khan, was a party to the agreement to abide by the statement of Rahmat Husain. She did not originally figure as one of the appellants, but was impleaded as a respondent. But as her own case was identical with her sister in impeaching the proceedings of 16th May 1929, she-was, on her own application, transposed to the array of the appellants. Mt. Akbari Begam's application, above referred to, imputes collusion to Hikayetyar Khan. No such allegation is made against Mr. Abdur Rauf. It was prayed that:
The order, dated 16th May 1929, be set aside and the above named case be heard and decided.
8. On a question put by the learned Subordinate Judge to the pleader who then appeared for the plaintiffs, it was said that the application was one under Section 511, Civil P.C., and that the Court should set aside the decree in the exercise of its inherent power. The Judge apparently doubted that he could, take action under that section. He however preferred to.dispose of the application on the merits. He held that Mr. Abdul Rauf had ample authority to bind his client in agreeing to abide by the statement of Rahmat Husain. He referred to the terms of the 'vakalatnama' executed by the plaintiffs. Accordingly the application was dismissed on 28th May 1929. The order last mentioned has not been challenged by an appeal or revision, assuming one cart lie. The present appeal is from the decree dated 16th May 1929. I think. the plaintiffs have adopted the right course in merely filing an appeal from the decree which is final, except so far that it may be interfered with: (1) in review on grounds mentioned in Order 47, Civil P.C., which are not alleged, or (2) in a regular suit based on allegations of fraud or the like, or (3) in appeal from the decree itself. In the last case its validity can be examined solely with reference to the materials on the record of this case.
9. The grounds on which the decree appealed from is impeached in the memorandum of appeal are that neither the 'pairokar' nor Mr. Abdur Rauf had authority to agree on behalf of the plaintiffs to abide by the statement of defendant 1, and that the application not having been made with the express consent and verification of the plaintiffs, who are 'pardanashin' ladies, should not have been granted by the lower Court.' In my opinion, the second ground can have no force if the vakil had been authorised by his vakalatnama to take the action which he did, because, if such authority had been conferred, the pleader's act would be binding and no consent or verification by them was needed; otherwise the general authority previously conferred by the vakalatnama would be meaningless. That acts done by an agent within the scope of his authority are as good as those of the principal is too well established a proposition to need any further discussion, and to my mind the sole important question is whether Mr. Abdur Rauf's vakalatnama conferred an authority on him to agree to abide by the statement of any person be deemed fit.
10. It has not been argued before us that the vakalatnama executed by the plaintiffs in favour of Mr. Abdur Rauf was not intelligently executed and that they did not understand its provisions. The only question which was raised in the grounds of appeal and argued before us related to the construction to be placed on the vakalatnama to determine the extent of the vakil's authority. The material part of the vakalatnama runs as follows:
We have appointed Maulvi Abdur Rauf, Vakil, High Court, for the prosecution of the above noted suit (pairvi moqaddama) on our behalf. We agree that everything done by the pleader (sakhta wa pardakhta) will be considered as our own action and we shall accept the same, The aforesaid vakil shall have power to take refund of the court-fee, refer to arbitration (taqarrur salasi) and enter into compromise (sulahnama) and recover moneys (due to the executants), execute receipts, file and withdraw documents, verify plaint, draw lots, attest agreements to refer to arbitration and compromise, obtain copies and execute decrees. We shall not question his actions.
11. The transaction in the paper book is inaccurate where it mentions the power to 'file a compromise.' It is much wider and extends to entering into a compromise. There can be no doubt that the vakalatnama confers very wide powers upon the vakil. Power to compromise on any terms and to refer to the arbitration of anyone are only illustrative of what the pleader is authorised to do by the preceding part of the document in which every act of the vakil is declared to have the same force as if it were of the plaintiffs themselves. The power to compromise, which is much wider than the power to agree to abide by the decision of a referee and the power to refer to arbitration, taken in conjunction with the general and residuary power conferred by the vakalatnama, are comprehensive enough to include a power of the kind exercised by Mr. Abdur Rauf on 16th May 1929. Wasiuzzaman Khan v. Faiza Bibi (1916) 38 All 131 is on all fours on the question of construction. Mt. Masita Bibi v. Khuda Bakhsh A.I.R. 1923 All. 65, also takes the same view. In both these cases a general provision that the client would be bound by all acts of the pleader coupled with the power to compromise and to refer to arbitration was held to include the power to agree to abide by the statement of a particular individual. Apart from the special powers referred to, I am of opinion that it is inherent in the position of every advocate, vakil or pleader to make statements, in course of the trial, refusing to examine witnesses and to say that he will rely solely upon the evidence of a particular witness. It makes no difference if pleaders on both sides make identical statements, refusing to examine any witness other than a certain person, even though such person happens to be one of the parties to the case. Statements of this kind may be regarded as pleadings which ordinarily operate as estoppel. To this extent Mr. Abdur Rauf had power to act apart from the special authority contained in his vakalatnama. Agreement to abide by the statement of a party or third person which partakes of the nature of a compromise and an agreement to refer to arbitration requires special authority. The vakalatnama executed by the plaintiffs in favour of Mr. Abdul Rauf has to be examined and if it does confer such authority the agreement made by the vakil must be held to be binding like any other authorised act done by him in the discharges of his duty.
