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Sundar Sahu Gountia and ors. Vs. Chamra Sahu Gountia and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 13 of 1952
Judge
Reported inAIR1954Ori80
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 23, Rule 3; Contract Act, 1872 - Sections 2 and 25; Hindu Law
AppellantSundar Sahu Gountia and ors.
RespondentChamra Sahu Gountia and ors.
Appellant AdvocateG.K. Misra, Adv.
Respondent AdvocateB. Mohapatra and ;S.C. Palit, Advs.
DispositionAppeal dismissed
Cases ReferredKomapalem v. Perota
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....panigrahi, c.j. 1. this is an appeal directed against an order passed by the subordinate judge, sambalpur under order 23, rule 3, c. p. c., refusing to record an adjustment of title suit no. 28 of 1950, which is pending on his file.2. the facts giving rise to this litigation are that the plaintiff chamra sahu, defendant no. 1 sundar sahu, and defendant no. 9 bhikarycharan sahu are uterine brothers. it is said that ever since the year 1949 there has been disputes going on between the brothers for a partition of their family properties. several attempts appear to have been made for an amicable partition of the properties, all of which however failed on account of the intransigence of one party or another. the plaintiff, therefore, filed a suit for partition on 7-7-1950 in the court of the.....
Judgment:

Panigrahi, C.J.

1. This is an appeal directed against an order passed by the subordinate Judge, Sambalpur under Order 23, Rule 3, C. P. C., refusing to record an adjustment of Title Suit No. 28 of 1950, which is pending on his file.

2. The facts giving rise to this litigation are that the plaintiff Chamra Sahu, defendant No. 1 Sundar Sahu, and defendant No. 9 Bhikarycharan Sahu are uterine brothers. It is said that ever since the year 1949 there has been disputes going on between the brothers for a partition of their family properties. Several attempts appear to have been made for an amicable partition of the properties, all of which however failed on account of the intransigence of one party or another. The plaintiff, therefore, filed a suit for partition on 7-7-1950 in the Court of the Subordinate Judge, Sambalpur, against defendant 1 and the members of his branch, defendant 9 and his branch, and impleaded defendants 12 to 16, who are his remote cousins, as their names have been jointly recorded in some of the revenue papers. While the suit was pending and before the written statement was filed defendants 1 and 9 filed a petition under Order 23, Rule 3, Civil P. C. on 3-3-1951 alleging that the suit had been adjusted out of Court and that the compromise arrived at between the parties should be recorded and the suit disposed of accordingly.

3. The admitted facts are that on 28-2-1949 there was an agreement, executed by the brothers Ext. C whereby the properties were roughly divided into five shares of which the plaintiff was given one. This agreement, however, does not purport to be a record of a completed partition of all the properties, but is only a rough memorandum indicating which party will take what share, in some of the properties. It is also admitted that, tinder this agreement Ext. C, the plaintiff was entitled only to one-fifth share in the family properties. However, the agreement was not given effect to, nor were the properties divided in pursuance of the agreement. The plaintiff's complaint is that the defendants wanted to grab a larger share of the income of the joint family properties, and in spite of his protests cultivated more than what should normally fall to their share. This led to the institution of proceedings under Section 145, 'Cr. P. C.

During the pendency of these proceedings the parties agreed to have their shares divided through the intervention of arbitrators. But this did not bear any fruit and so the plaintiff filed his suit for partition. It is also common ground that on 21-1-51 the parties again entered into an agreement (Ext. A) under which the allotments made under the earlier agreement (Ext. C) were slightly modified so as to give the plaintiff one-fourth share in some of the joint family properties and the proceedings under Section 145, Cr. P. C., were dropped. At the time of this subsequent agreement (Ext. A) there were two proceedings pending under Section 145, Cr. P. C., in Criminal Case No. 138 of 1950 and Criminal Case No. 161 of 1950. It is the validity of this agreement (Ext. A) that forms the subject-matter of the dispute between the parties.

