Brett and Gupta, JJ.
1. The present suit is the outcome of a previous suit, No. 35 of 1891, instituted by Iswar Chandra Deo Dhabal Deb, the father of the present plaintiff, against defendant No. 1, Raja Satrugban Deo Dhabal, to hare his right declared to succeed as heir to the Raj of Dhalbhoom on the death of Raja Ram Chunder Dhal No. Ill and to recover possession of the property from the defendant. In that suit, a petition of compromise was filed on the 25th November 1892, and the suit was decreed according to the terms of the compromise on the 30th November 1892.
2. The terms of the compromise, in brief, were that Raja Satrughan Deo Dhabal was to remain as Raja during his lifetime; that on his death his children, if any, would succeed; that if he died childless, the estate was to go to Iswar Chandra Deo Dhabal. Further, Raja Satrughan agreed to execute in favour of Iswar Chandra a putni lease of a compact portion of the Dhalbhoom estate yielding an annual income of Rs. 9.07;' and paying a rental of Rs. 75 per annum, as well as customary presents. The Dhalbhoom estate was at that time under the management of Government under the Encumbered Estates Act (VI of 1876), and the agreement was that the lease should be given three months after the estate was released. The estate was in fact released on the 5th May 1899.
3. Execution of the decree does not appear to have been token out until 1901. It was opposed by defendant No. 1, and on the 4th July 1902 the application was dismissed, the Judge holding that as the decree left the property undetermined the decree was incapable of execution.
4. The present suit was instituted on the 8th July 1903 and sought as against defendant No. 1 specific performance of the agreement contained in the compromise-decree of the 30th November 1892, to execute the putni lease in favour of the plaintiff, who is the minor son of Iswar Chandra Deo Dbabal. There were added as defendants Rani Siromoni, the eldest widow of Raja Ram Chunder Dhal III, and Nityanunda Dhal, the uncle of Iswar Chandra Deo Dhal's father, and other claimants to the Dhalbhoom Raj, and the manager under the Encumbered Estates Act.
5. It must be noticed that, subsequent to the institution of the suit, the estate has again been taken charge of by Government under Act VI of 1876, and. an objection has been taken on behalf of the respondent that under Section 3, Clause 1 of the Act, the present appeal is barred.
6. The following brief statement of events subsequent to the death of Raja Ram Chunder Dhal III is necessary to explain the present position of the parties. Raja Ram Chunder Dhal III died in January 1887, and his senior widow Rani Siromoni in the following February applied for registration of her name as heiress to the estate. Raja Satrughan Dhal opposed the application. It was allowed by the Deputy Commissioner of Singhbhum on the 4th of June 1887; but on appeal it was dismissed, and it was ordered that Raja Satrughan should be registered as proprietor of the Dhalbhoom Estate. On the 24th of April 1888 the Board of Revenue confirmed the order of the Commissioner, and at the same time dismissed the claim, which had been made daring the proceedings before it by Nityanunda Dhal for possession of the Raj. Afterwards on the 4th of October 1888 Nityanunda filed a suit in the Court of the Deputy Commissioner of Singhbhum, and Rani Siromoni filed another on the 6th of December 1888 in the Court of the District Judge of Bankura, each claiming to recover in their own right the Raj from Raja Satrughan Dhal, and to have the orders of the Revenue Courts cancelled.
7. The manager under the Encumbered Estates Act refused to supply Raja Satrughan with finances to contest the suit on the ground that as manager he had nothing to do with the question of succession to the Raj and that the parties must fight the matter out between themselves. This attitude of the manager has led to the subsequent complications out of which this suit has arisen. Raja Satrughan borrowed money from Iswar Chandra, who belonged to the same branch of the family as Nityanunda and who held the Raj of Jamboni. Iswar Chandra in lending the money to Raja Satrughan seems to have been influenced by the motive of acquiring some claim over the Raj of Dhalbhum. The suit brought by Nityanunda was fought out by his grandson Mahesh Chandra Dhabal up to the Privy Council, and was in the end dismissed on the 27th of February 1902; and the suit of Rani Siromoni met with a similar fate. Iswar Chandra, however, quarrelled with Raja Satrughan during the course of that litigation, and in order to embarrass him, himself set up a claim to the Raj and finally instituted suit No. 35 of 1891. In that suit the compromise was made which the plaintiff, the son of Iswar Chandra, seeks to enforce in this suit.