12. It has been argued by Mr. Khwaja on behalf of the appellant that the application of 16th May 1929 goes further than merely containing a statement to the effect that the pleaders would not examine any witnesses other than Rahmat usain, defendant 1. It is pointed out that the decision of the case was to follow not only the statement to be made by Rahmat Husain on disputed questions of fact but also the opinion of the witness an the question of 'marzul maut,' which is a mixed question of law and fact, and even as regards costs. In my opinion, this does not make any difference. 'Marzul maut' is a well understood expression among the Mahomedans. What the pleaders of the parties stated in the application was that if Rahmat Husain's statement shows that the deceased Ahmad Husain, was not suffering from 'marzul maut,' the gifts in relation to which the plea of 'marzul maut' had been raised should be upheld. As regards costs, which are always in the discretion of the Court, the parties agreed that the Court should decide in accordance with the opinion of the witness. It seems to me that, in so far as the application contained an agreement of the, parties that Rahmat Husain's statement be accepted as conclusive his statement, operated as an admission of both parties. Section 20, Evidence Act, is, in my opinion, clearly applicable. It lays down that:
statements made by persons to whom a patty to the suit has expressly referred for information in reference to a matter in dispute are admissions.
13. Messrs. Amir Ali and Woodroffe quote, in their notes to Section 20, Evidence Act, from Taylor, para. 761, as follows:
These principles apply whether the question referred be one of law or of fact; whether the persons to whom reference is made have or have not any peculiar knowledge on the subject.
14. These remarks are based on English decided cases. The learned Counsel for the appellants commented on the word 'information' occurring in this section and contended that the parties did not stand in need of obtaining any information from Rahmat Husain but agreed to abide by his decision. The word 'information,' occurring in Section 20, is not to be understood in the sense that the parties desired to know something which none of them had any knowledge of Where there is a dispute as regards a certain question and the Court is in need of information regarding the truth on that point, any statement which the referee may make, though known to one or both of the parties, is nevertheless 'information' within the meaning of Section 20, Evidence Act. Admissions may operate as estoppel and they do so where parties had agreed to abide by them.
15. The matter may be considered from another stand-point. In so far as the application of 16th May 1929 contained an agreement that the parties would abide by the opinion of Rahmat Husain on the question of 'marzul maut' and costs, he may be considered to have been made an arbitrator. We have to look to the substance rather than the form in which the agreement, arrived at on 16th May 1929, is couched. If one part of the application has all the attributes of an agreement to refer and another part has all the attributes of statements in pleadings, I see no reason why the application should not be given effect to in both of its aspects. If, as is contended by the learned Counsel for the appellants, the decision of these questions was referred to Rahmat Husain, the Court made a reference as soon as it examined him, and the witness gave his award when he stated in course of his deposition that Ahmad Husain was not suffering from 'marzul maut' when certain gifts were made, and that in his opinion parties should bear their own costs. As already mentioned, the 'vakalatnama' executed by the plaintiffs in favour of Mr. Abdur Rauf clearly confers upon him a power to refer to arbitration. In this view the pleader should be considered to have acted in the exercise of his power to prosecute the plaintiffs' case when he stated in the application that he would, not examine any witnesses on behalf of the plaintiffs and would rely solely on the statement of Rahmat Husain, and to have referred to the arbitration of Rahmat Husain the questions of 'marzul maut' and costs. The pleaders of the opposite party did the same. The statement of Rahmat Husain,. in so far as it fell within the first category, should be considered to be an admission of the parties and his award, so far as it fell within the purview of the second. Such admissions operate as estoppel (See Taylor, Section 760). The award is an adjustment of the suit in the manner agreed.
16. It does not appear from the record, nor is it contended, that any of the parties attempted to resile from the agreement before the judgment was delivered. The only evidence which the Court had before it for the disposal of all the issues arising in the case was the statement of Rahmat Husain. The lower Court gave its finding on all the issues quoted in the judgment relying upon such statement which if accepted, as true, was decisive on every one of them. The learned Subordinate Judge was not moved by anyone on behalf of the plaintiffs, before he delivered his judgment, that they desired to lead other evidence. Indeed such an application, if made, would not have been entertained in view of what had happened. It is not possible to suggest that the learned Subordinate Judge should have adopted any course other than that which he did adopt on the date when he pronounced his judgment. We must consider in this appeal, which is from the decree dated 16th May 1929, what the situation then was. The case had been fixed for final disposal. The only evidence which the parties desired to lead was before the Court. None of the parties intimated that they had anything further to do in substantiating their respective cases. The case was ripe for judgment, and the Court had no alternative but to decide the case on the evidence before it. It has not been argued before us that the evidence of Rahmat Husain, if accepted, did not enable the learned Subordinate Judge to decide the case on any question which he was called upon to decide. It would have been open to the defendants to argue before the learned Subordinate Judge delivered his judgment that the evidence of Rahmat Husain, if accepted as true, did not justify a total dismissal of the plaintiffs' case, and that on his evidence, or in the absence of his evidence on a particular point, the plaintiffs were entitled to succeed as regards part of their claim. The learned Counsel for the appellants has not argued before us that Rahmat Husain's evidence did not go far enough to justify the total dismissal of the plaintiffs' case. The grounds of appeal likewise did not impugn the decree of the learned Subordinate Judge on any such ground. The argument before us, was practically confined to the question that the plaintiffs' vakil had no authority to bind the plaintiffs by the agreement appearing in the application of 16th May 1929.