4. After an exhaustive analysis of the circumstances under which Ext. C was executed, the learned Subordinate Judge held that Ext. C of the year 1949 was incomplete and indefinite and therefore Ext. A which is only a modified 'version of Ext. C, also suffered from the same infirmity. He further held that both Exts. A and C were inadmissible in evidence for the reason that they were not registered. On the merits, he held that the arrangement by which the plaintiff was given one-fifth share in the Ganghati properties --instead of one-third share to which he was legitimately entitled -- was so unfair and unconscionable, that no court would give effect to it. He also held that defendant 1 being the Chairman of the District Board, Sambalpur, was in a position to dominate the will of the plaintiff.

Another fact that emerges from the evidence is that the plaintiff was restrained from moving about and was confined to his village by an order passed by the Sub-divisional Officer, Bargarh. The house allotted to the plaintiff's share had by then been gutted. All these circumstances were sufficient, in the opinion of the learned Subordinate Judge, to show that the plaintiff was in the position of an oppressed party and consequently in considerable mental distress and that, therefore, there was no mutuality between the parties in arriving at an agreement in the proceedings under Section 145, Cr. P. C. In this view of the case the learned Subordinate Judge passed an order refusing to record the alleged settlement between the parties. The defendants have come up in appeal against this order.

5. Learned counsel for the appellants contends that there was no allegation of any undue influence having been brought to bear on the plaintiff and that the facts proved are not sufficient to invalidate the agreement on the ground of undue influence. Secondly, he contends that the view taken by the learned Subordinate Judge that Exts. A and C were inadmissible in evidence for want of registration, Is erroneous. Thirdly he contends that Exts. A and C are no more than family settlements and should be respected as such. There is much force in the first two contentions and we intimated to learned counsel that we were not very much impressed by the reasoning adopted by the Court below on these matters.

The only point, therefore, that has been very strenuously urged before us is the third contention, namely, whether Ext. A is to be regarded as an adjustment of the suit either in whole or in part within the meaning of Order 23, Rule 3, Civil P. C., and whether it may be regarded as a family settlement and as an adjustment of the suit. Several cases were cited before us in support of this contention and we were asked to uphold Ext. A as a valid family settlement, as the motive and consideration for such an agreement is said to be the preservation of the family property, the maintenance of the family honour, and the avoidance of future disputes.

6. The leading English case on the subject of family arrangement which has been followed by Indian Courts is -- 'Williams v. Williams', (1867) 2 Ch 294 (A). In that case John Williams died leaving his two sons John and Samuel and his widow surviving him. After his death a testamentary paper, signed by him, was found, but as it had not been attested probate was refused. The father having died intestate and having left real estates of different tenures, the elder son John Williams became exclusively entitled to the so cage property and the younger son, Samuel, became exclusively entitled to the borough English portion. The socage portion, however, was much larger than the borough English portion. The gravelkind tenure was equally divisible between the two sons and the personal estate was divisible between the widow and the two sons in equal shares. The widow was also entitled to the dower and free bench out of the real estates.

Shortly after probate had been refused, the two brothers met and agreed that the invalidity of the' will should make no difference between them and the property should be not thine, or mine, but ours. For twenty years the tannery business left by their father was carried on jointly by the two brothers, but upon some disagreement that subsequently arose between them, the appellant John Williams served a notice of dissolution of the partnership and the partnership was brought to an end. It was found that the partnership had continued as a joint business for twenty years. The widow, namely the mother of the parties, had abided by the agreement and never asserted her legal rights, either in the real or personal properties of her deceased husband. On these facts, Lord Chelmsford L. C. held:

'There was, here, no doubtful right to be compromised, no dispute between the brothers which was to be set at rest, no honour of the family involved. The appellant was merely prompted by respect for his father's intention and by his affection for his brother -- both most excellent and praiseworthy motives but Scarcely sufficient- to constitute such a consideration as to convert an act of kindness into a binding agreement.'

It was found,, however, that there was quite sufficient consideration to prevent its being a mere voluntary agreement and that the Court will not be disposed to scan with much nicety the amount of consideration. The consideration for the agreement, in that case, was found to be that Samuel brought the Borough English portion of the property to which he was entitled, into a common stock and left his share of the stock-in-trade in the business, and agreed to carry on business jointly instead of breaking up the concern. A further consideration that was found was that the widow was a party to the whole arrangement and the consideration moving from her was taken into account. The Lord Chancellor further observed:

'It seems to me that if valuable consideration is required in this case, to make the family arrangement binding, it is sufficiently provided by the Widow agreeing to become a party to it and relinquishing her rights for the purpose of carrying it out.'

