1. The original plaintiff in this suit was one Sudhirendra, the fourth son of Jogendra. Jogendra was the eldest son of Debendra and Debendra was the eldest son of Mohesh. The parties are governed by the Dayabhaga School of Hindu law. Mohesh, the plaintiff's great-grandfather, died in 1874 having left his property to be divided, after the death of his wife and upon the youngest of his grandsons who should be living at the time of his-decease attaining full age, among his grandsons in equal shares. Pour grandsons were born in the lifetime of Mohesh of whom the plaintiff's father Jogendra was one. There is a quests as to the fifth grandson-whether, allowance being made for the period of gestation, he too is not to be considered as having been born a the lifetime of his grandfather. Debendra was the executor to the Will of Mohesh, probate having been granted to him on 10th July 1874. Debendra died in 1901 having by his will appointed Jogendra to be his executor. He dedicated all his real property, with a certain exception, to a Thakurani called Annapurna Debi providing that, upon the death of his wife, his sons and their heirs should be shebaits alternately and successively for one calendar month each and that the shebaits and their families should get maintenance and residence out of the debutter property. A question has been raised whether this dedication was an absolute dedication to the deity or whether it merely constituted a charge upon the immovable property of the testator subject to which such property descends as upon an intestacy to the heirs of Debendra. Mohesh at his death had left certain properties and Debendra at his death was in possession of a good many other properties. As to these latter it has been contended that they were really acquired out of the estate of Mohesh and are not to be regarded as belonging solely to Debendra's estate. Probate of Debendra's Will was granted to Jogendra in 1902.
2. In 1915 a suit (No. 372 of 1915) was brought in this Court by Rabindra, Debendra's seventh and youngest son, who was born after the death of Mohesh. In this suit Jogendra and his brothers were impleaded as defendants and the plaintiff claimed that he was equally entitled with his brothers to share in the estate of Mohesh and in the estate of Debendra and asked for administration and partition of both estates upon this basis. A receiver was appointed in this suit which dragged on for a long time, an order of reference to arbitration being made in 1917 and revoked in 1920. In 1919 Kamini died : she was Debendra's widow and shebait under his Will, her sons became shebaits on her death. On 12th March 1921 Jogendra, defendant 1, died pending suit and his four sons, including the present plaintiff Sudhirendra, were substituted in his stead. Sudhirendra being a minor, his elder brother Eanendra was appointed to be his guardian-ad-litem. On 6th June 1922, the suit terminated in a consent decree and it is with the validity of this consent decree and the question whether, in the events which have happened, it is still binding upon the parties that we are concerned in the present suit.
3. The proceedings which led up to the consent decree are set forth in the judgment of the learned Judge. It seems that on 15th February an order was obtained adjourning the hearing of the case for a month on the ground that there were proposals for settlement. On 17th March another month's adjournment was obtained for the same purpose. On 25th April a week's adjournment was given and the case came into the list and was marked 'for settlement.' On 5th May the suit was again adjourned for five days and on 11th May for a further four days. The terms of settlement were then reduced to writing and sent to the solicitors acting for the various parties for their approval. The learned Judge has held that the whole of the matter in dispute between the parties were thoroughly canvassed. We have the correspondence in which the solicitors for the plaintiff in that suit addressed the solicitors for Sudhirendra's guardian-ad-litem and obtained approval of the proposed terms subject to a certificate being obtained from the Court that they were for the benefit of the infant. On 6th June 1922 the agreement of the parties was laid before my learned brother sitting at first instance and by his decree it was recited that
this Court being of opinion that it would be for the benefit of the infant defendant Sudhirendra Deb Manna that the following decree should be made, it is declared with the consent of the adult parties by their respective counsel that the said terms ought to be carried out and the same are ordered and decreed accordingly.
4. The minute of the proceedings made by the officer of the Court is very short and formal. It shows that counsel expressly asked for a certificate that the terms were for the benefit of the infant; it shows also that Mr. M.N. Basu who appeared for the guardian-ad-litem, was present before the learned Judge and expressed consent of the guardian-ad-litem on behalf of the infant; but to what extent the matter was explained to the learned Judge and what enquiries were made by him does not appear at all from the minute.