17. It was suggested in the course of arguments that the parties could not agree that the case be decided on the statement of Rahmat Husain, defendant 1. The suggestion was based on certain observations occurring in Bishambhar v. Radha Kishunji : AIR1931All557 which was a case in which the parties agreed to abide by the statement of a pleader without an oath being administered to him, but before the pleader made a statement and before any decree was passed in accordance with his statement, the plaintiff resiled from his agreement. It was held that it was open to the plaintiff to resile from the agreement. It was observed at p. 396 (of 1931. A.L.J.) that:
although the breach of such an agreement might entitle a party to sue for damages, we do not consider that such an agreement binds the parties to it and prevents them from resiling from such an agreement and we do not consider that such an agreement must necessarily be enforced.
18. That question does not arise in this case and I do not intend to hold anything which is in conflict with the view expressed in the above passage. Reliance is placed on a passing' remark occurring at p. 396 (of 1931 A.L.J.) which runs as follows:
Now it is clear that there are two kinds of proceedings which are allowed to parties who do not wish their suit to be tried by a Court in the usual manner. Firstly, the parties may agree to-abide by the statement on oath of some person under the Oaths Act, or secondly, the parties may make a reference to arbitration under the Schedule 2, Civil P.C.
19. Later on it was observed that:
if parties desire that the case should abide by the knowledge of facts possessed by some person, then it is open to the parties to make an agreement under the Oaths Act, that the case should abide by the statement on oath of that person. If on the other hand the parties desire that the case should be decided by some person instead of being decided by the Court, then it is open to the parties to have that person appointed as arbitrator under Schedule 2. But the particular kind of reference in the present case which is by no means uncommon seems to us to serve no useful purpose.
20. No argument can be built on this passage and it cannot be contended that the parties can only agree to abide by the statement of a person made on special oath, but that it is not open to the parties to agree to abide by the statement of a third person made in the usual manner as a. witness or made without an oath. I do not think that the learned Judges who decided that case intended to lay down any such proposition. It is, in my opinion, open to the parties to agree to abide by the statement of a. third person to be made on an oath administered in the manner in which witnesses are sworn in Courts. This view has been consistently taken by this Court in: Jai Gobind v. Jasram (1898) AWN 120 Kesho Ram v. Peare Lal AIR 1923 All 443, and Mithu Lal v. Sri Lal AIR 1924 All 126. The only difference is that in case of special oath contemplated by Sections 8 and 9. Oaths Act, Section 11 of that Act applies and the statement is conclusive; while in cases in which the Oaths Act does not apply, the statement of the referee amounts to an admission of both the parties and, as such, entitled to the same consideration as are applicable to any other admission which may or may not operate as estoppel. Where parties agree to abide by such statement it will so operate, unless fraud is established or the bar of estoppel is otherwise removed (Taylor, para. 760).
21. For the reasons stated above, I am of opinion that the learned Subordinate Judge was justified in passing a decree on the statement of Rahmat Husain. On the facts stated by him being accepted, no other decree could be passed. The result, in my opinion, is that the decree appealed from cannot be challenged. I would affirm it and dismiss the appeal with costs.
22. In this first appeal the facts have been set forth in the judgment of my learned brother, and there are only a few facts on which I would like to lay stress. The father of the parties, M. Ahmad Husain, died on 10th December 1925, leaving two daughters, the two plaintiffs, who are pardanashin ladies, and three sons, who arc the three defendants. Prima facie the plaintiffs are entitled to 1/4 share in the property of their deceased father and they have sued for that share. Defendant 1 is a Sub-Inspector of police; defendant 2, is a pleader of Bareilly, and defendant 3, is a mukhtar and revenue agent of Bareilly. The written statement of the defendants which was first filed on 19th January 1929, was to the effect that M. Ahmad Husain, the father of the parties, did not leave any property on his death. It was not contested that the list of immovable property in the plaint was incorrect or that that property did not belong at one time to M. Ahmad Husain. That property embraces five items of immovable property consisting of shares in two villages, two houses and a building with a sugar manufactory, the total of the immovable, property being valued at Rs. 25,000 and there was also a list of movable property valued at Rs. 4,328-8-0, the total property being valued at Rs. 29,328-8-0. The pleading of the defence in regard to this property was that under a deed of gift dated the 23rd May 1912, M. Ahmad Husain had made a gift of items 1 and 3 to the three defendants and a fourth son, Farhat Husain who was then alive, and had delivered possession to them, and under a second deed of gift dated the 24th May 1912, Ahmad Husain had made a gift of item 1 to defendants 1 and 2, and had delivered possession. After that it was said that M. Ahmad Husain got the house, item 4 constructed. Item 5, the sugar factory, was stated to have been constructed by defendant 2. In para. 9 of the written-statement it was pleaded that in December 1925, M. Ahmad Husain made an oral gift of the property in Mauza Chanwar, which is item 2, to defendant 3, and give him possession. Farhat Husain had predeceased his father, and it was also pleaded in para. 9 that his father made a gift of the right to the residential house which had devolved on him from Farhat Husain to defendant 3. It was further pleaded that Ahmad Husain that declared Mt. Nasiban who is not a party to the case to be owner of the ornaments and household goods under an agreement dated the' 2nd October 1923. It was disputed that the list of movable property was not correct as regards furniture. There were three written statements on the 19th January 1929, by each defendant and three further written-statements were filed by each defendant on 19th March 1929. These were in reply to amendments of the plaint on that date.
