Skip to content

Abdul HussaIn Rowthan Vs. Mahomad Ibrahim Rowthar and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in35Ind.Cas.243
AppellantAbdul HussaIn Rowthan
RespondentMahomad Ibrahim Rowthar and ors.
Cases Referred and Naylor v. Wineh
muhammadan law - guardian, de facto, release by, when to be set aside or upheld--family settlements, when not binding on minor--tests--mother, power of, as de facto guardian--'delay defeats equities', limitations to the maxim--laches and inconvenience, when no bar to re-opening of settled matters--existence of debts proved prima facie by acceptance by major members--compromise, views of parties as to, if absolute. - - the fact that he has abstained from producing the mortgage-deed on which the payments would ordinarily be endorsed, is sufficient to warrant us in accepting the defence evidence on this point. 2. the defence relied upon is that the release was part of a family settlement, entered into for the purpose of quieting disputes and restoring peace in the family, and it is not.....john wallis, c.j.1. this is in some respects an unsatisfactory case. the plaintiff on the 10th january 1910 instituted the present suit for a share of immoveable properties left by his deceased father in this presidency, on the ground that be was not bound by a deed of release, exhibit ia, dated 6th july 1904, executed by his mother as his de facto guardian during his minority in favour of his elder half-brother, by which certain property of the alleged value of rs. 3,000 was assigned to them both in satisfaction of their 28 and 11 or 39 shares out of 176 shares in the property left by his deceased father, in addition to which it was also admitted in the oral evidence for the plaintiff that they had collected rs. 400. according to a statement made by the plaintiff's mother, the 2nd.....

John Wallis, C.J.

1. This is in some respects an unsatisfactory case. The plaintiff on the 10th January 1910 instituted the present suit for a share of immoveable properties left by his deceased father in this Presidency, on the ground that be was not bound by a deed of release, Exhibit Ia, dated 6th July 1904, executed by his mother as his de facto guardian during his minority in favour of his elder half-brother, by which certain property of the alleged value of Rs. 3,000 was assigned to them both in satisfaction of their 28 and 11 or 39 shares out of 176 shares in the property left by his deceased father, in addition to which it was also admitted in the oral evidence for the plaintiff that they had collected Rs. 400. According to a statement made by the plaintiff's mother, the 2nd defendant, in July 1901, Exhibit 32, the plaintiff was then 13, and according to her statement in Exhibit Ia, the release in dispute, he was 16 in July 1904. There is no reason to doubt these statements which agree and were made, at the time, so that the plaintiff did not institute the present suit until five and a half years after the date of the release, and nearly five years after he attained majority. There is also no reason to doubt the evidence of the defendants that hehimself received instalments of the mortgage for Rs. 1,000 which was executed by the 1st defendant as part of the consideration for the release. The fact that he has abstained from producing the mortgage-deed on which the payments would ordinarily be endorsed, is sufficient to warrant us in accepting the defence evidence on this point. Had it been necessary to set aside the release, the suit would have been barred, but it has been held by the Privy Council that a conveyance by a de facto guardian of a Mohammedan, which is not binding on the minor, does not require to be set aside by him after attaining majority Mata Din v. Ahmad Ali 13 Ind. Cas. 976 : 16 C.W.N. 338 : (1912) M.W.N. 183 : 14 Bom. L.R. 192 : 15 O.C. 49 : 23 M. L.J. 6 : 39 I.A. 49. In view of this decision no attempt has been made to support the judgment of the Subordinate Judge that the suit was barred as the release was not set aside within three years of attaining majority.