5. The main outline of the terms of settlement was as follows: That the properties left by Mohesh and the properties left by Debendra were to be treated as one joint estate, Sudhirendra and his three brothers being between them entitled to a 1/7th share thereof; that the parties were all to lease out their interest in the properties set out in the schedule for 99 years, at a monthly rent of Rs. 770 to a joint stock company in process of formation to be called the Jan Bazar Manna Estate Co., Ltd., this company to have a capital of Rs. 1,40,000, divided into 1400 shares of Rs. 100 each, the shares to be allotted to each of the parties in proportion to his interest in the joint estate. The company was to carry on the worship of the Thakurani through the heirs of Debendra, the palas being of two years duration.
6. The company was also to pay off money which had been raised for the payment of a certain legacy. The company was further to pay certain of the parties sums which were due to them by the joint estate at the date of Jogendra's death. The heirs of Jogendra were to pay to the company a sum of Rs. 17,830 in the manner therein mentioned. The heirs of Jogendra were to pay to Jotindra another sum of Rs. 5,000. The company was to adjust and pay the amounts due to any of the parties in accordance with certain books of accounts. The company was to pay a legacy of Rs. 5,000 to Rajendra. The receiver in the suit was to pay to each of the parties Rs. 5,000 and immediately thereafter was to be discharged and to make over possession of the estates in his hands to the company to be formed as aforesaid.
7. When this matter came before the learned Judge it was evident that a long, complicated and ruinous litigation had been proceeding since 1915 and that on whatever terms a decree should be passed, the proceedings would necessarily be protracted as the accounts and enquiries necessary to settle the disputes would be of a lengthy and expensive character. The disputes were entirely family disputes. The guardian-ad-litem, Ranendra, was proposing to do nothing on the infant's behalf which he was not prepared to do on his own account. He-had exactly the same interest in all respects as his younger brother. As the1 sons of Jogendra they might no doubt establish that Robindra could take nothing under the Will of Mohesh. But they had to meet a case that Jogendra's intromissions with the estate of his father and grandfather had cot been regular. Moreover, on the terms of the Will of Debendra, it was very far from clear that the whole of his immovable properties had not been dedicated absolutely. The learned Judge had before him the fact that protracted negotiations had been conducted between the parties and that the guardian-ad-litem on behalf of the infant, had employed solicitors to advise him. Llearned Counsel had attended on his behalf to express consent and the learned Judge was little likely to grant a certificate without satisfying himself that the guardian-ad-litem, his attorneys and his counsel had good reason for thinking that the settlement was advantageous to the infant and to his brothers. The terms of Rule 7, Order 32 of the Code are as follows:
No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a miner with reference to the suit in which he acts as next friend or guardian.
8. They lay down no special form of procedure though it is true that where the facts have not been elucidated by evidence given in the case an affidavit by the guardian-ad-litem setting forth the outline facts of the position and the general considerations in favour of the compromise should in general be required. In the present case, however, the nature and extent of the property, the pedigree of the parties, and the nature of the disputes between them may very confidently be taken as having been apparent to the learned Judge from the pleadings, and from the exposition thereof by counsel.
9. There can be no doubt on the other hand that it was the duty of the guardian-ad-litem to lay before the Court in one way or another all the facts material to the decision of the question whether the proposed terms of settlement were for the minor's benefit and in this suit the main contention of the minors is that his brother Ranendra was guilty of gross negligence in failing to draw the attention of the learned Judge to the fact that certain of the parties had executed mortgages in respect of their shares for substantial amounts. All these mortgages had been granted pending suit. There was a mortgage of 4th September 1917 by Jogendra to Robindra over his one eighth share in the estate of Debendra; there was another mortgage of 22nd February 1918 by Rajendra and Satindra of their three-eighths share in Debendra's estate. It seems that this mortgage was in 1926 enforced by sale of the mortgagor's share in two properties belonging to Debendra's estate to the defendant S.N. Modak. There was a third mortgage dated 23rd May 1918 by Robindra in favour of. Nando Lal Mukherjee over his one-eighth share in Debendra's estate and there was a mortgage dated 22nd August 1918 by Nogendra to Chandi Charan Chowdhury also over a one-eighth share in Debendra's estate.
