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Kamalmbal Vs. Dorasami Chettiar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in56Ind.Cas.26
AppellantKamalmbal
RespondentDorasami Chettiar
Cases ReferredWinn v. Bull
Excerpt:
civil procedure code (act v of 1908), order xxiii, rule 3 - compromise--agreement between parties, when amounts to completed compromise. - .....the subordinate judge decided in favour of the 1st defendant that exhibit a signed by the parties evidenced a completed agree-merit and gave a decree in its terms. hence the appeal to us by the plaintiff.2. the plaintiff admits exhibit a, but con-tends that that it is only a memorandum of the points provisionally agreed to by her and that the matter remained in a state of negotiation still and that it was only after certain further points were settled after consultation with vakils and a formal razinamah petition was drawn up and signed by her embodying all the terms that the contract would become complete. she declined to sign exhibit i, which was the formal petition that was so drawn up, and she contends that there was, therefore, no agreement binding on her and that the.....
Judgment:

1. The only point for decision in this case is whether Original Suit No. 49 of 1916 has - been validly compromised between the plaintiff and the 1st defendant by a lawful agreement written under Order XX III, rule 3, of the Code of Civil Procedure, as alleged by the 1st defendant. Plaintiff's case is that though there was a mediation between the parties and an agreement was arrived at on some of the points in dispute, there were still-other points outstanding to be settled, and, therefore, there was no completed contract. The Subordinate Judge decided in favour of the 1st defendant that Exhibit A signed by the parties evidenced a completed agree-merit and gave a decree in its terms. Hence the appeal to us by the plaintiff.

2. The plaintiff admits Exhibit A, but con-tends that that it is only a memorandum of the points provisionally agreed to by her and that the matter remained in a state of negotiation still and that it was only after certain further points were settled after consultation with Vakils and a formal Razinamah petition was drawn up and signed by her embodying all the terms that the contract would become complete. She declined to sign Exhibit I, which was the formal petition that was so drawn up, and she contends that there was, therefore, no agreement binding on her and that the attempted compromise fell through.

3. In Exhibit A there is a statement in clause 7 which seemed to lend some support to her case. It says 'that in respect of all the other terms of the Razinamah, Vakils shall be consulted and another Razinamah prepared and filed in Court regarding' the reliefs to be granted to each. Now, as the expression 'the other terms of the Razinamah' was ambiguous and it was not clear whether it referred merely to the wording of the Razinamah as defendant contended or to other terms of dispute on the merits between the parties and as the Subordinate Judge had disposed of the matter in the first instance on the affidavits of the parties and as plaintiff's affidavit did not state what those other terms were according to her, we considered it proper that evidence should be taken of the mediators and others who took part in bringing about the alleged settlement under Exhibit A to explain the clause and we, therefore, remanded the case for the purpose and directed the Subordinate Judge to take evidence and return findings as to what the 'other terms' were and whether the settlement under Exhibit A was conditional on the settlement to be arrived at on those other terms. The Subordinate Judge has taken the evidence and has returned findings on both points in favour of the defendant. He finds that 'the other terms' did not refer to any points of dispute on the merits between the parties, but only to the introduction of a recital as regards the truth of the Will relied on by the plaintiff and of the adoption relied on by the first defendant with the advice of Pleaders in the Razinama and to make the language of Exhibit A more formal so as to make it fit to be filed in Court, and on the 2nd issue he finds that it was not intended that the settlement under exhibit A was to be conditional on any, other terms being settled later.

4. Mr. T. Rangachariar for the appellant contended that his findings on these issues were wrong. On the evidence on record we are inclined to agree with the Subordinate Judge that all matters in dispute between the parties were really settled before Exhibit A was drawn up and that the other terms' in clause 7 really refer to what the Subordinate Judge finds. The plaintiff wanted a recital of the truth of her Will and the defendant of the truth of his adoption in the final Razinama petition; but in view of the terms agreed to in Exhibit A these recitals were of no importance and apparently were not a matter of dispute between the parties. The parties, having disputed these points in the suit, apparently wanted to consult the Vakils to find out if it was proper to add such admissions in the Razi petition and if so, how they should be worded. This is what the plaintiff's witnesses say and we think it is most likely. Even the 2nd witness for the plaintiff admits this was what was meant by clause 7. There is no real foundation for the suggestion that the introduction of these recitals was a matter of dispute between the parties, which was arranged to be settled between them after consulting their respective Vakils. The statement of plaintiff's 1st witness in cross-examination to which our attention was drawn that 'the plaintiff said that Will must be recited as true and defendant that adoption was true and we mediators said that on those points the Pleaders must be consulted and decision arrived at,' must be read with the rest of his evidence and the evidence of the other mediators, when it will be clear that what he meant was that' the Vakils were to decide how the recitals could be properly made, and not that the parties should decide whether the recitals should be made at all. We are unable to credit the plaintiff when she enumerates a number of items of dispute as referred to in clause 7, for she is not corroborated in it by her own 2nd witness. We accept the finding of the Subordinate Judge as to the meaning of clause 7.

5. We also accept the Subordinate Judge's finding that the settlement under Exhibit A was not in any way dependent on the settlement of any other terms afterwards. It is fully supported by the evidence on record and was hardly attacked by the appellant's Pleader. All the mediators whose evidence we have accepted support this view.

6. In these circumstances, can it be said that Exhibit A does not evidence a completed contract? We do not think so. Mr. Rangachariar cited several English oases as in his favour, viz., Winn v. Bull (1877) 7 Ch. D. 29 : 47 L.J. Ch. 139 : 26 W.R. 230 Appleby v. Johnson (1874) 9 C.P. 158 Stanley v. Dowdeswell (1875) 10 C.P. 102 : 23 W.R. 389 and Von Hatzfeldt Wildenburg (Princess) v. Alexander (1912) 1 Ch. 284 : 81 L.J. Ch. 184 : 105 L.T. 434 while on the other side the oases in North v, Percival (1898) 2 Ch. 128 : 67 L.J.Ch. 321 : 78 L.T. 615 : 46 W.R. 552 and Gray v. Smith (1890) 43 Ch.D. 208 : 59 L.J.Ch. 145 : 62 L.T. 335 : 33 W.R. 310 were cited, It is not necessary to refer to them in detail, as the law on the point as to when a contrast should be viewed as complete and when not is fairly clear. The question has to be decided in each case on its own facts. If a consensus ad idem had been reached between the parties on all the proposed or disputed terms, there is a contract: but if, as Jessel, M, R, puts it in the case in Winn v. Bull (1877) 7 Ch. D. 29 : 47 L.J. Ch. 139 : 26 W.R. 230 'if two persons agree in writing that up to a certain point the terms shall be the terms of the contract but that the minor terms shall be submitted to a Solicitor and shall be as are approved of by him' or if they are otherwise left unsettled there is no contract; this is so even if they are minor terms. But if all the terms are agreed to, any stipulation to embody those terms in a formal document will not affect the contract except when there is a further stipulation, express or implied, that the contract shall not be treated as complete till the formal document is drawn up and signed. The English oases cited illustrate these principles.

7. In the present case we have found that though the parties desired to have a formal Razinamah petition prepared and to have the recitals above referred to included in it, this no way affected the agreement come to in Exhibit A. These were formal matters left to the Vakils to arrange as they thought fit without affecting the contract between the parties. We thick the objection raised by the appellant that the contract under Exhibit A was in complete and unenforceable fails. It may be that she is entitled to have the recitals pot in the Razi petition but she never* asked for it.

8. The appeal against order fails and is dismissed with costs.


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