2. The defence relied upon is that the release was part of a family settlement, entered into for the purpose of quieting disputes and restoring peace in the family, and it is not disputed that if the settlement was a proper one, it would be binding on the plaintiff in spite of its having been entered into by the de facto guardian of the minor, because it would be clearly for his advantage. The case has also been complicated by the action of the plaintiff in disputing the legitimacy of the 1st defendant, and also the marriage of his father's third wife and the legitimacy of her son and live daughters, a course of con-duet clearly prompted by an unscrupulous desire to deprive them of their shares. These allegations were put in the forefront of the plaint, and the result has been that the attention of the parties seems to have been very largely directed to these questions, and evidence as to the fairness or otherwise of the release, Exhibit Ia, is not as full as it might have been. We have, however, to deal with the case on the materials before us and the main question seems to be whether the share allotted to the plaintiff and his mother was a fair one, as there can be no doubt the circumstances were such as to call for a family settlement on fair lines. The plaintiff's father had died in 1899 and there had been continuous disputes in the family till 1904. The 1st defendant, who had carried on business with the father at Rangoon and was appointed executor in his Will, effected a settlement with a son of the deceased by his third wife at Rangoon in January 1904 (Exhibit G). In July 1904 he made a settlement through arbitrators with the plaintiff and his mother and took from them the release deed, Exhibit Ia, and he made a similar settlement with the third wife and her four minor daughters and took from them the settlement Exhibit 16. In December of the same year he took a fresh release from the son of the third wife on the same terms as the previous one. All the releases recited that there were debts due by the deceased to the extent of Rs. 12,100 and this is to someextent confirmed by the Exhibits and the recitals in the Will of the deceased and no good ground is shown for questioning it. The valuation given in the release deeds is more open to suspicion. The total valuation given is Rs. 22,330, in respect of 52 acres odd in one village in Tanjore worth Rs. 6,000 or 8,000 including house, godown and cattle shed; 6'85 acres in another village worth Rs 800; house property worth Rs. 1,500 ; and 180 acres of wet and dry land at Rangoon worth Rs. 9,500 with buildings worth Rs. 1,500 and cattle Rs. 1,000, in all Rs. 22,330. Of the Rangoon properties 58'66 acres said tobe worth Rs. 3,200 and cattle worth Rs. 800 were assigned to the third wife's son under Exhibits G and I. As he was only entitled to 28 oat of 176 shares, as against 28 to the 1st defendant, 39 (28 plus 11) to the plaintiff and his mother, 81 (5 into 14 plus 11) to the third wife and her five daughters, and as the property shown as available for division was only worth Rs. 22,330 less Rs. 12,100 or Rs. 10,230, the assignment of the Rs. 4,000 to the third wife's son, who was entitled to less than one-sixth, was obviously unfair. On the other hand, the assignment of only Rs. 3,000 by Exhibit I (b) to the third wife and her four daughters in respect of at least 67 shares to which they were entitled out of 176, was greatly to their disadvantage. It appears tome, however, that in the present suit we are not concerned with them as they and their brother are not parties, and that all we have to see is whether the plaintiff and his mother were fairly dealt with in the allotment of properties alleged to be worth Rs. 3,000 by Exhibit Ia, in addition to which the plaintiff's mother admits having collected Rs. 400. Now 39/176 is less than one-fourth and, therefore, the plaintiff and his mother had a fair share if the net estate amounted to Rs. 14,000. There is, however, evidence of serious under valuation as to the Rangoon properties. The 58 62 acres of land in Rangoon, allotted under Exhibit I to the third wife's son, were only valued therein at Rs. 3,200 and the remaining 180 acres were only valued at Rs. 11,000 including cattle, etc., worth Rs. 1,000. Now the 1st defendant admits that two years later he sold the 180 acres in Rangoon for Rs. 18,000 and the oral evidence for the plaintiff is that they were sold for considerably more, which may well be the case as the 1st defendant has not produced copies of the registered sale-deeds. This certainly suggests that the valuation in favour of the 58-62 acres allotted to the third wife's son was entirely false. There is also a most suspicious circumstance that prior to 1904, the date of the alleged settlement, the 1st defendant allowed certain of the properties of the deceased to be sold for payment of revenue; and though there is no evidence he supplied the purchase-money, these properties appear to have been purchased by his friends and had come back to him by transfer from them before the date of the suit. Further, the evidence as to the alleged mediation under which the settlement was effected is meagre and unsatisfactory, and the 1st defendant has failed to produce the accounts of the deceased or to account for his failure to do so. In these circumstances I find it impossible to say that the settlement was one which has been shown to have been beneficial to the minor so as to justify his mother in entering into it as his de facto guardian, and I am of opinion it is not binding upon him and does not require to be set aside. In the present suit he only seeks to recover his share of properties in the hands of the 1st defendant with the exception of the Rangoon properties in the 1st defendant's possession, but he does not object to their being included in the account.