Turner L. J. rested his judgment on the ground that the arrangement was made between the brothers for the preservation of the common property. It would, therefore, appear that, in order to give validity to a family arrangement, the existence of dispute or of a doubtful right to be compromised, is not a 'sine qua non'. But there must be some consideration to make the family arrangement binding on the parties. That consideration may proceed from a third party as from the widow in the case cited above. The adequacy of the consideration will not be minutely scrutinized by the Court, but the motive which actuated the parties is an important factor to be taken into consideration. There must be mutuality and the agreement must be arrived at in a spirit of 'give and take'. But where an agreement appears to be brought about, not with the free consent of the parties but under compulsion, and there is want of mutuality between them, equity would not favour such an agreement. Forbearance to sue is always regarded as a good consideration for a valid contract.

Thus where a party makes a claim which he believes to be true and forbears to sue, his forbearance will constitute a good consideration. But if a person makes a claim which he knows to be unfounded and seeks, through a compromise, to derive an advantage under it in that case his conduct would be fraudulent -- 'Callisher v. Bisehoffsheim', (1870) 5 QB 449 (B). The essence of the matter is that to make a compromise of any value the parties must be at an arm's length, on equal terms, with equal knowledge, and with sufficient advice and protection -- 'See Moxon v. Payne', (1873) 8 Ch A 881 (C),

7. This is also the view adopted in the Indian Courts and the cases in the books are legion.

8. In -- 'Muhammad Imam Ali Khan v. Sardar Hussain Khan', 25 Ind App 161 (P C) (D); the plaintiff made an application to the revenue authorities to record his uncle's name in the Lambardari Register, but subsequently repudiated it. The question arose whether that document constituted a valid family arrangement. The mutation operated as a transfer but as no consideration had been given by the defendant the decree in favour of the plaintiff was affirmed by the Judicial Committee. In that case, there was an admission of the title made by the plaintiff, but their Lordships observed:

'A gratuitous admission may be withdrawn, unless there is some obligation not to withdraw it. If then there is no transfer, no estoppel, no bar by time, no trust -- why should not the plaintiff assert his legal rights, whatever he may, in ignorance of the facts or in deference to his uncle, or for any other cause not injurious to the defendant, have admitted?'

9. It is also well established that a family arrangement affecting a division of the family properties which has been carried out and acted! upon for sometime would be held as binding between the parties. Cases of this type are to be found in -- 'Helan Dasi v. Durga Das', 4 Cal LJ 323 (E) and -- 'Satyakumar Banerjee v. Satya kirpal Banerjee', 10 Cal LJ 503 (F).

In -- 'Hemendranath v. Upendra Narain', AIR 1916 Cal 829 (FB) (G); there was a long standing feud which had harassed the members of the family for more than a generation and had led to litigation between two branches of the family. A permanent lease executed by the limited, owner in settlement of the dispute was sought to be challenged. Mookherji J., while upholding the validity of the lease as a family arrangement, observed:

'We are not now concerned with the question how and when the family arrangement may be set aside on the ground of mistake, inequality of position, undue influence, coercion, fraud, or other similar grounds, for no such vitiating fact is alleged or proved in this case.'

The settlement was upheld on the ground that a qualified owner can bona fide effect a settlement of the matter in controversy, and that she is not bound, at her peril, to pursue the litigation in respect of the estate in her hands.

In -- 'Sureshwar v. Mst. Mahesh Rani', AIR 1921 PC 107 (H); there was an arrangement by which the reversioner, as a consideration for the surrender of the estate by a widow, promised to convey a portion of the property to a nominee of the lady surrendering. This might well fall under the description of a 'device to divide the estate' but Lord Dunedin held that it was a bona fide transaction and that there was 'a situation of a contest under which, if the decision were one way, the estate was carried to the daughters away from the family, and a litigation in the course of which the estate would probably be much diminished. This situation made it a perfectly good consideration for the lady, in order to avoid these results, to consent to give up her own rights by surrender. On the other hand it was a good consideration for the reversioner to get rid of the win, and in a question with the daughters who would take all by the will, to agree to give them a half of the property'. The Board, therefore, held that the arrangements of the compromise would not be stigmatised as a device to divide the estate between the surrendering lady to the nearest reversioner and that the arrangement was bona fide.