23. The amendment of the plaint was to the effect that the two deeds of gift dated the 23rd and 24th May 1912 were executed fictitiously to guard the property, and that on the death of Farhat Husain his 1/4 share in the property, items 3 and 5 in list A under those deeds of gift would have devolved on his father, and that after his death each of the plaintiffs became entitled to a two-anna share in his four anna share. It: was further pleaded that M. Ahmad Husain was seriously ill when the deed of gift in respect of the pro-perty 2 was alleged to have been executed by him; in other words, that it was invalid on account of marzul maut' and undue influence on the part of the defendants. The further written-statement of the defendants pleaded that the oral deed of gift of Ahmad Husain was not made during 'marzul maut'. It was, however, not clearly stated in the pleadings of the defendants at what period the oral gift in question was made. On p. 14 para. 5 it is merely stated that there was an oral gift made, and on p. 15, in para 9, there is a reference to the year 1925 when the gift of a zamindari property in mauza Chanwar was made. The further written-statements of the defendants do not clear up the date of the alleged oral gift, and the pleading, on p. 18, para. 5, suggests that the deceased had only one day's illness, the day before his death. The next proceeding in the case was that on 19th January 1929, Hikayat Yar Khan was examined as pairokar of the plaintiffs and one of the defendants was examined for the defendants under Order 10, Rule 1, and eight issues were framed on that date The plaintiffs applied thereafter for the issue of a commission ox commissions for evidence, and there was some delay in the execution of the commission. There is a reference to a commission being sent to Ghazipur district. It was while this matter was pending that the case came before the Court on 16th May 1929. The dates 16th and 17th May 1929, had been fixed for the final hearing of the case by an order of 19th March 1929, passed on the date of framing issues. The English note? show that there were in the meantime a number of orders in regard to the issue of commissions on behalf of the plaintiffs, and of these the last order in English, to which reference is made on the vernacular order-sheet, is dated 15th May 1929, and is to the following effect:
I find that the plaintiffs are trying to obstruct the proceedings of the suit. Pour witnesses cannot be examined on commission on a Court day. If the commission is not executed on 12th May 1929, I am afraid the application shall have to he refused(?).
24. The next order of 16th May is:
The parties agree to bind themselves by the statements of M. Rahmat Husain. The case was dismissed according to his oath.
25. There is no order further in regard to the commission. These were the circumstances of the case when the date of 16th May 1929, arrived, that is the commission for four witnesses for the plaintiff had apparently not returned from Ghazipur. The question before us is whether the plaintiffs are to be held as bound by the action taken by M. Abdur Rauf, pleader for the plaintiffs, on that date, an action which according to the petition on p. 27 of the plaintiff Akbari Begam was taken without her knowledge and information and without instructions authorising the pleader to act in such a manner. One of the questions relevant in this connection is whether the action taken by the vakil would be the natural action for a vakil to take under the circunir stances of the case and whether it would be an action which could be regarded as bona fide. It has been suggested that it is always open to a vakil conducting a case to refuse to produce evidence if in his judgment that is the wisest course. That may be so, but it is necessary to consider the circumstances of the case as they stood on 16th May. Prima facie the plaintiffs had a right to a 1/4 share of the property which had belonged to their father. The case for defence was that that property had been disposed of by the deceased before his death partly by oral gifts and partly by written deeds of gift. The onus of proving the oral gifts of immovable property worth about Rs. 6,000 lay on the defence. It would have been possible for the vakil for plaintiffs to contest the case for his clients by cross-examination of the witnesses who would be produced by the defence to prove the alleged oral gifts. It was further necessary for the defence to prove that the alleged oral gifts were made at a period that was not during the 'marzul maut' of the deceased. It will be remembered that the pleadings for defence were vague on this point and did not allege any date for the alleged oral gifts. Prima facie therefore, there was a good fighting case for the plaintiffs as matters stood. It was not a case where a vakil found that the onus of proof lay on his client and that on the date fixed by the Court for final disposal his clients left him in the awkward position of having no evidence to produce. The present case was far otherwise, because the onus of proof of the alleged deeds of gift lay on the defence, and it is obvious from the nature of. the case that it would require very good evidence indeed on behalf of the defence to convince a trial Court and a Court of appeal that the deceased had really made oral gifts disposing of the whole of his property. Under these circumstances the action taken by M. Abdur Rauf pleader for the plaintiffs, was to file a document, which is printed at p. 21 and which is as follows:
We, the petitioners, leave the decision of all the points at issue in this case with costs on the statement of Munshi Rahmat Husain, defendant 1. We shall abide by the statement of the aforesaid gentleman concerning the decision of the said case and it may be decided in accordance therewith. The parties do not want to produce any other evidence.
26. On this document the first signature is not of M. Abdur Rauf but the first signature is of Hikayat Yar Khan described as the pairokar for the plaintiffs. As Hikayat Yar Khan did not possess any power of attorney from either of the plaintiffs his signature on this document does not bind either of the plaintiffs. He is the husband of the second plaintiff and he is a clerk in the execution department of the Judge's Court in Lucknow. The document was signed further by defendant 2, defendant 3 and by one B. Poshakilal pleader and by one B. Monmohan Lal pleader for defendant 3. It was not signed by defendant 1. Now it is obvious that the document in question goes far beyond the conduct of a case by counsel. It is not merely the question that the counsel for the plaintiffs did not want to produce evidence.