3. As regards the 3rd and 4th defendants, it is not shown that the properties in their possession belonged to the family, and the appeal as regards them must be dismissed with costs.

4. After considerable discussion we have decided that the proper course in the circumstances is to call for a finding on the following issues:

1. What were the properties in the Madras Presidency left by the plaintiff's father which came into the possession of the 1st defendant?

2. What was the amount of the sale-proceeds of the Rangoon properties of the plaintiff's father actually realised by the 1st defendant?

3. To what extent is the 1st defendant entitled to credit against the plaintiff in respect of family liabilities discharged by him up to date?

4. To what extent are the plaintiff and the 1st defendant respectively accountable for mesne profits?

5. Time for return of finding will be six months from the date of this order; and ten days will be allowed for objections.

6. Mr. Ramachandra Aiyar does not claim any share in the Rangoon properties as such against the 1st defendant but only against the sale-proceeds. Fresh evidence may be taken.

Seshagiri Aiyar, J.

7. This is a suit by a person who has attained majority, for a declaration that a deed of release executed by his mother during his minority is not binding upon him. The father died on the 11th January 1899. He left behind him three wives, a son by each of the three wives, and four daughters by the third wife. The 1st defendant in the case is the first wife's son. The 2nd defendant is the mother of the plaintiff. She executed Exhibit Ia on the 6th July 1904 in favour of the 1st defendant, by which she relinquished for herself and on behalf of her son, the plaintiff, all claims to the property of her deceased husband in consideration of being given immoveable property of the value of Rs. 2,000 and cash Rs. 1,000. The plaintiff, says that this release is not binding on him as it was entered into by a person who was not his legal guardian, and as its terms are inequitable and unjust. The 1st defendant pleads that the release was a bona fide settlement of the disputes among the members of the family, that no undue advantage was taken of the position of the 2nd defendant and that it is binding upon the plaintiff. He also pleads the bar of limitation. The Subordinate Judge upheld these contentions and dismissed the suit. The plaintiff has preferred this appeal.

8. The case has been complicated by the introduction of untrue averments by the plaintiff, and this has resulted in the minds of the parties and of the Court not being fully directed to the matter which was pressed in appeal, namely, that the release deed is not binding as being beyond the powers of the mother and as not being beneficial to the minor. In the plaint the plaintiff claimed seven-eighths share, on the ground that the 1st defendant was not a legitimate son as his mother was only a concubine of his father, and that the 1st defendant was not entitled to any share in his father's properties. He also pleaded that the third wife was not a married wife of his father and that the children of the third wife were equally disentitled to claim any rights in his father's properties. A great deal of evidence was directed towards ascertaining whether the first and third wives were married according to Mu-bammadan Law by the deceased father of the plaintiff. The Subordinate Judge came to the conclusion that they were legally married and that the children were legitimate. These findings are not contested in appeal. As regards limitation, the 1st respondent's Vakil rightly gave it up, as the question is concluded by the decision of the Privy Council in Mata Din v. Ahmad Ali 13 Ind. Cas. 976 : 14 Bom. L.R. 192 : 39 I.A. 49 which is also authority for the proposition that it is not necessary for the plaintiff to seek to set aside the release deed,