On the other 'side of the line is a case in --'Mansingh v. Nawalakhbati', AIR 1926 PC 2 (I) where two Hindu widows who were in possession of a joint widow's estate were declared to be 'disqualified proprietors under the Court of Wards Act and the Court of Wards took charge of the property. The widows, without the sanction of the Court of Wards, executed a deed by which they purported to surrender all their rights in the property to the two grandsons of their deceased husband as next heirs, the grandsons agreeing to pay to the widows Rs. 2000/- per month for maintenance. The Board held the surrender to be void as being in contravention of Section 60, Court of Wards Act, but observed at the same time that the deed could have been declared void independently of Section 60, Court of Wards Act, as there was no dispute which could be said to have been settled by the surrender.

It is, therefore, of the essence of the validity of such contracts that there should be a bona fide settlement of a dispute arising out of conflicting claims to property -- a, situation of contest which is avoided by the policy of 'give &, take' otherwise all transfers or surrenders will pass under the cloak of a 'family arrangement' See -- 'Sashi Kantha v. Promode Chandra', AIR 1932 Cal 600 (J).

In the latest case reported in --'Bularama Sastri v. Vasudeva Sastri', AIR 1948 PC 7 (K) the appellant was adopted by a widow named Janaki-amma who had a widow's interest in considerable properties left by her husband. The dispute between him and Janakiamma had been serious & had been going on for some time. Janakiamma had also saved substantial sums, part of which she had invested in business. Respondent Vasudeva Sastry was Janakiamma's brother's son, and had been brought up by Janakiamma, and had lived on terms of affection with her. There were disputes between the adopted son and the widow, one asserting and the other denying that her savings belonged to the adopted son.

Before her death, the widow made a will in which she expressly asserted her right to certain sums of money deposited in the business and disposed it of in favour of her nephew, the respondent who was made the executor and the beneficiary. After her death, disputes having arisen between the adopted son and the nephew of the widow, the parties entered into an agreement on a compromise arrived at by them, for the settlement of all outstanding disputes in relation to the estate of Janakiamma whereby two-thirds of the cash was to be taken by the nephew of Janakiamma and one-third to be given to the appellant. The question was whether the nephew had a bona fide claim to the property which was the subject-matter of the agreement of compromise. Their Lordships held that he had such a claim and that as this was an honest claim it supported the agreement of compromise.

In -- 'Ramakrishana Raju v. Narayana Raju', AIR 1949 PC 165 (L), an exchange of properties already partitioned among the brothers was upheld as a fair compromise brought about in order to make up a family quarrel, and that itself was held to be some consideration for what was done.

It appears to me, on a reading of these cases, that there should be a bona fide dispute and a fair adjustment of the conflicting claims, in order that an agreement may be upheld as a family arrangement.

10. But what is a 'bona fide dispute'. That expression has been used in many decisions, but has nowhere been defined or explained. The only case brought to our notice is -- 'Sidh Gopal v. Beharilal', AIR 1928 All 65 (M), where it was held that a dispute where each party is contending for an advantage for himself in his own right is not a bona fide dispute. If a person makes a claim and intends to press it by litigation or otherwise, it may be a bona fide dispute though the claim itself may be doubtful. In that case the dispute was between a brother and nephew of the deceased person over a question as to whether the deceased was joint or separate at the time of his death. The castemen decided that the property should be divided equally between them in order to avoid litigation. Accordingly, the names of the claimants were put down as the heirs of the deceased persons, in the revenue papers, and this was acted upon for four years- In those circumstances it was held that the dispute was a bona fide one and the settlement was made for the benefit of the family generally.

The case of -- 'Pokhar Singh v. Mst. Dulari', AIR 1930 All 687 (N), was also one in which there was a family arrangement between a widow and the next presumptive reversioners and that arrangement had been acted upon for sometime before the dispute arose. It is true that there was some sort of a dispute in these cases. But neither the existence of a family dispute nor the existence of a doubtful claim is essential to validate a family arrangement. The essence of the matter is that there should be some kind of consideration before an agreement in respect of the division of a family property can be held to be a valid family arrangement though, in such cases, the Court will not scrutinise the quantum of consideration with meticulous nicety--See --'Mt. Dasodia v. Gaya Prasad', AIR 1943 All 101 (PB) (O).