10. It is said that a lease for 99 years to the company would not be within the power of a mortgagor, the learned Judge should have been informed of the existence of these mortgages before assenting to a settlement of which an important term was that the parties would grant such a lease. It would then have been for the learned Judge to consider whether the object of the scheme was not likely to be frustrated by the mortgagees enforcing their securities and causing substantial parts of the estate to be sold to third parties free from any claim of the company to be entitled to a lease. This is the only serious attack upon the consent decree which the plaintiff brings forward in this suit. His learned Counsel did also found upon a letter written on 4th February 1926 by Messrs. K.K. Dutt and Co. who appear to have been acting as solicitors for the company and also for Robindra to Messrs. Rutter 'and Co. who were acting for the plaintiff Sudhirendra and his three brothers. The letter says:
The allegations as to the fact of mortgages not being known to your clients is not correct. Your clients were fully aware of the said fact and in fact it was also arranged between the parties that after the formation of the company and after the adjustment of the mutual account all the parties would consent to the sale of one of the properties which would be sufficient to pay of debts of the parties.
11. Llearned Counsel contends that here was an agreement which should have been brought to the notice of the learned Judge. It appears to me, however, that this letter affords no sufficient evidence that in fact there was an agreement, the letter itself disclosing no more than a suggestion might be necessary or advisable in the future and might be done if all parties consented. This point adds nothing to the complaint as to non-disclosure of the existence of the mortgages to the Court.
12. The defendants contend in answer that as all these mortgages were executed pendente lite Section 52, T.P. Act, renders them completely innocuous, that there is nothing to show that the learned Judge was not informed about them and that the mere fact that the parties themselves, with knowledge of them, entered into this agreement shows that they correctly appreciated the position, hence that there is nothing here to entitle the plaintiff to have the consent decree set aside. They add that between 1922 and the present time, though the company has been in possession of the bulk of the properties, no claim to disturb its possession on the footing of these mortgages has so far been made against it. They further say that the mortgage of 4th September 1917 was a mortgage to one of the parties, namely Robindra, and may be neglected.
13. Upon this question it appears to me that there is no evidence to show what was and what was not said to the learned Judge at the time of the consent decree. The utmost that can be said on the strength of a minute of the Court officer taken by itself-and it is the only evidence-is that it renders it somewhat improbable that there was any pointed discussion before the learned Judge of the matter of these mortgages. It may be that the parties regarded the contingency of action by mortgagees interfering with the scheme for giving a long lease to the company as a remote contingency, or as one which could be dealt with when it arose by agreement among the parties. They doubtless considered that any mortgage pendente lite would be subordinated to the company in view of the consent decree. Upon the question whether the rights of these mortgagees did in fact and in law, entitle them or purchasers in execution of decrees to enforce the mortgages, to possession of the mortgaged subjects in priority to the company as lessee, learned Counsel for the plaintiff says that these mortgages purported to charge the mortgagor's shares in Debendra's estate, that for the purposes of Section 52, T.P. Act, the suit of 1915 was not a contentious suit and was not one in which the right to these immovable properties was directly and specifically in question: Khan Ali v. Pestonji  1 C.W.N. 62; Jogendra v. Fhul Kumari  27 Cal. 77, and Krishna Kamini v. Dina Mony  31 Cal. 658. He further contends that the doctrine of lis pendens applies only to decrees of such a character as a third party could have anticipated having regard to the scope of the suit and does not apply to a case such as the present in which by consent the Court has made a decree altogether outside the scope of the suit: Kailaschandra v. Fulchand Goari  8 B.L.R. 474 and Bharat v. Srinath A.I.R. 1922 Cal. 358.