8. The hearing of the suit was postponed for various reasons in the Court of the Subordinate Judge, and on the 26th of January 1904, the Subordinate Judge recorded the following order: 'The pleaders of the parties disagree in having the issues in bar heard and decided at first. The Court will therefore hear the case on merits and as well as on other questions, unless both the parties move the Court by a joint petition to have the issues in bar heard at first.' On the 19th of May, however, after numerous adjournments to secure the attendance of witnesses and for other causes, the Subordinate Judge recorded an order stating that, as the defendant could not produce his witnesses on the date fixed for hearing and as he prayed that the law questions should be tried first, therefore the case would be heard on the law points on the 6th June. Orders were issued for the attendance of witnesses on the 18th and 20th of June: no objection appears to have been taken to this order. The hearing continued from the 6th to the 11th June additional issues being framed and documentary evidence admitted. On the 24th of June judgment was delivered dismissing the suit.
9. A plea in bar had been raised that the suit not falling within the provisions of Section 16 of the Civil Procedure Code the Subordinate Judge of Midnapore had no jurisdiction to try it. A part of the Dhalbhoom estate, however falls within the local limits of the jurisdiction of the Subordinate Judge of Midnapore, and the Subordinate Judge after discussing the various cases to which he was referred by both parties, held that he had jurisdiction.
10. On the merits, he held that under the compromise no agreement was created, which could be enforced by suit. He held that the agreement was not enforceable by reason of its being contrary to the policy of the law (Act VI of 1876), by reason of failure of consideration, by reason of its having been obtained by undue influence, by reason of its being obnoxious to the rule against perpetuity, and because it did not disclose a case for specific performance. Further, as the agreement was against law and without consideration, he held that it was not a case for awarding damages to the plaintiff in substitution for specific performance.
11. The plaintiff has appealed, and the main contention in support of the appeal is that the Subordinate Judge erred in law in dismissing the suit, without taking the evidence of the parties, and that, though he professes to determine points of law only, he has in truth decided issues of fact, which he ought not to have entered into and could not Lave decided without hearing evidence. It is urged that such matters as failure of consideration and undue influence could not have been disposed of except after hearing the evidence of the parties, and if; is further argued that the question, whether the agreement was valid and binding on defendant No. 1, could not be satisfactorily disposed of without recording evidence.
12. We may say at once that so far as the pure questions of fact are concerned we agree that the Subordinate Judge erred in coming to a finding on them without taking evidence; such questions are those of undue influence and failure of consideration. But after hearing the arguments on both sides we think that there are sufficient grounds of law why the present appeal must be dismissed, and that this is clear on the pleadings and on the documentary evidence, which was considered by the Subordinate Judge and has also been placed before us.
13. Objection has been taken before us to the receipt of this evidence by the Subordinate Judge, but as it seems to have been admitted and referred to by both parties without protest, we think the objection cannot be sustained.
14. On the question of jurisdiction, which was decided by the Subordinate Judge in favour of the plaintiff, we think his conclusion is correct. The question has been fully discussed by Mr. Justice Trevelyan in the case of Land Mortgage Bank: v. Sudurudden Ahmed (1892) I.L.R. 19 Calc. 358, where the distinction between a suit brought by a purchaser and one brought by a vendor is clearly pointed out. In the present case the plaintiff is in a position analogous to that of the purchaser, as he sues for specific performance of an agreement to grart the putni lease and for possession of the land covered by the lease, and a portion of the land, which may be covered by the lease, is within the local limits of the jurisdiction of the Subordinate Judge of Midnapore. In our opinion, the suit is maintainable under the provisions of Section 16, Clause (d) of the Code of Civil Procedure see the cases of The Delhi and London Bank v. Wordie (1876) I.L.R. 1 Calc. 249, of Kellie v. Fraser (1877) I.L.R. 2 Calc 445, of Sreenath Roy v. Catty Doss Ghose (1879) I.L.R. 5 Calc. 82.
15. Taking next the objection that (he present appeal is barred by the provisions of Section 3 of Act VI of 1376, we think it must prevail. The first clause of that section runs as follows: 'On the publication of an order under Section 2 the following consequences shall ensue,--first, all proceedings which may then be pending in any Civil Court in British India in lespeet to such debts or liabilities shall be barred, and all processes, executions and attachments for or in respeet of such debts and liabilities shall become null and vaid.' In the case of Kameshar Prasad v. Bhikhan Narain Singh (1893) I.L.R. 20 Calc. 609,625, it was held the expression 'such debts and liabilities' in that section, which expression occurs several times in the Act, means debts and liabilities other than debts due or liabilities incurred to Government and includes every other debt or liability.
16. The agreement, which the plaintiff seeks to enforce, is certainly a liability. It accrued according to the plaintiffs case on the 5th August 1899, and was thus outstanding when the estate was last taken over under the Act by Government. As we see no reason to differ from the view of the law taken by the Judges in the case referred to above, we must hold that the present appeal is barred.