Where there is no question as to the devolution of the property, nor any disputed right, a family arrangement can be upheld only if there is some consideration for the arrangement other than love and affection -- See 'Halsbury's Laws of England, Hailsham, Edition, Vol. XV, page 4 para 4. This statement of the law in Halsbury is based upon the observations of Lord Chelmsford in --'Williams v. Williams (A)', (which I have already quoted) to the effect that there was no doubtful right in that case which required to be compromised, no disputes between the brothers that had to be settled and no honour of the family involved, but that there was a consideration proceeding from the younger brother, Samuel, and from the mother of the parties that formed the basis of the arrangement. But where there is a bona fide dispute it may itself constitute a good consideration for the parties to the settlement although that is not the only consideration which may form the basis of that settlement.

11. A 'family arrangement' has been defined in 'Halsbury, Vol. XV, Hailsham Edition, Page 2 paragraph 2 as :

'a transaction between members of the same family generally which is for the benefit of the family as, for example, one which tends to the preservation of the family property, to the peace or security of the family, or to the saving of the honour of the family.'

In all these cases, it will be noticed that the Courts are anxious to see whether there was some consideration for the agreement, quite apart from the motive for the family arrangement. The adequacy or otherwise of the consideration is not a matter for judicial determination, but where the consideration has been grossly or shockingly inadequate the inadequacy will be treated as evidence that the consent was not a real consent or that the party was the victim of some imposition.

12. The principles deducible from a consideration of these authorities may be summarised as follows :

(i) To constitute a valid family arrangement the transaction should be one which is for the I benefit of the family generally.

(ii) The consideration for the arrangement may be preservation of the family property, preservation of the peace and honour of the family, or the avoidance of litigation.

(iii) It is not essential that there should be a doubtful claim, or a disputed right to be compromised. If there is one, the settlement may be upheld if it is founded on a reciprocal 'give and take and there is mutuality between the parties, in the one surrendering his right and in the other forbearing to sue. In such cases the Court will not too nicely scrutinise the adequacy of the consideration moving from one party to the other.

(iv) In any case, if such an arrangement has been acted upon the Courts will give effect to it on the ground of estoppel or limitation and the like.

(v) A family arrangement may also be upheld if the consideration moves from a third party.

(vi) If it appears to the Court that one party has taken undue advantage of the helplessness of the other and there is no sacrifice of any right or interest, the agreement is unilateral and is devoid of consideration.

(vii) The consent of the parties should be freely given to the arrangement and gross inadequacy of consideration may be a determining factor in judging whether the consent was freely given.

(viii) If the agreement involves or implies an injury to the person or property of one of the parties, the Courts retain an inherent power to prevent injustice being done.