27. There are three other points in this document: firstly the document leaves the decision of all the points at issue to defendant 1; secondly, the decision of costs is also left to defendant 1; and thirdly there is an undertaking that the plaintiffs will abide by the statement of defendant 1 concerning the decision of the case. After this document was executed, defendant 1 made a statement on oath which supported his case. He did not merely state that at the time of the oral gift the deceased was not suffering from 'marzul maut'. He went much further and stated that the oral gifts were made, that the plaintiffs were not entitled to anything except Rs. 3 monthly which was fixed for them, that the deeds of gift were genuine, and that no undue influence was exercised on the deceased. These are all matters which would have formed the subject of cross-examination if the case had been conducted in the usual manner, and it is obvious that the mere statement of a defendant that certain oral gifts were made is not a statement which would have been sufficient to convince a Court of the facts alleged. The Court accepting the application of the parties decided the case in favour of the defence and ordered that the parties should bear their own costs. This was also in accordance with the opinion of defendant 1. It is only this small point which was conceded by defendant 1 to the, plaintiffs, and the only result for his clients from the vakil of the plaintiffs entering into this arrangement was this one point. As regards the Rs. 3 due per mensem to the plaintiffs that was already mentioned in the written-statement, p. 15 para. 8. After the case was decided an application was made a week later, on 23rd May, by Mt. Akbari Begam to the effect that the proceedings of reference by Hikayat Yar Khan and the pleaders had been taken against her wish and without her knowledge and information and that she had given no instructions to Hikayat Yar Khan or her pleaders to that effect. Now this application might have been treated by the lower Court as an application for review of judgment. The lower Court stated that the vakil for the applicant did not point out under what provision of law the application could have been entertained, and only referred to the inherent powers of the Court laid down in Section 151, Civil P.C. He proceeds to say:
I have however heard the application on merits and I am of opinion that it cannot be granted. There is no proof whatever that the vakil for the applicant had not consulted her before agreeing to abide by the oath of the defendant. In the vakalatnama of Maulvi Abdur Rauf, the vakil for the plaintiff, ample powers have been given to him to bind the plaintiffs in the way he did. No doubt the word 'hasar' is not vised in the vakalatnama, but powers are given to appoint an arbitrator to file a compromise and also to verify an agreement.
28. The application was rejected. Now the lower Court did not make any enquiry in this matter and apparently by hearing the application on the merits the Court meant that the Court listened to some argument on the subject. I consider that the lower Court should have given the plaintiff an opportunity to produce evidence on the point and that it should itself have taken evidence on the point. I note that the plaint shows that Mt. Akbari Begam resides close to the Dewankhana of Bareilly and the case was one tried in the Civil Courts of Bareilly. It would therefore have been perfectly easy for the lower Court at the time of the presentation of this application on 16th May 1929, to have sent for Mt. Akbari Begam and ascertained whether she did or did not agree to abide the statement of defendant 1. In the case of pardanashin ladies a Court ought to take certain precautions. Under the Registration Act when there is a question of registration of a document by pardanashin ladies the registering officer ascertains either by the issue of a commission or personally from the pardanashin lady as to whether she understands the contents of the document and has executed the document. Why should similar precautions not be taken in the case of an application to obviously against the interest of the plaintiffs as the application of 16th May 1929? In the ruling of Basangowda Hanmantgowda v. Churchigirigowda Yogangowda (1910) 34 Bom403, there was a similar case where after the passing of a decree the defendant made an application to set aside the decree on the ground that he did not engage the pleader and had not authorised the pleader to compromise the suit. It was held that the Court had inherent power to set aside the decree and correct its own procedure when it had been misled. A reference is also made to an English authority to the same effect, Neale v. Gordon Lennox (1902) AC 465. In Jaduraj Kunwari v. Raj Kishore Deo Singh First Appeal No. 132 of 1928, decided on 24th February 1932, by a Bench of this Court, there was an offer by a pairokar of the plaintiff, who was a pardanashin lady, that she would be bound by the oath of the defendant on Ganges water. The plaintiff then filed an objection to the effect that she had not-authorised her pairokar to make any such offer. It was held by this Court that the lower Court should have enquired into the question of whether the' lady had or had not authorised her pairokar to take such action. The only difference between that case and the present case is that in that case the lady made her objection before the case was decided, and in that case there was an interval which occurred between the making of the offer by the pairokar and the statement of the defendant on oath. But in the present case there was no opportunity to the plaintiff because the application was made on 16th May 1929, the statement of defendant was taken on that date, and the case was decided on that date. There was no interval of time within which the matter could come to the knowledge of the plaintiff and she could make an objection before the statement was taken.
29. I do not consider that the plaintiff should be debarred from any remedy by the hasty procedure adopted in the present case. The question on appeal is whether the plaintiff should have an opportunity of showing that she did not authorise the procedure of her vakil, or whether she should be debarred from any such opportunity in the present case and left to her remedy, if any, by a suit to set aside the decree on the ground of fraud or other similar grounds. I think that in the present case the facts should be taken into account that the plaintiffs are pardanashin ladies, that the defendants consisted of one Sub-Inspector of police and two legal gentlemen practicing in Bareilly, and that the case heard in Bareilly may have been influenced by these considerations. The record does not show whether M. Abdur Rauf is like defendant 2 a pleader of Bareilly or whether he comes from some other place. However this is a matter which affects the merits and which should not affect the law on the point except in so far as various rulings of their Lordships of the Privy Council lay down that special precautions should be taken in regard to pardanashin ladies. Now the question is whether the procedure adopted by the lower Court was a procedure which can be justified by law. The questions which arise in regard to this are two: firstly, the general question as to whether the procedure was legal at all, and secondly, the particular question as to whether in this case if the procedure was legal, the vakil for the plaintiff was authorised by his vakalatnama or generally by the fact that he was a vakil to take such action. I shall deal firstly with the narrow question of the vakalatnama. The translation is printed on p. 11 and my learned brother has pointed out that it is not quite accurate, and I accept the corrections which he has made. There is in the vakalatnama no specific power to make an application similar to that on p. 21. The application cannot be regarded as a compromise because the application is not an adjustment of the rights of the parties in the case. Consequently the fact that there is a reference to compromise in the vakalatnama is not of very great importance. That reference however is not very clear. The actual words used are 'ikhtiyar taqarrur salsi wo sulahnama wo wasul zar.' It has been pointed out by learned Counsel for appellants that the word 'sulahnama' means a deed of compromise and not compromise. 'Authority of a deed of compromise' is a defective expression in grammar, and what was intended may have been meant either 'authority to compromise' ('ikhtiyar sulah ka hai') or 'authority to file a deed of compromise previously arrived at,' which would be 'ikhtiyar sulahnama dakhil karne ka hai.' The expression in the vakalatnama that:
We do covenant that whatever is done by the above named person shall be accepted as done by us.