17. Turning now to the points decided against the plaintiff in the Lower Court, we are of opinion that at the time when the agreement was made it was one which Raja Satrughan Dhabal was not competent to make by reason of the disability under which he laboured at the time. It has been suggested by the learned Counsel for the appellant in his argument that Raja Satrughan was not then the proprietor of the estate, and that evidence should have been taken to prove whether he was so or not. After, however, Rani Siromoni and Nityanund Dhal had failed in their suits brought to obtain a declaration of their title to the Raj by inheritance and to recover possession, and after Raja Satrughan had been registered in the Revenue Court as proprietor, it seems idle to contend that Raja Satrughan was not then the acknowledged proprietor of the Raj. The manager appointed after the estate had been taken over under Act VI of 1876 was clearly managing the estate on his behalf. Iswar Chandra in his deposition given on the 27th November 1891 (copy of which was put in before the Subordinate Judge and apparently admitted without objection) practically admitted Raja Satrughan's right to the Raj, and the fact that Ishwar Chandra entered into the agreement with Raja Satrughan in the compromise that Raja Satrughan should grant him a, putni lease out of the Dhalbhoom estate amounts to a further admission by him of Raja Satrughan's title. Since then the title of Raja Satrughan to the Raj has not been attacked, and we must hold that at the time of the compromise Raja Satrughan was actually and rightfully in possession of the Raj. That being the case, we must also hold that Section 3 of Act VI of 1876, Sub-section 3, Clauses (a) and (c), rendered Raja Satrughan incompetent at the time of the compromise to enter into the agreement, which the plaintiff in this suit seeks to enforce.
18. We also hold that the agreement itself cannot be held to have acquired any binding effect by reason of the fact that it was included in the decree passed in the compromise. So far as the suit instituted by Ishwar Chandra related to the succession to the Raj the Civil Court had jurisdiction to entertain and decide it under Section 28 of Act VI of 1876, even after the estate had been taken over by the Government under the Act, but the Court had no jurisdiction to go beyond the question of succession. The agreement relied on is clearly not a matter involving any question of succession. Section 23 of the Act also requires that to a suit brought under that section the manager of the property under the Act shall be made a party. It is true that the manager was at first made a party in the suit and he disclaimed all interest in the question of succession. But before the petition of compromise was filed the suit as against the manager had been withdrawn, and the manager was therefore no party to the compromise. The agreement contained in that compromise, so far as it affected the property under the manager, made behind his back had no binding legal effect upon the estate. It was clearly an agreement in contravention of the objects of the Act and amounted to nothing' more than a personal agreement on the part of Raja Satrughan Dhabal. The fact that the agreement was to be executed three months after the estate had been released from the management under the Act clearly indicates that the plaintiff's father was aware that it was one, which at the time when it was made, Raja Satrughan was incompetent to make. In our opinion, the principle laid down by their Lordships of the Privy Council in the case of Gregson v. Udoy Aditya Deb (1889) I.L.R. 17 Calc. 223,230 applies, and at the time the agreement was made Raja Satrughan was not sui juris and competent to make it. There is no evidence or suggestion in this case that after the release of the estate the Raja ever confirmed the agreement or took any steps to carry it into effect. The agreement moreover was indefinite in its terms and has never since that time been definitely expressed or concluded. It is, therefore, in our opinion not an agreement, which under the circumstances it is possible for any Court to enforce by a decree for specific performance. Certainly it cannot be enforced now, when the estate is again under the management of the Government under the Encumbered Estates Act.
19. Lastly, the question has been raised whether the Subordinate Judge is right in holding that the agreement is bad as infringing the law of perpetuities. The point is of minor importance, but we think that the Subordinate Judge had sufficient grounds in this case for his decision. As he points out, the rule requiring the release of the property from management under Act VI of 1876 after the expiration of 15 years was rescinded by the amending Act V of 1884. The Dhalbhoom estate might not therefore have been released within the period limited by the law of perpetuities [see the case of Candi Caurn Barua v. Sidheswari Debi (1888) I.L.R. 16 Calc. 71 and the cases referred to in Tagore Law Lectures of 1898, pp 127, 128].
20. We think therefore that on the points of law raised in the issues the Subordinate Judge was right in holding that the suit of the plaintiff could not succeed, and we further hold that under the provisions of Section 3, Clause 1 of Act VI of 1876, the present appeal is barred.
21. The result is that 'we confirm the judgment and decree of the Subordinate Judge and dismiss the appeal with costs.