9. The real issue which was argued in appeal is issue 2. It was framed in the Court below, mainly with reference to the contention that the properties taken by the 1st defendant and those given to the third wife's son and daughters should, be restored in their entirety to the plaintiff as he was the only legitimate issue of his father. There are no doubt averments in paragraphs 24 and 25 of the plaint that the release deed was brought about by fraud and was inequitable. The plaintiff is very much to blame for having introduced false averments in his plaint and for letting in evidence to support them. However, we have to see whether the finding upon the second issue by the Subordinate Judge can be supported. Mr. Narasimba Aiyangar, who argued the case with much ability 'for the 1st respondent, has drawn attention to the circumstances which resulted in the execution of the release deed. After the death of the father in 1899 there were disputes among the members of the family. The 2nd defendant applied for succession certificate in 1901, Exhibit 32, in respect of her husband's property, ignoring the Will which had been executed by him, Exhibit 29. The 1st defendant also applied for a certificate in his own name. There, were also disputes between the 1st defendant and the third wife's son, which led to criminal proceedings, regarding an iron trade. [See Exhibits A and A I.] Suits were filed about this time for the debts due by the deceased father of the plaintiff. There were also sales for arrears of revenue in 1900 and 1901. Under these circumstances, Mr. Narasimha Aiyangar argues that the release deed in question was executed in order that there may be peace among the members of the family. Before Exhibit Ia was executed by the 2nd defendant, the third wife's son, who was a major, had executed Exhibit G on the 20th February 1904 to the 1st defendant for himself and on behalf of the remaining members of the family, by which the executant obtained about 60 acres of land in Rangoon as his share of the family properties. The valuation put upon this property wasRs. 4,000. This was subsequently ratified. On the day that Exhibit Ia was executed, the third wife, for herself andfor her daughters, executed a similar release deed, Exhibit I&. It is contended that Exhibits G, Ia and 16 constitute a family arrangement and reliance is placed upon In re Govind Panduraing Kamat 8 Ind. Cas. 623 : 35 B.P 75 12 Bom. L.R. 936 for this position. If the various documents already referred to were in pursuance of a general purpose of settling family affairs and of bringing peace among the members of the family, there can be no question that Exhibit Ia would be one of a series of transactions by which the family arrangement was secured. I shall consider the question whether there was a real family arrangement later on.

10. It is undisputed law that a mother is not the de jure guardian of a minor under the Muhammadan Law. It is said that she was de facto guardian; in that capacity her powers of binding her son's interest are very limited. The Judicial Committee of the Privy Council in Mata Din v. Ahmad Ali 13 Ind. Cas. 976 : 14 Bom. L.R. 192 : 23 M. L.J. 6 : 39 I.A. 49 held that the acts of a guardian, if they are not for necessity or for the benefit of the minor, should not be upheld. The same principle was enunciated by Justice Mahmood in Sita Ram v. Amir Begam 8 A.P 324 : A.W.N. (1886) 101 and has been accepted as good law by the learned Chief Justice and Justice Abdur Rahim in Abdul Khadar v. Chidambaram Chettyar 3 Ind. Cas. 876 : 32 M.L.T. 201 where their Lordships point out: In the Muhammadan, no less than in the English system of law, the State is especially charged with the care of the person and property of minors, and when the Muhammadan Law recognises the right of certain relatives to act as guardian, it does so on the assumption that the particular ties of relationship are a guarantee that such person would act for the benefit of the ward.'

11. In a later case, Hyderman Kutti v. Syed Ali 15 Ind. Cas. 576 : 23 M.L.J. 244 : 12 M.L.T. 147 : (1912) M.W.N. 889 : 37 M.P 514 Justice Abdur Rahim re-affirms the position taken in Abdul Khadar v. Chidambaram Chettyar 3 Imd. Cas. 876 : 32 M.P 276 : 5 M.L.T. 201 and after elaborately discussing the Muhammadan Law upon the point, says: ' It seems to us to be quite clear from authoritative pronouncements of Muhammadan Jurists as well as upon the principles of Muhammadan Jurisprudence, that while the general rule is that the dealings with such a person (referring to a de facto guardian) do not ipso facto bind the minor, the law recognises certain exceptions to this rule. The exceptions are mainly based on the principles of Muhammadan Jurisprudence that necessity' is a valid ground for relaxing a strict rule of law.'

12. Then he refers to the necessities of the minor and to the supply of funds for meeting them. The third exception to which the learned Judge refers is this: 'Acts which are purely advantageous to the minor, such as accepting presents or gifts and keeping them for him; a power which may be exercised either by a mootakit, brother or uncle and also by the infant himself...the intention being only to open a door to the infant receiving benefactions of an advantageous nature.'