is a very general expression usually occurring in such documents, and I do not consider that it can be taken to empower the person appointed by the vakalatnama as vakil to execute a document such as the document in question. In Jagapati Mudaliar v. Ekambara Mudaliar (1898) 21 Mad 274, there was a vakalatnama on p. 275 in which there was a similar expression:
Therefore I shall accept, as having been conducted by me in parson, all the acts done by you in the Court, concerning the suit.
30. But the Court held that this general expression would, not confer a right on the vakil to make a compromise without the authority of the party. I do not consider therefore that the vakalatnama will cover the action taken by the vakil in the present case. Reference was made to Sourendranath Mitra v. Tarubala Dasi , where there was a question of the powers of an advocate to compromise a suit, and it was held that a power to compromise was inherent in the position of an advocate of a High Court in India, but that no advocate has actual authority to settle a case against the express instructions of his client. But on p, 494 (of 1930 A.L.J.) it is stated:
Their Lordships desire to confine their decision on this point to the case of advocates, whatever their qualifications, admitted as such by the respective appropriate Courts in India, who derive their general authority from being briefed in a suit on behalf of a client. Where the legal representative in Court of a client derives his authority from an express written authority, such as a vakalatnama, different considerations may well arise, and in such cases their Lordships express no opinion as to the existence of any implied authority of the kind under discussion,
31. If therefore their Lordships considered that a vakil appointed by a vakalatnama did not have any inherent power to compromise apart from powers conferred by his vakalatnama, it would apparently follow that a vakil does not have, apart from his vakalatnama, any authority to bind his client by a document which goes much further than a compromise, that is, a document binding his client to have the case decided by the statement of one of the opposite party.
32. In regard to the power to refer to arbitration it has been held in a number of rulings that a pleader without special authority cannot make a reference Jaipal Tewari v. Tapeswar Tewari AIR 1917 Pat 136, Sheo Das v. Brij Nandan (1903) 7 C W N 343, Ramjiwan v. Kalicharan (1907) 29 All 429, Dwarkanath Roy v. Fanindra Nath Roy AIR 1919 Cal 232, Fanindra v. Dwarka Nath (1919) 25 C W N 832, A. I.R. 1929 Lah. 171, and A.I.R. 1924 Nag. 338. In Ramjiwan Ram v. Kali Charan Singh (1907) 29 All 429, it was held:
It is the duty of the Court itself to see that the parties have signed the application for an order of reference themselves in person, or that when the application is signed on their behalf by a pleader that that pleader is expressly authorized in writing. A vakalatnama in general terms is wholly insufficient.
33. If therefore general terms are not sufficient for power to make a reference to arbitration, why should general terms be sufficient for power to bind a client by the statement of the opposite party? There are some cases on the power of a pleader to bind his client by making a reference under the Oaths Act. In Sadashiv Rayaji v. Maruti Vithal (1890) 14 Bom 455 it was held that neither an agent nor a pleader has this power. This ruling has been quoted with approval recently in 1929 by a Bench of the Calcutta High Court in Mohammad Mahmud Choudhury v. Behary Lal : AIR1930Cal463 , (at 313 of 34 C.W.N.):
One of the cases referred to in that connexion is Sadashiv Rayaji v. Maruti Vithal (1890) 14 Bom 455, In that case it was held that an agent, holding a power-of-attorney authorizing him to act and appear for a party to a suit, cannot bring the suit to a close by offering to be bound by the oath of the opposite party in a particular form. Nor can a pleader so bind his client. The proposition laid down in that case cannot be disputed.
34. In Wasiuzzaman Khan v. Faiza Bibi (1916) 38 All 131, Tudball and Walsh, JJ., had a case in which the husband of the plaintiff holding a power of attorney from her had made an offer under the Oaths Act. Tudball, J., referred to the ruling in Sadashiva Rayaji v. Maruti Vithal (1890) 14 Bom 455 and said:
It is urged that the decision mentioned above is not correct and should not be followed....In so far as the special power-of-attorney in the present case is concerned, I have examined the terms of it carefully and find that the plaintiff gave very extensive powers to her husband, for instance, to abandon the suit as well as to compromise it. I have not the slightest doubt whatsoever that the husband as agent of the lady had full power to take the step which he did take....In the Act itself there is no language which goes to show that the word 'party' can be used only in its restricted sense and not in the wider sense....I can see no reason why a 'duly' authorized agent of a party should not make the offer contemplated in Section 9. In the present case I am satisfied that the plaintiff's husband had full power to take this step in view of the language of the power-of-attorney on the record.