13. I now ask : what is the consideration in this case, for the agreement by the plaintiff to forego a substantial part of his share so as to make the compromise binding upon him? Learned counsel for the appellants seeks to support it on the ground of preserving the family property and maintaining the family honour. The mere fact that a property is partitioned among several brothers does not destroy the property. The family property is still intact, but only remains separate in the hands of the different brothers. There can, therefore, be no question of preserving the family property. Nor am I convinced that any question of family honour is involved in the case so as to justify a surrender by the plaintiff of a portion of his rightful share. It is nobody's case that the legitimacy of any of the parties to the dispute was involved. No question of family honour was ever raised. It was then contended that peace in the family could not have been maintained but for the compromise. If one of the parties in adjustment seeks to disturb the peace and wants to retain an advantage derived by himself under the contract, the contract is unilateral and it cannot be said that there is any consideration moving from him to support it. If, as has been alleged the defendants knew that some lands were more valuable than others and refused to give a share to the plaintiff there is no consideration which can be said to have moved from him, no sacrifice, & no forbearance which would support an arrangement by the plaintiff. It could only be based on the ground that the defendants promised to abstain from disturbing the possession of the plaintiff or the peace of the family, on condition of their receiving a larger snare than they were entitled to. There is no sacrifice of any interest or right. I am, therefore, bound to hold that the agreement is not supported by any consideration past or present. It is a settled principle of law that a promise to do a thing or the actual doing of it will not be a good consideration, if it is a thing which the party is already bound to do, either by the general law or by a subsisting contract with the other party. For instance, a promise by A to B to do something which B can already call upon him to do, can, in the contemplation of law, produce no fresh advantage to B or detriment to A. In the instant case, the plaintiff was entitled, under the Hindu law, to call upon the defendants to partition the properties and give him one-third share. But by the arrangement under Ext. C he gets a smaller share than he is entitled to and makes a virtual gift of the balance of his share to his brothers. In such a case the Court must view the transaction with jealousy and anxiously interpose its protection to guard the party from the exercise of unnatural influence by his brothers who are stronger than he. Where a son, without consideration, gives up valuable rights to his father, the doctrine of family arrangement does not apply --'Savery v. King', (1856) 5 HLC 627 at p. 657 (P). In such cases, undue influence may be inferred when the benefit to the defendant is such as he has no right to claim, no natural or moral claim to it, and the grantor has no rational motive to make the grant. The evidence discloses that them was marked inequality between the parties, in social position as well as in intelligence, and the compromise arose out of the insistence of one of them and was of such a nature as to put the plaintiff, to some extent, in the power of the other. In such a case the Court is bound to give weight to the suspicious circumstances attending the conclusion of the contract, and will be more exacting in demanding a satisfactory explanation as to why the plaintiff gave up a substantial portion of his share. Section 25, explanation (2), Contract Act, lays down the, true doctrine in such cases :

'An agreement to which the consent of the promisor is not freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given.'

If the parties had come to court for specific performance of the contract, the Court has the discretion not to direct specific performance in cases where it would be highly unreasonable to do so. In such cases, therefore, it is well settled that if inadequacy of the consideration is such as to shock the conscience specific performance will be refused. From whatever angle you view it, the promise of the plaintiff to surrender a part of his birth right does not appear to be supported by any consideration of equity or fairness.

14. The question, then, is whether the Court is bound to record such an agreement under Order 23, Rule 3, Civil P. C., as a family settlement, without regard to the adequacy or otherwise of the consideration for the compromise.

Order 23, Rule 3, Civil P. C., runs as follows :

'Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise, or satisfaction, to be recorded, and shall pass a decree in accordance therewith.'

The rule contemplates three things : (i) that it is proved that the suit has been adjusted wholly or in part; (ii) that the adjustment should have been brought about by a lawful agreement or compromise and (iii) that the plaintiff should be satisfied that there was a complete agreement amounting to an adjustment either in whole or in part. If these are proved, the Court shall order such an agreement to be recorded and pass a decree in accordance therewith. The rule, therefore, presupposes that there must be a completed agreement amounting to an adjustment, in whole or in part, of the suit itself. But where an agreement remains executory, or merely prescribes a procedure for the adjustment of the suit, there cannot be said to be a completed agreement. The agreement in question, Ext. A has to be examined in this light.

15. Ext. A runs as follows :

'The parties have compromised as follows. There is no apprehension of a breach of the peace. Possession may be given in accordance with the terms of the compromise. The dispute between us regarding partition of property and the disputes in the village and the disturbance to peace have been settled by us.

TERMS.

(1) It is settled that each of the three brothers shall contribute Rs. 1000/- for the construction of the village temple and the villagers shall contribute the rest and help in its construction.

(2) The partition list which had been prepared on 28-2-49 in the presence of respectable people (and which is marked as Ext. C in this case) is modified as follows :

(a) Item 8 of the list relating to the lands in mouzas Tezgula is altered in respect of the second and third shares, the third share in Choraswall Talaratala is allotted to the second share and Baditala and Aintapalli which had been allotted to the second share, is allotted to the third share.

(b) The lands in mouza Ganghati have been divided into three shares, out of which one share had been given to Chamra Gountia and one share to Sundar and Bhikary Charan Gountia. It is now settled that that property shall be divided into four shares and one share shall be given to Chamra and the other three, will be taken by Sundar and Bhikary Charan Gountia.

(c) The six annas gountiayi right in Tezgula shall be enjoyed equally.