14. The mortgagees are not before us and our decision does not bind them, but it is necessary for the present purposes to examine these contentions carefully and in my opinion they are insubstantial. The suit was clearly a contentious suit in its origin and nature: cf. Faiyaz Husain v. Prag Narain  29 All. 339. While it is true that there was no room for dispute as to the figure which represented the share of each party in the estate of Debendra, there was controversy as regards all the properties which were to be leased to the company both upon the question whether they could be regarded as belonging solely to the estate of Debendra as distinct from the estate of Mohesh, and also upon the question whether the Will of Debendra had made them absolute debutter. These properties were directly and specifically in question in the suit. It is true that in Kailas v. Fulchand  8 B.L.R. 474, above cited, Sir Richard Couch in 1871 had suggested that a third party was only bound by the doctrine of lis pendens as regards decrees of such a character as could have been anticipated, but the statute of 1882 is on different lines. The basis of the suggestion made by Sir Richard Couch would seem to be that the doctrine of lis pendens is a doctrine by which notice is imputed to a purchaser who takes during the pendency of the suit. As Lord Macnaughton pointed out in Faiyaz's case  29 All. 339, supra, the doctrine is misconceived if it were so regarded. Notice has little or nothing to do with the matter. The basis of the doctrine is that parties to a suit cannot be allowed to shorten the arm lot the Court in dealing with the suit by transactions which if they were to be regarded at all would involve the presence of third parties and might extend the litigation indefinitely and cumber and entangle it without limit. Brooke v. Lord Mostyn  2 De. G.J. & S. 373 is the leading authority upon such a case as the present, and in Fadelle v. Bernard  19 W.R. 555. Lord Romilly dealt with a similar, case. The leading authority in this Court is Bibee Solomon v. Abdool Azeez  6 Cal. 687.
15. There can be no doubt that the question whether this compromise is to be regarded as fairly and honestly made must depend upon the facts as they were laid before the Court. If fairly and honestly made and sanction fairly and honestly obtained for it, the compromise cannot be set aside merely because subsequent events have shown that from the infant's point of view it has worked out ill. Up to the present time no mortgagee has disturbed the company's possession of any property. Being desirous of setting the compromise aside for other reasons altogether, the plaintiff picks out these mortgages as the best subject-matter for a case of concealment of material facts. He does not really prove that they were concealed at all. The range of the dispute in the suit required the Court to consider a great many circumstances, some of them of greater importance than these mortgages. It is evident to ma that the Court proceeded upon a broad view of the case and upon the opinion that as the interests of the infant were being dealt with in the same manner as the interests of his relatives, including his brothers, the interests of the infant lay in furthering a scheme to which the whole family were parties. The phrase 'equitable fraud' is no longer employed and it is clear enough that if material facts were concealed from the Court, whether by negligence or design, a compromise can be set aside. But the mere production of the minute of the Court officer does not satisfy me that no information was given to the Court as to these mortgages or that any information was withheld which upon a reasonable view of the case taken as a whole might have altered the conclusion arrived at by the learned Judge. I think, therefore, that this part of the plaintiff's case fails.
16. Now, the consent decree having been made on 6th June 1922 we depend upon the correspondence which has been put in and the evidence of Satindra Deb Manna for the subsequent history of the matter.
17. On 13th October 1923, the defendant company, the Jan Bazar Manna Estate Limited, was registered with a capital not of Rs. 1,40,000, as required by the decree, but of Rs. 14,000 only in shares of Rs. 100. If the plaintiff, or his brother Ranendra acting for him, either as guardian-ad-litem or a natural guardian, had leased to the company his one-seventh share of the properties, he would have received shares amounting not to Rs. 20,000 but to Rs. 2,000 in nominal value. So long as no shares were issued otherwise than in accordance with the consent decree, it is not certain whether the plaintiff would have been prejudiced by the fact that the nominal capital of the company was ten times smaller than had been agreed upon. But the articles of the company (Article 51) authorized the directors to increase the capital and authorized them, after offering new shares to the members in proportion to their holdings, to deal with the new shares as they liked the directors might, therefore, create new shares and allot them for cash in certain events. At an early stage, prior to the registration of the company. Ranendra, on his own behalf and on behalf of the plaintiff, did signify his approval of the draft memorandum and articles, but before the registration of the company took place he withdrew therefrom and refused to sign the memorandum. In like manner Ranendra refused altogether at any time to approve the draft lease-which was put forward to him by the company. Notwithstanding the objections of Ranendra and his three brothers, the company was registered and on 15th May 1924 the receiver made over possession of the properties in his hands to the company; Ranendra and his brothers had notice of the receiver's intention but in no way consented to his act. Certain of the plaintiff's uncles who had signed the memorandum proceeded to manage the company, not-without a considerable amount of quarrelling amongst themselves. At one time Robindra threatened to be obstructive and Satindra, one of the uncles who had mortgaged his share, began to prefer a scheme for selling the property to the scheme which had been approved by the Court. In the meantime no single party executed the draft lease and to this day the company has obtained no lease from anyone.