35. Three points may be noticed, about this ruling. Firstly, it was not about a pleader or vakil. Secondly, it was about the Oaths Act and was based on the language of that Act. Thirdly, it laid down that the language of that particular power of attorney, which is not quoted, did give the husband full power to apply under the Oaths Act. Another point is whether the application in the present case comes under the Oaths Act. learned Counsel for the respondent when asked a direct question stated that he considered that the application did not come under the Oaths Act. But the application does not purport to be under the Oaths Act, It does not refer to a statement to be made by defendant on any special oath, or indeed on any oath at all. I agree with my learned brother in his finding that the application does not come under the Oaths Act.
36. The suggestion has been made that defendant 1 can be treated as a person coming under Section 20 of the Indian Evidence Act. But that section deals with persons to whom a party refers for information and not to a person to whom the parties refer to decide the case. The reference made to defendant 1 was that he should decide all the issues of the case and also the question of costs, and that the parties will be bound by his statement. Section 20 deals with a person to whom a reference is made, and the statement of that person is treated as an admission against the party making the reference. Section 31 states that admissions are not conclusive proof of the matters admitted, and therefore in the case of any admission under Section 20 it would be open to the party making the reference to call evidence to contradict the statement. Section 20 therefore cannot be legal authority for the application in the present case in which the condition is laid down that the statement is to be binding. There are therefore the following reasons why the application does not come under Section 20: (1) the section is for one party not for both parties; (2) the reference is for information not for decision; (3) the statement under the section is not binding. In Bishatmbhar v. Radha Kishunji : AIR1931All557 , there was a somewhat similar reference to a third party to make a statement by which the parties would be bound, which did not come under the Oaths Act, and it was held on p. 395 (of 1931 A. L.J.) that Section 20, Evidence Act, would not apply.
37. In this ruling the question was raised whether such a reference, not under the Oaths Act, is a legal method of disposing of a suit and it was held' that it was not. On p. 396 (of 1931. A.L.J.) it is stated:
Now it is clear that there are two kinds of proceedings which are allowed to parties who do. not wish their suit to be tried by a Court in the usual manner. Firstly, the parties may agree to abide by the statement on oath of some person under the Oaths Act, or secondly, the parties may make a reference to arbitration under Sch 2, Civil P.C. For the defendant-respondents it is contended that under Section 151, Civil P.C., this Court by its inherent jurisdiction should sanction a third method of procedure, that is, the method adopted by the parties in this case, and should further hold that once a reference has been made to the statement of a person to whom the parties referred, then each party to the case cannot resile from such an agreement. It is contended that the agreement to make a reference would be a legal agreement under the Contract Act, the consideration being in the case of each party that the opposite party had also made a promise to abide by the result....But...we do not consider that such an agreement binds the parties to it and prevents them from resiling from such an agreement and we do not consider that such an agreement must necessarily be specifically enforced. We do not see that any advantage would accrue from the setting up of a third method of procedure in addition to the method of Schedule 2 and the method of the Oaths Act. If the parties desire that the case should abide by the knowledge of facts possessed by some person, then it is open to the parties to make an agreement under the Oaths Act, that the case should abide by the statement on oath of that person. If on the other hand the parties desire that the case should be decided by some person instead of being decided by the Court, then it is open to the parties to have that person appointed as arbitrator under the Schedule 2....We consider that the objection of the plaintiff to the procedure in the present case is therefore well founded.
38. The question to be considered is:
Can a civil Court conduct a trial by a procedure not prescribed by the Civil Procedure Code or by any special or local law or by any other law?
39. The assumption in a number of rulings is that the parties can agree to adopt any procedure they desire, and that the agreement of the parties gives the Court jurisdiction to adopt that form of procedure. This is shown in Kesho Ram v. Pearilal AIR 1923 All 443, a single Judge ruling by Walsh, J., where there was this agreement
The vakil for the plaintiff states that the evidence of the defendant may be taken with the ordinary oath and that the suit may be decided according to that.
40. On p. 210 (of 21 A. L. J.) Walsh, J., stated:
I agree with the respondents' counsel that this is not an agreement for a special oath within the meaning of Sections 8 and 9, Oaths Act I think these sections of the Oaths Act only snow that such an agreement may be binding on the parties, even though it relates to an oath not ordinarily recognized by the procedure of the Court, provided it is an oath which the Court is permitted to administer under Section 8. It is only an argument by analogy. The argument for the appellant is that as such agreements are sanctioned by this Act, there can be nothing illegal in an agreement relating to an ordinary oath. I agree.
41. In Mithi Lal v. Sri Lal AIR 1924 All 126, there is another single Judge ruling by Daniels, J., in which the defendant agreed to be bound by the oath of the plaintiff. Before the statement of plaintiff was taken, the defendant wanted to resile from the application, but this was not allowed by the Court. It was held that the agreement was valid though not under the Oaths Act. Both these rulings refer to Muhammad Asghar Ali Khan v. Imtiaz Ali (1898) AWN 200. In this case the defendant made an application to the Munsif stating
In the suit the defendant will abide by the statement, whatever it may be, which the plaintiff may make on oath as prescribed by law touching his claim. The defendant has no evidence to produce. The suit may be disposed of on the defendant's statement.
42. The plaintiff stated 'That claim is true'. It was argued that the case did not come under the Oaths Act. Blair, J., said:
It seems to me unnecessary to decide the point, for the appellate Court trying the case had before it no other evidence than that which is contained in the plaintiff's statement, and must therefore have regarded the undertaking of thedefendant to be bound by the plaintiff's statement as an admission from which he could not escape. It might, and probably would, have had the effect of preventing the plaintiff from calling other evidence to establish his case.