(d) The one anna gountiayayi right in Rai Suba is given to Chamra Gountia and the One-fourth share in the Ganghati gountiyayi right is given to the plaintiff and the balance to the defendants.

(e) The court-fee incurred by Chamra Gountia in the partition suit in the Subordinate Judge's Court shall be borne by the plaintiff and defendants 1 and 9 equally.

(f) The crops attached in the proceedings under Section 145, Cr. P. C., shall be taken by Sundar Gountia and Bhikary Charan Gountia.

(g) The plots indicated in the partition list of 28-2-49 and in Clause (2) (a) of this agreement, will be localised through the Patwari engaged by the parties and their numbers determined and the plans got prepared. The uncultivated lands of mouza Tezgula are not mentioned in the list of 28-2-49. They will be divided equally in three shares between the parties.

(h) In accordance with the settlement of today the parties shall have, each, his share determined in accordance with the plot numbers and the area, shall get the plans prepared, and shall file a compromise in the Court of the Subordinate Judge.'

It will be seen on a plain reading of the contents of this document that there has not been any adjustment of the suit as such, except that the plaintiff has been allotted one-fourth instead of one-fifth share in mouza Ganghati. In respect of the suit itself, all that the parties agreed to is that they would get their shares localised with reference to the plot numbers of the area and get plans prepared through a Patwari, and then file a compromise in the Subordinate Judge's court. It is not a case of a suit having been adjusted as contemplated in Rule 3 of Order 23, Civil P. C. The agreement contemplates something to be done by the parties through a Patwari and then seeks to take the suit completely out of the control of the Court. If any of the parties resiles from the agreement or neglects to perform its terms the agreement can only be enforced by a separate suit. In such a situation, the Court is helpless in executing the agreement even if it were to record the compromise and incorporate it in a decree. Apart from the question whether the agreement is lawful, the Court is bound to consider whether it has the power to refuse to record an agreement which is bound to result in injustice and lead to multiplicity of proceedings. Undoubtedly, the words of the rule do not, in terms, appear to confer a discretion on the Court, but it would seem from an observation of the Judicial Committee in -- 'Sourendra Nath v. Tarubala Dasi', AIR 1930 PC 158 at pp. 162-163 (Q), that the Courts retain an inherent power not to allow their proceedings to be used to work substantial injustice. Reference may also be made to the decision of the House of Lords in -- 'Neale v. Gordon Lennox', 1902 AC 465 (R). There have been several Indian decisions also which go to show that in such circumstances the Court is entitled to refuse to record a compromise if it does not work out an adjustment of the suit. In -- 'Rupchand v. Janki Bai', AIR 1926 Bom 24 (S), the agreement was that the appeal in the High Court should continue to its normal end and that whatever decree it may ultimately make, should be replaced by the private arrangement between the parties. The Court was of opinion that the suit had not been adjusted by this agreement. The case in -- 'Haridas v. Ramdas', AIR 1931 Cal 205 (T), is very much like the case before us. The parties filed a petition on 20-11-25 asking for an adjournment on the ground that they proposed to settle the suit. By the terms of the agreement, the plaintiff was to execute a kebala in favour of the defendant in respect of his share of the property and the defendant was to execute a kebala in favour of the plaintiff in respect of his share mentioned in para 2 of the petition, and the suit properties were to be thus mutually exchanged by the kebalas. Then, the last clause was that the parties will complete everything by 'Thursday next'. Rankin C. J. posed the question thus :

'The case being adjourned for those reasons until Thursday, the question is what was the bargain between the parties. Did the parties mean to commit themselves to the bargain, as it was stated on 20th November, or did they mean to wait till Thursday and then have a completed settlement -- the kebalas exchanged and everything finished, and nothing to do by execution of compromises,' execution of solinamas but a complete, clean and final settlement -- each person having a declaration, by a kebala, to show what he had to get? It is abundantly clear to my mind that the intention was the latter. It was not intended that they agreed, by the solinama, to something and that the parties were to be remitted from the process of execution, to compel the performance of each kebala by the other. When Thursday came it is perfectly certain that the parties had not executed their respective kebalas.'