18. In 1926 after the plaintiff had acquired majority in 1925, the company applied to the Court to have the consent decree enforced in execution by directing the parties to execute the lease. The plaintiff and others resisted the application successfully both on the ground that they had never agreed to the company being formed with a capital of Rs. 14,000 only and on the ground-of delay and change of circumstances in the meantime. They took exception also to certain of the objects mentioned in the memorandum. The learned Judge refused to make any order on this application both upon the ground that the company had no right to make it and also on the ground that the terms embodied in the consent decree did not authorize him to compel the parties to execute a lease to this company.
19. Until the plaint in the present suit was filed, in May 1927, matters dragged on without any progress. From 1924 until now the company has been in possession of the property though it has obtained no lease from any of the parties not even from the signatories to the memorandum or its own directors. The plaintiff and his three brothers have not at any time accepted anything by way of rent from the company. The company claims that all the other parties have accepted rant. There is no evidence that the plaintiff or his brothers have received any money from the company for the worship of the Thakurani and there is no evidence that the plaintiff or his brothers have in any way recognized the company, though it is true that Ranendra did take from the receiver, under Clause 16 of the consent decree the sum of Rs. 5,000 and it may also be true that they have received the arrears of maintenance therein mentioned from the receiver soon after the consent decree was passed.
20. I do not consider it material to set out the transactions which have taken place between the company and the plaintiffs uncles. But the evidence of Satindra shows that since the date of the consent decree, several of the uncles have been executing mortgages over their shares. Nogendra, Satindra, Surendra, Robindra and Rajendra all appear to have mortgaged their shares for large amounts.
21. After this suit had been instituted namely in July 1927, the company purported to increase its nominal capital up to Rs. 1,40,000. The resolution not only purported to increase the capital but to allot the increase to the parties in the previous suit in proportion to their interest in the joint estate and in terms of the consent decree.
22. In these circumstances the learned Counsel for the plaintiff contends that it is no longer possible to enforce the terms of the consent decree upon him and no longer possible for him to enforce the terms of the consent decree upon anybody else. He claims in this suit to re-open the matter and asks for a partition disregarding the decree. Looking at the present suit as one for partition of joint property he refers us to Nasratullah v. Mujitullah  13 All. 309 in which it was said:
It appears to as that when a decree declaring a right to partition has not been given effect to by the parties proceeding to partition in accordance with it, it is competent for the parties or any of them, if they still continue to be interested in the joint property, to bring another suit for a declaration of a right to a partition in case their right to partition is called in question at a time when, by reason, of limitation or otherwise, they cannot put into effect the decree first obtained. In this respect suits for declaration of right to partition differ from most other suits. So long as the property is jointly held go long does a right to partition continue.
23. In Mukerji v. Afzal Beg  37 All. 155 the plaintiff had brought a suit for partition which was compromised, the defendant agreeing to transfer his rights to the plaintiff for a certain sum. This agreement was never carried out. The plaintiff brought a fresh suit for partition and alleged that the predecessor of the defendants refused to carry out the sale. It was held that
since the defendants or their predecessors-in-title failed to carry out the compromise, the parties ware relegated to their rights as they existed prior to the compromise.
24. There is a decision of this Court to the same effect : Madon Mohon v. Raikanta  10 C.W.N. 839, approved in Mansharam v. Gonesh  16 I.C. 383. The learned Judge has referred to Rameswar v Ram Bahadur  34 Cal. 70, but the facts of this case are more clearly seen from the report in 31 Calcutta 110 and show it to be a case in which the plaintiff, unless he succeeded in setting aside a consent decree, had no interest in the property.
25. The Advocate-General for the defendant company contends that rights have vested in the company under the consent decree and that it is too late now to go behind that decree. But it is clear enough in my opinion that the company has no agreement with the plaintiff or any of his brothers. The fact that the receiver handed over all the properties to the company in 1924 without the consent of the plaintiff or his guardian and in Spite of their refusal to have anything to do with the company or to accept its shares, does not in any way amount to an agreement. The learned Advocate-General contended before us that Article 3 of the Articles of Association amount, in view of Section 21, Companies Act, to an agreement between the company and the plaintiff. It. does not seem to me that even if the plaintiff were a member of the company, an agreement could in this way be made out Eley v. Positive Assurance Co.  1 Ex. Div. 20 and Hickman v. Kent  1 Ch. 881. But the plaintiff is not a member of the company and owed no duty to become one or to have any dealings with the company whether under the consent decree or otherwise. The company has, from its commencement, had full notice of the terms of the consent decree and no transactions which it has had with the plaintiff's, uncles can disentitle the plaintiff to any relief which is otherwise within his rights.