13. The learned Judge's conclusion is that if a transaction entered into by a de facto guardian is for the benefit of the minor, it will be upheld. Mr. Ameer Ali in his well known book on Muhammadan Law, Vol. II, Third Edition, page 590, thus summarises the position: 'A mother is not a natural guardian.... If she deals with their (i.e., minors') estate without being specially authorized by the Judge or by the father, her acts should be treated as the acts of a fazuli. If they are to the manifest advantage of the children, they should be upheld; if not, they should be set aside'.

14. It must, therefore, be taken as well established that unless a transaction on behalf of a minor is found to be to his manifest advantage or for necessity, it should not be upheld under the Muhammadan Law against the minor. The question in this case is, whether the transaction evidenced by Exhibit Ia was for the manifest advantage of the plaintiff. I have very reluctantly come to the conclusion that it is not. I shall now refer to the arguments advanced before us to impeach the validity of this transaction; and although some of them have not been substantiated, I am of opinion that the interests of the minor have on the whole suffered by this release deed.

15. Mr. T.R. Ramachandra Aiyar contended that the recital regarding the extent of the debts due by the father mentioned in Exhibit Ia was fictitious. The document says that there is a debt of Rs. 12,100 to be paid by the family in common out of the properties. It may be, as contended by the learned Vakil for the appellant, there is no strict proof of the existence of these debts and of the 1st defendant having really paid them. But this is, in a large measure, due to the introduction by his client of false averments and of not having directed his attention to the real matters in dispute. One would have expected the plaintiff to have stated in the plaint explicitly that this large sum of Rs. 12,100 said to be due from his father was fictitious. There is not a word about the debts not being true in the plaint. On the other hand, we find that in the transaction between the third wife's son, who was himself a major, and the 1st defendant, entered into in February 1904 by Exhibit G, specific debts are mentioned as being due by the father. One of them is a debt of Rs. 7,000 due to one Vellian Chetty under a deed of mortgage. That mortgage-deed is now 'produced by the 1st defendant. It is said that this amount became payable during the lifetime of the father and that there is nothing to show that the debt was not paid by the father. Not a single question was put to the 1st defendant when he was in the witness box as to whether he paid the amount to Vellian Chetty, how much was so paid and whenit was paid. The Will of the father, Exhibit 29, mentions the existence of debts, and when a major member of the family executes a release deed on that footing, it is prima facie evidence of the existence of the debts. Other payments made by the 1st defendant to the creditors of the family have been proved and I see no reason to think that the father was not indebted to the extent mentioned in Exhibit Ia. Of course, the 1st defendant could have produced receipts showing the payments made by him and could have satisfied the Court from the accounts which he kept that these debts were really due from his father

16. His explanation for the non-production of the accounts is not very satisfactory; but I am not prepared to say on the evidence now before us that the entry of the sum of Rs. 12,100 as a debt due by the family is a fictitious one.

17. Mr. Ramachandra Aiyar's second argument is that the properties were grossly undervalued. I think there is force in this argument. In Rangoon there were about 240 acres of land; in British India, that is, in the Madras Presidency, there were 50 to 60 acres of nanja land. The value given in Exhibit Ia of all these properties is Rs. 22,330. It was admitted by the 1st defendant in cross-examination that in. 1906 he sold 180 acres of the Burma property for about Rs. 18,000. At that time the 3rd wife's son had been given about (sic) acres for his share. There is no evidence that between July 1904 and 19C6 the property had risen in value in Burma. Mr. Narasimha Aiyangar suggested that the Burma property as well as the properties in British India were undervalued for the purpose of evading the stamp and registration fees. I am not satisfied that that was the real motive. If that were so, and if the plaintiff had been given property worth Rs. 3,000 and not property worth Rs. 2,000 and cash Rs. 1,000, the transaction might be regarded as honest, but that is not what has happened in this case. On the whole, I am inclined to think that at least the Burma properties were very much undervalued.