43. Aikman, J., stated:
I think a Court of justice should hold the defendant bound by his offer which was accepted by the plaintiff who complied strictly with his conditions.
44. In none of these ruling was the point raised that a civil Court must follow the procedure of the Civil P.C., in conducting a trial, and that the agreement of parties does not give the Court jurisdiction toadopt a, different procedure. Act 5 of 1908 is entitled
An Act to consolidate and amend the laws relating to the procedure of the Courts of civil judicature.
45. This indicates that the Code deals exhaustively with the subject, as the laws dealing with civil procedure are to be consolidated into one Code. Is there any section of the Code which allows civil Courts to adopt a procedure other than the procedure laid down in the Code? There is such a section. It is Section 4(1). -Revenue Courts are provided for in Section 5, and in Section 4(2) there is exemption from the Code for proceedings of a landholder in recovery of rent (by distraint). For civil Courts the section which allows the adoption of other procedure is Section 4(1), which states:
In the absence of any specific provision to the contrary, nothing in this Coda shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other law for the time being in force.
46. It is clear that Section 4(1) is intended to be exhaustive, and to enumerate all the sources from which a civil Court may derive authority to adopt another form of procedure. Agreement of parties is not mentioned in Section 4(1) as a source from which the civil Court may derive, authority to adopt another form of procedure. Therefore agreement of parties is not a source from which a civil Court may derive authority to adopt another form of procedure. In my opinion Section 4(1) is a complete answer to the argument of Walsh, J., in Kesho Ram v. Piari Lal AIR 1923 All 443, already quoted, that there is nothing illegal in such agreements. In my view the agreement would defeat the provisions of Section 4(1), of the Code of Civil Procedure, as Section 4(1) does not except agreement as authority for adoption of a different form of civil procedure. The agreement would also defeat those part of the Code which provide for the ordinary procedure of a civil Court conducting a trial. Those parts are, Section 33:
The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow.
47. That is, the case must be heard, not merely a statement taken by which the other party is bound, and where he has apparently agreed not to cross-examine.
48. Order 18, Rule 2(1), states:
On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which be is bound to prove.
49. In the present case the onus of proof was on the defendants, as they had to prove various alleged transfers and oral gifts of the deceased to them. The correct procedure would have been for defendants to produce evidence in support of these issues. Instead of producing evidence,, the defence merely produced a defendant to make a statement on oath which, the plaintiff's vakil had agreed to treat as binding, and in regard to which the right of cross-examination to show that the statement was untrue had been given up. Cross-examination is provided for in Section 138, Evidence Act. In Order 20, Rule 5, it is provided that
the Court shall state its finding or decision, with the reasons therefore upon each separate issue.
50. That is, the Court is to state its finding or decision, and not the finding or decision of someone else. Here by the agreement
We...leave the decision of all the points at issue in this case with costs on the statement of Munshi Rahmat Husain, defendant 1. We shall abide by the statement of the aforesaid gentleman concerning the decision of the said case.
51. This shows that the case was to be decided by defendant 1 and not by the the Court. The Court therefore abdicated its position and put defendant 1 in its place as the person to give a decision, even on the question of costs. Such a decision by another person can only be made by an arbitrator. But the provisions of the Code in regard to arbitrators is strict. In Section 89(1) it is provided:
Save in so far as is otherwise provided by the Arbitration Act, 1899, or by any other law for the time being in force, all references to arbitration whether by an order in suit or otherwise, and all proceedings thereunder, shall be governed by the provision contained in Schedule 2.
52. I consider that the agreement would defeat the provisions of the Code of Civil Procedure which I have set forth. It would defeat those provisions because it sets up another form of procedure and because it relieves the defendants of their onus of producing evidence which would be subjected to cross-examination to test its truth, and because it places defendant 1 in the position of the Court to give a decision on all the issues, and also on the question of costs. The agreement therefore would deleat these provisions of the Code of Civil Procedure.
53. Section 23, Contract Act, provides:
The consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law....In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
54. I consider that the agreement comes under the parts quoted of Section 23 as an agreement which would defeat the provisions quoted of the Code of Civil Procedure, and that the agreement is therefore void under Section 23. I also consider that the object of the agreement is forbidden by law, because Section 4(1), Civil P.C., shows that the procedure of the Code is not to be altered by agreement. For this reason also the agreement would be void under Section 23, Contract Act. For the reasons which I have given I consider that the appeal should be allowed and the decree should be set aside, and the case should be remanded to the lower Court for disposal according to law.
55. As the Judges composing this Bench differ on questions of law arising in the case, it should be laid before the Hon'ble Chief Justice for reference to a Single Judge or larger Bench for the determination of the following questions and disposal of the case:
(1) Can the parties to a suit agree, apart from the Indian Oaths Act, that they will abide by the statement of a witness, including one who is a party to the suit and can they 'leave the decision of all points' including costs arising in the case to be according to his statement? (2) Did the 'vakalatnama' in favour of Mr. Abdur Rauf authorise him to make the application dated 16th May 1929?
(3) Is it open to the appellant in the present appeal, which is from the original decree, to call in question the propriety of action taken by the lower Court on the subsequent application, dated 22nd May 1929; and if so, whether an opportunity should have been given to the plaintiffs to produce evidence to prove that the vakil had not been authorised to make the application dated 16th May 1929?