26. If, however, we regard the matter entirely as one between the parties to the previous suit, it is evident first that that suit was not a mere suit for partition, but was a suit for administration of the estates of Mohesh and Debendra and that there are provisions in the consent decree which are really directed to the winding up of these estates; secondly that while an owner of joint property may always ask for partition, the claim in the present suit is not for partition on the basis of the consent decree. We have therefore, to see whether the plaintiff has shown that in the events that have happened the consent decree is no longer binding upon him. On this part of the case, both the plaintiff's pleadings and evidence are extraordinarily scrappy and unsatisfactory. In para. 16 of the plaint he says that none of the parties are even now in a position to transfer their shares and in para. 18 he repeats the statement, the shares of Rajandra and Satindra being specially mentioned. Copies of two mortgages (apparently the mortgages of 22nd February 1918 and 27th September 1925 by Satindra) appear to have been adduced in evidence though they were not ultimately exhibited. A copy of a mortgage by Surendra to Raghunath Das Shewlal, dated 28th July 1925, has been put in evidence. Apparently a list of ten mortgages was handed to the learned Judge. This was all the evidence adduced by the plaintiff in addition to the bundle of correspondence which does not seem to throw any light upon these mortgages. The defendant company called Satindra and he was cross-examined about his own mortgages. He said that the defendant Satyendra Nath Modak was a benamidar of Rabindra. Now unless the plaintiff can prove properly and conclusively that by reason of the mortgages executed by his uncles subsequent to the consent decree a company formed in accordance with the decree would obtain an invalid title to a lease for 99 years so far as the shares of the mortgagors are concerned, he fails, as it seems to me, upon this evidence, to make any case for saying that the consent decree, if originally valid, has ceased to be binding upon him. On the evidence as it stands it would appear that the defendant company has now conformed to the terms of the consent decree as regards its capital. The plaintiff and his guardian Rajandra are not shown by the evidence to have objected to this company originally because of the amount of its nominal capital. This point indeed is rendered very doubtful by the letter of 28th June 1924, 21st April 1925, 22nd April 1925, 24th April 1925, 1st May 1925 and 27th July 1925, though their solicitors' letter of 11th January 1926 shows that by this time they were taking this point as an objection. Now that this objection has been removed, it is by no means evident to me, apart from the question as to the mortgages entered into subsequent to the decree by the plaintiff's uncles, that it is impossible to carry out the consent decree.
27. What then is the position as regards the mortgages upon the evidence in this case? If all the parties were to execute a lease to the company as they promised to do, would the company's possession of the property under the lease be liable to be disturbed by the mortgagees or purchasers under decrees for the enforcement of their securities? The receiver in the previous suit was in possession until May 1924. Since that date the company has been in possession. Some of the parties have been acting under the decree and an application in execution was made in 1926. It is by no means evident to me, therefore, that if, under the consent decree, a lease was executed by these parties tomorrow, the mortgages would have priority over the lease. As the company has been in possession of the property, good evidence would be required to 'show that any mortgagee had taken without notice of the rights of the parties under the consent decree. Upon clear proof that the scheme of the consent decree was no longer possible, it may be that the plaintiff could make a case on the lines of Chaudhri Ahmad Bakhsh v. Seth Raghubar  28 All. 1 where Lord Davey said:
Their Lordships are of opinion that a new decree which could only be regularly made in a fresh suit was in the circumstances required in order to give effect to the rights of parties and do justice between them.
28. But in my opinion this part of the plaintiff's case fails upon the facts proved by the evidence.
29. In these circumstances, the plaintiff's suit fails. If the plaintiff desires to have any relief upon the footing of the consent decree, this relief must be obtained in a suit properly framed for the purpose. The appeal should be dismissed with costs.
C.C. Ghose, J.
30. I agree.