18. Another ground taken by Mr. Ramachandra Aiyar is that the 1st defendant purposely allowed the family properties to be brought: to sale for arrears of revenue and had them purchased by his father-in-law and by a friend of his; and that ultimately he got them back, thereby showing that he was not acting honestly in dealing with the other members of the family. There is no direct evidence that the original purchase-money for the properties covered by Exhibits V and Vb came from the 1st defendant. They were first mortgaged along with some other properties belonging to his father-in-law to a third party; and finally they came into the 1st defendant's possession The transactions look very suspicious and there is reason to believe that the 1st defendant allowed these lands to be sold for arrears; of revenue with the intention of defeating the rights of the other members of the family and with the object of ultimately securing them for himself.

19. As regards the next item of complaint, I am not satisfied that the iron trade was carried on by the 1st defendant and his father-in-law with the aid of any family funds and that its exclusion from the properties belonging to the family was fraudulent.

20. One other circumstance might., be mentioned, Exhibit G, the release deed from the third wife's son to the first defendant, secures to the former property worth Rs. 4,000. He was only entitled to 28 out of 176 shares, whereas the plaintiff and his mother were entitled to 39 out of 176 shares. On the face of it, it looks as if this major member of the family was given a larger share in the family property than the plaintiff and his mother. It is no answer to this grievance to point out that the third wife's daughters got a smaller share than they were entitled to. That only shows that in cases where the major members were concerned every possible advantage was secured to them as against the minor members of the family. Lastly, it may be mentioned that accepting the face value given in the release deed to be correct, the plaintiff and his mother were entitled for their 39 shares to nearly Rs. 200 more than what was actually allotted to them.

21. The circumstances detailed by me show that equality of rights was not secured to the various members of the family. Mr. Narasimha Aiyangar argued that the Courts should incline in favour of upholding family settlements and should not scrutinize too closely transactions which resulted in securing family peace. I am not satisfied that there was really any family settlement in this case. The evidence of defendant's third witness is to the effect that about ten persons belonging to the village took part in mediating between the parties. Only two of them have been called and no reason has been shown why the other persons said to have been present have not been cited to show the nature of the enquiry they held; the evidence of the two alleged mediators does not impress me as being true. The defendant's 5th witness says that he acted on behalf of the plaintiff and his mother. He admits: 1 did not examine the accounts. Two small account books were produced before us. Some of the panchayatdars looked into them. They did not tell me what was mentioned in them. A list was prepared of the debts and outstandings. The properties were valued. I don't know what the debts were. I don't know what the outstandings were either. I don't know if the account books referred to the Rangoon properties. They said there was no income from the properties,' and so on. If this man was looking after the interests of the plaintiff in settling disputes, it is clear that the interests of the plaintiff and his mother were in no way safeguarded. The 3rd witness for the defendant gives very general evidence and does not descend to particulars. He says that the settlement lasted five or six months; and yet not a scrap of paper has been produced to show what enquiries were made and who took part in them. It is admitted that no written reference was made to mediate, nor was any written award passed. The evidence relating to the settlement of the disputes among the members of the family by mediators does not convince me as reliable, and I am not prepared to act on it.