It was held that the plaintiff was entitled, if he chose, to resile from the contract as it was not a completed agreement and there had been no adjustment of the suit. The view taken by the Patna High Court is much to the same effect. In -- 'Jai Gobind v. Bagal', AIR 1950 Pat 445 (U), the parties had only agreed to abide by the award of arbitrators and it was held that the matter had not proceeded beyond the admission of an agreement contemplated and that the stage of adjustment of the claim had not been reached. In the Full Bench case reported in -- 'Mt. Akbari Begum v. Rahmat Husain', AIR 1933 All 861 at p 880 (SB) (V), Sulaiman C. J. reiterated the same principle:

'Strictly speaking, an agreement is not identical with a compromise of the suit and may amount to a mere contract but as no decree can be passed in terms of a mere contract to abide by the statement of a third person, I am prepared to hold that there can be no adjustment of the suit by such a contract until the statement has been made.'

16. The expression 'adjustment of a suit' occurring in Order 23, Rule 3, Civil P. C., corresponding to Section 98, old Civil P. C., 1859, came up for interpretation in -- 'Komapalem v. Perota', 4 Mad HCR 423 (W), where their Lordships observed that that section provided that if a suit shall be adjusted by mutual agreement or compromise, such agreement or compromise shall be recorded and the suit shall be disposed of in accordance therewith. The question is whether in the instant case, the suit is to be regarded as having been adjusted by mutual agreement or compromise so that it can be disposed of in accordance therewith. In the Madras case the parties filed an agreement in Court that the suit should be dismissed if the second defendant took a special oath. The second defendant refused to take the oath and the commissioner appointed to administer the oath reported accordingly. Thereupon the trial court passed a decree in favour of the plaintiff. Their Lordships held that the agreement did not amount to an adjustment of the suit and said :

'We think that what is meant by this language is that the parties should agree upon some compromise respecting the subject-matter of the suit which is capable of being embodied in a decree whereby the suit would be disposed of.'

17. If I am right so far in interpreting these decisions, I must hold that the learned Subordinate Judge was right in, his view that Ext. A was incomplete and indefinite and could not, therefore, be regarded as an adjustment of the suit.

18. But apart from incompleteness, the agreement Ext. A suffers from several other infirmities which prevent its being treated as an adjustment of the suit. There are several minors arrayed as party-defendants in the suit and Ext. A does not purport to have been executed on their behalf. The plaintiff also impleaded his cosharers, as some of the bhogra and raiyati lands stood recorded jointly in their names; The agreement is not signed by these defendants 12-16, nor is there any prayer that the suit should be disposed of in terms of that agreement. The only prayer in exhibit A appears in the very opening words of the document to the effect that 'possession may be ordered in terms of the compromise'. There is therefore no escape from the conclusion that Ext. A purported to dispose of only the miscellaneous proceedings pending before the Magistrate and contemplated that the parties would amicably settle their civil suit also. I must accordingly hold that Ext. A is ineffective as a record of an adjustment of the suit either in whole or in, part.

19. It is undoubtedly true, as has been, contended by the appellants, that the mere fact that the plaintiff gets a smaller share than he is legally entitled to, will not make the agreement unlawful if it is otherwise lawful. But as I have pointed out above if the settlement is the result of an inequality of position, undue influence or coercion, such as would be sufficient in law to vitiate it, then it cannot be said that there is mutuality between the parties or that consent is freely given. Section 23, Contract Act, says that the consideration or object of an agreement is lawful unless it involves or implies injury to the person or property of another. There is no reason given, nor have we been able to discover any, as to why the plaintiff should have consented to forego a part of his legitimate share. The only reason suggested is that he is issueless, but that is no reason for depriving a party of his rightful share which he acquires at birth. Agreements which are calculated to prevent a person from enjoying a fundamental right and which compel him to seek redress in a court of law must be held to be bad and unlawful. The plaintiff admittedly signed the agreement, but the question is whether he gave his free consent, and that question has to be determined by the Court. There being no consideration at all, as I have already stated, for such consent, I must hold that the agreement should be regarded as void.

20. I have, therefore, arrived at the conclusion that both on facts and on law, the appellants are bound to fail. The appeal is accordingly dismissed with costs. Hearing fee Rs. 100/- (Rupees one hundred only.)

Narasimham, J.

21. I agree.


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