22. What has led me to hesitate a great deal in giving relief to the plaintiff is the fact that admittedly for three years after he attained majority he took no steps to question the transaction entered into by the 2nd defendant. There is evidence that he did receive a portion of the consideration for the release deed. I do not believe his evidence to the contrary. I am also inclined to agree with the Subordinate Judge that he has understated his age and that he was really sixteen at the time of the release deed. The result of this inaction on the part of the plaintiff and of his receiving the money due under the deed has been to bring into existence transactions with third parties and acts by the 1st defendant which he would not have undertaken had the plaintiff repudiated the arrangement earlier. Mr. Narasimha Aiyangar laid stress upon this aspect of the case and cited 14 Halsbury's Laws of England, Section 1243, in support of his contention that the plaintiff was estopped from seeking to set aside Exhibit Ia. The law is thus summarised there: 'The right to relief against the provisions of a family arrangement, and to set aside or vary its terms may be lost by acquiescence; delay for a long space of time; delay causing the remedy not to be mutual; the acquisition of rights by third parties, who will not be disturbed; or by any other means by which the status quo ante cannot be restored.' Some of the infirmatory circumstances mentioned above have been alleged to exist in this case. However, the evidence before us does not satisfy me that it is impossible to restore the status quo ante: a great deal of inconvenience will be caused to the 1st defendant by re-opening the rights of the parties; but if he has not acted above board, he cannot be heard to complain that the plaintiff should have acted more promptly. The maxim that delay will defeat equities should not be applied to a case where want of fair dealing and inequality have been proved to exist. The appropriate relief in this case might be obtained from the 1st defendant without interfering with the rights of third parties: I shall now refer to the tests which have to be applied in refusing to give effect to transactions entered into on behalf of infants. In forming an agreement of compromise by way of family arrangement there must be a full disclosure of all material circumstances in the knowledge of the parties thereto and it is immaterial whether information withheld be asked for by other contracting parties or not.' See Maynard v. Eaton (1874) 9 Ch. A. 414 : 43 L.J. Ch. 641 : 22 W.R. 457.

23. In this case, I have come to the conclusion that the 1st defendant has not made a full disclosure of the family properties and of their true value.

24. Another equally well-recognized proposition is that all the members of the family should have been treated impartially per Mookerjee, J., in Satya Kumar Banerjee v. Satya Kirpal Banerjee 3 Ind Cas. 247 : 10 C.L.J. 503. I have pointed out that the third wife's son received more than what he was entitled to, and that the plaintiff and the third wife's daughters suffered by this preference.

25. The third proposition is: 'If parties are not on equal terms and one of them stands in such relation to the other as renders it incumbent on him to give a fuller account of the matter or question in dispute than he has done, the Court, although no intentional fraud may be imputable to such person, will not support a compromise entered into between the parties.' Stapilton v. Stapilton 1 W. & T.L.C. 234. The 1st defendant claims to be the executor under his father's Will ana it was incumbent on him to give a full account of the estate and effects of his father: although I have held that it is not proved that there were not debts of the father to the extent of Rs. 12,000, I am unable to say that he has given a true and full account of that indebt-edness and of his having discharged them.

26. A family arrangement will not bind minors if it is in any way unconscionable. I have come to the conclusion that in regard to the revenue sales the first defendant did not act honestly. Therefore, the exclusion of those properties resulted in an unconscionable bargain in his favour to the prejudice of the plaintiff. The release deed is, therefore, vitiated by the considerations above adverted to.

27. A large number of authorities were quoted by Mr. Narasimha Aiyangar to show that a compromise should be adjudged, not by what the Court Court concludes to be the right of the parties, but by what was regarded as just and proper by those who entered into this transaction at the time. I ac ept this position with this proviso-that the transaction itself should have been entered into honestly and with a view to secure full jnstice to the various parties to the instrument The cases Muhammad Iman Ali Khan v. Husain Khan 25 I.A. 161 : 2 C.W.N. 737; Kali Butt Jha v. Abdul Ali 16 C.P 627 : 16 I.A. 96; Helan Dasi v. Durga Das Mundal 4 C.L.J. 323 and Naylor v. Wineh 24 R.R. 227 : 1 Sim & S. 555 2.L.J. (O.S.) Ch. 132 : 57 E.R. 219 all presuppose hat, although there have been mistakes in calculation or in the ascertainment of rights, there was no undue advance taken by one of the members of the family and that there was an honest desire to put an end to litigation and to secure family peace. According to my view of the facts of the case that was not the object which the 1st defendant intended to secure by entering into these release deeds. I, therefore hold that the plaintiff has established that the release deed entered into by his mother on his behalf is not binding on him.

28. I agree with the order proposed by the learned Chief Justice. I only wish to add that the conclusion 1 have come to will not bind parties in the trial of the issues now sent down.

[N.B. -In compliance with the order contained in the above judgment, the Subordinate Judge of Negapatam submitted findings and after reversing the decree of the lower Court a preliminary decree for partition was passed in plaintiff's favour by the High Court, the case being remanded to the lower Court for the passing of the final decree.]

Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //