Mookerjee and Carnduff, JJ.
1. This is an appeal on behalf of the plaintiff in a suit for declaration that a consent-decree to which she was not a party, is in no way binding upon her in respect of the estate dealt with by that decree. The subject-matter of the litigation out of which this appeal has arisen, belonged at one time to Rajballav Seal, a wealthy I Hindu of the Subarnabanik caste, who died on the 1st June, 1870. Two days before his death, Rajballav made a testamentary disposition of his properties, moveable and immoveble, which were of considerable value and were situated principally in the suburbs of this city. He left him surviving his widow, Mati Dasee, and three grandsons by a daughter born of another wife, both of whom had predeceased him. The relationship between the principal parties to the present litigation 0may be illustrated by the annexed genealogical table:
died 10th June, 1870.
Second wife, Third wife,
Chandra Mani, Mati Dasee,
died before 1870. died 27th September, 1899.
Daughter, Lakhya Hira, -----------------------
died before 1870, | |
| First adopted son, Second adopted son,
-------------------------- Jogendra Nath Seal, Amulya Charan,
| | | adopted 6-3-1873, adopted 18th April,
Kali Das Sen, Bhola Nath Sarthak died 30th Novem- 1888; died April,
died 1905. Sen, defdt. No. 3. Chandra Sen, ber, 1886; mar- 1905.
| died 26th July, ried Katyayani
Bankim 1880. Dasee, defdt. No. 1,
Chandra Sen, |
defendant No. 2, Rajlakshmi
Kanai Lal Sen,
defendant No. 4.
Katyayani Dasee, married Amulya Charan,
Jogendra Nath Seal. adopted by Mati Dasee.
2. Upon the death of Rajballav Seal, probate of his will was taken out on the 16th July, 1870, by his executors, one of whom was his widow, Mati Dasee. On the 6th March, 1872, Mati Dasee adopted Jogendra Nath, who subsequently married Katyayani Dasee, the daughter of Kanai Lal Sen (the fourth defendant in the present suit). Jogendra died on the 30th November, 1886, when he is said to have been about 17 years old. He left him surviving his widow and an infant daughter, Rajlakshmi Dasee, at that time less than a year old. Rajlakshmi Dasee has subsequently married one Bholanath Dhar, and sons have been born to her; she is the plaintiff in the present litigation. After the death of the first adopted son, Jogendra Nath, Mati Dasee, purporting to act in accordance with the provisions of the will of her husband, took in adoption Amulya Charan, the son of Kanai Lal Sen. In other words, Kanai Lal, who had previously given his daughter in marriage to the first adopted son of Mati Dasee, upon the death of his son-in-law gave away his son to be adopted by Mati Dasee. Amulya Charan was never married, and died in April, 1905. Rajballav, as we have already stated, had, before his marriage with Mati Dasee, taken another wife, by name Chandra Mani, who predeceased him. By her he had a daughter Lakhya Hira, who also predeceased him. Lakhya Hira left three sons - Kali Das Sen, Bhola Nath Sen, and Sarthak Chandra Sen. The youngest of these, Sarthak, died unmarried on the 26th July, 1880, and whatever interest had been taken by him in the estate of his maternal grand-father Rajballav, vested in his brother Kali Das and Bhola Nath. Kali Das died in 1905, and left a son Bankim Chandra, who is the second defendant in this suit. Bhola Nath is the third defendant. Kanai Lal Sen is the fourth defendant. Katyayani Dasee, the widow of Jogendra and mother of the plaintiff, is the first defendant. The fifth defendant, Shib Krishna, is a mortgagee from the second and third defendants, while the sixth defendant, Barada Kanta, is a receiver appointed by the Court in a previous suit relating to the subject-matter of the present litigation. The plaintiff seeks for a declaration that a consent-decree which was made in a previous litigation between the first four defendants, is in no way binding upon her as the reversionary heir to the estate of her father, Jogendra Nath Seal. In order to make the relative positions of the parties intelligible, and to enable us to appreciate the questions raised in the present litigation, it is essential to set out in full detail the circumstances of the previous litigations relating to the estate of Rajballav Seal, and to explain how the consent-decree now impeached came to be made. We may add that the facts we are about to narrate are all matters of record, and have been derived from the records of the previous litigations, which, at the request of the parties, we have called for and minutely examined.
3. Upon the death of Rajballav Seal and after probate of his will had been taken out by the executors mentioned therein, the estate came into their hands. Under the provisions of the will the income of the estate had to be divided in certain proportions between the grandsons of the testator on the one hand, and the widow on the other. On the 21st July, 1890, the surviving grandsons, Kali Das and Bhola Nath, commenced an action on the Original Side of this Court (Suit No. 336 of 1890) for construction of the will of Rajballav Seal, for determination of the rights of all parties there under, for administration of the estate, for accounts and for other incidental reliefs. The defendants to this action were the widow, Mati Dasee, executrix to the will of the testator, Henry Remfry and Bholanath Chunder, the other two executors mentioned in the will, Amulya Charan Seal, the second adopted son taken by Mati Dasee, and Katyayani Dasee, the widow of the first adopted son, Jogendra Nath; Mati Dasee resisted the claim substantially on the ground that the charges of misconduct were wholly unfounded, that, upon a proper construction of the will, the then plaintiffs were not entitled to a fourth share of the income claimed by them, that they were at best entitled to maintenance, and that they had been properly maintained by her since the death of the testator. The other executors, Remfry and Chunder, denied all liability on the ground that they had retired from the office of executor, and that the estate had been managed by Mati Dasee alone. Amulya Charan Seal, represented by his natural father, Kanai Lal Sen, as his guardian ad litem, contended that he was not a proper or necessary party to the suit, and a similar position was taken up by Katyayani, who admitted in the second paragraph of her written statement that, since the death of her husband, she and her infant daughter lived with, and had been maintained by, her mother-in-law, Mati Dasee, up to the month of August, 1890. On the 8th April, 1892, Mr. Justice Trevelyan made a preliminary decree in the suit. He dismissed the suit against the defendants other than Mati Dasee, that is, as against the two executor-defendants, the second adopted son and the widow of the first adopted son. He declared, however, that the plaintiffs, Kali Das and Bhola Nath, were entitled to an one-fourth share of the properties belonging to the estate of Rajballav Seal, and he directed enquiries upon three points, namely, first, as to the extent of the estate of the testator, secondly, as to the net income of the residuary estate for the three years antecedent to the institution of the suit, and, thirdly, as to what portion of the income had been paid to the plaintiff and what, if anything, remained due to them. We have found from an examination of the records that a fair copy of the judgment upon which this decree was based was never drawn up and signed by Mr. Justice Trevelyan, and the only record of it in existence is the entry in the Court Minute Book of the 4th April, 1892. This entry shows that the question of construction of the will was argued on behalf of the plaintiffs, while on behalf of Katyayani and Amulya Charan, who were represented by the same learned Counsel, it was contended that they were not necessary parties. The Court thereupon delivered judgment : 'Declaration that the sons (grandsons) of the testator are entitled to this share (?) of the testator, which is one-fourth share of the property. They are entitled to such share absolutely. That being so, they are entitled to a decree against Mati Dasee. As to Mati Dasee, there must be an enquiry as to what the estate of the testator consisted of at the time of his death and what the income of the residuary estate has been during the last three years, before the filing of the plaint, and what portion of the income has been paid to the plaintiffs and what remains due to them. Court is disposed to think that the suit ought to be dismissed as against Mr. Remfry and also dismissed as against Mr. Sales clients (Amulya Charan and Katyayani Dasee), but Court will consider that question and will also consider the question of costs.' The question was, however, not further considered, and on the 8th April, 1892, although the suit was expressly dismissed as against the executor Bholanath, the only order made as to Amulya and Katyayani was that they should receive their costs out of the estate. Subsequently, the decree we have mentioned was filed on the 13th February, 1894. The enquiries directed by the preliminary decree were made and the accounts taken. In due course, a report was submitted on the 31st January, 1896, which showed that, so far from anything being due by Mati Dasee to the plaintiffs, Rs. 217 was due to her by the plaintiffs, together with certain costs. On the 8th September, 1896, Mr. Justice Ameer Ali made a supplementary decree, which defined the properties comprised in the estate of Rajballav at the time of his death and declared that the plaintiffs had been over-paid. The decree, however, reserved to the plaintiffs liberty to apply to the Court for payment to them of an one-fourth share of the income of the estate. Directions were also given in the matter of costs, to which detailed reference is not needed for our present purposes. Subsequently, upon the death of Mati Dasee, Kanai Lal Sen, who claimed to be the sole executor under a will alleged to have been executed by her on the Kith February, 1899, applied to the Court on the 30th November, 1899, to be substituted on the record as her representative in interest. A Rule was issued, and the matter came to be heard by Mr. Justice Sale. On the 26th March, 1900, that learned Judge held that the preliminary decree had been made by Mr. Justice Trevelyan on the 8th April, 1892, and what must be deemed as the final decree, had been made by Mr. Justice Ameer Ali on the 8th September, 1896. He further observed that this latter decree was intended to be a final decree, except as to one matter which was held over; that is, that, except in so far as Mr. Justice Ameer Ali had reserved liberty to the plaintiffs to have the one-fourth share of the income of the estate paid to them, his decree must be taken to have finally disposed of the suit which could no longer be treated as a pending suit, except for the payment of costs and such sums as might be due to the plaintiffs on account of the income accrued due during the lifetime of Mati Dasee. The Court also observed that new matters had arisen owing to the death of Mati Dasee, and amongst these were the questions as to who was entitled to the estate and whether it might now be distributed among the persons entitled thereto, questions which must be dealt with, if at all, in a fresh suit supplemental or otherwise. In this view, Mr. Justice Sale discharged the Rule, and, so far as we have been able to gather from an examination of the entire records of that suit, no further proceedings have been taken in the matter up to the present stage.
4. The second litigation in respect of the estate of Rajballav Seal, which we have next to examine, was commenced on the 9th October, 1901, in the Court of the Subordinate Judge of the 24-Pergannahs by Amulya Charan Seal, the second adopted son, by his next friend and natural father, Kanai Lal Sen.
5. The first two defendants in this suit were Kali Das Sen and Bhola Nath Sen, and the third defendant was the sister of the then plaintiff, Katyayani Dasee, the widow of the first adopted son, Jogendra Nath. This suit is referred to in the present proceedings as Title Suit No. 127 of 1901, and it appears to have been re-numbered as No. 10 of 1902. In the plaint, the suit was described as one for construction of the will of Rajballav Seal, for possession of his estate, for partition and accounts, and it was valued at Rs. 10,500. The case for the plaintiff was that, as the second adopted son of Rajballav, he was entitled under the terms of his testamentary disposition to a three-fourths share of the estate left by him, and the first two defendants, the grandsons by the daughter, were entitled to the remaining one-fourth share of the estate. The plaintiff alleged that upon the death of Mati Dasee on the 27th September, 1899, the first two defendants took forcible possession of the entire estate, and that consequently he was entitled to have the will construed and to be placed in possession of his share of the estate. The first two defendants resisted the claim on the ground that the plaintiff had no title at all, that his adoption at a time when the widow of the first adopted son was still alive, was clearly void and ineffectual, and that consequently he was not entitled to obtain possession of any portion of the estate of Rajballav Seal. The third defendant, Katyayani Dasee, the sister of the plaintiff, who, as appears from the evidence in the present litigation, at that time as now acted under the advice and guidance of her father, who himself was the next friend of his infant son, the plaintiff, filed a written statement in which she denied that the plaintiff had any interest in the estate of the testator, except possibly that attributable to a right of maintenance. She asserted that, as the widow of the first adopted son, Jogendra Nath, she was entitled to an undivided three-fourths share of the estate of Rajballav, which had vested in her husband, but had been wrongfully seized by the first two defendants. She prayed accordingly that an account might be taken of the estate as it existed at the time of the death of Mati Dasee, that the will of Rajballav might be construed, that the rights of all the parties might be ascertained and declared, and that a partition of the estate might be effected and possession given of the different shares to the parties found entitled thereto. She added in conclusion, that, if the Court determined that she was not entitled to a definite share of the estate, her right to maintenance might be declared and made a charge thereon. The position, therefore, was that the plaintiff Amulya Charan and the third defendant Katyayani Dasee were agreed that the first two defendants, the grandsons of Bajballav, were not entitled to more than a fourth share of the estate; although nominally arrayed one against the other, they were in fact united against their common enemy, the Sens, and their joint prayer in substance was that the three-fourths share, which had been seized by the Sens, might be taken out of their hands and given over either to the plaintiff or to the third defendant. In fact, any other position was. impossible, because the plaintiff and the third defendant were entirely in the hands of their father, Kanai Lal Sen; the object of the suit was not so much to settle any real controversy between the brother and the sister, who had, by reason respectively of his adoption and her marriage, become brother-in-law and sister-in-law, as to recover the three-fourths share of the estate from the hands of the Sens. That this, was indubitably the true position, is clear from the admission made by Kanai Lal and Katyayani Dasee in the present litigation, that the arrangement between Amulya and Katyayani Dasee was that, whoever might be held by the Court to be entitled to the three-fourths share of the estate, upon recovery thereof, it would be equally divided between the brother and the sister. In truth the fight was between Kanai Lal Sen on the one hand, and Kali Das Sen and Bhola Nath Sen on the other. His object obviously was to recover the three-fourths share of the estate from the hands of these latter persons, and to have it equally divided between his own son and daughter. The Sens resisted the claim of the plaintiff, as we have already stated, on the ground that his adoption was invalid, because it had been made at a time when the widow of the first adopted son was alive.
6. A preliminary issue was consequently raised, namely, whether the plaintiff was validly adopted in view of the fact that the first adopted son had left a widow and a daughter. On the 5th January, 1903, the Subordinate Judge held that, upon the death of the first adopted son, leaving a widow and a daughter, her authority to take a second son in adoption came to an end, and that, consequently, the adoption of the plaintiff, Amulya, was wholly inoperative, and he was in no way interested in the estate or entitled to maintain a suit in respect thereof. In this view, the Subordinate Judge dismissed the suit. On the 9th February, 1903, Amulya Charan appealed to this Court against the decree of dismissal, and the respondents to the appeal were the three defendants, namely, the two Sens and Katyayani Dasee. On the 28th March, 1905, the appeal was dismissed by this Court: Amulya Charan Seal v. Kali Das Sen (1905) I.L.R. 32 Cale. 861. The learned Judges who heard the appeal held that the adoption of the plaintiff was not valid, because the authority conferred upon Mati Dasee by her husband, to adopt a second son terminated when the first adopted son died leaving a widow and a daughter. The learned Judges, however, went on to examine another argument advanced on behalf of the B appellant, namely, that upon a true construction of the will of Rajballav, his estate slid not vest in Jogendra Nath before his I death, that the widow of the latter, Katyayani, did not inherit any property from her husband, and that such share of the property remained in Mati Dasee, with the result that she was competent to exercise the power vested in he as regards the adoption of a second son upon the death of the first adopted son before attaining the age of 20 years, The Court over-ruled this contention in the view that, as the scheme of the will was that the estate, should not vest in any person until the death of Mati Dasee, there was an intestacy as to the corpus, so that the estate vested by law in the legal heir, Jogendra, and subsequently passed by-succession to his widow, Katyayani Dasee. It will be observed that this view was not only sufficient to defeat the claim of the plaintiff Amulya, but also negatived the claim of the Sens, who, upon the common case of the plaintiff Amulya and Katyayani Dasee, were entitled to an one-fourth share of the estate. In other words, upon this view, Katyayani Dasee would be entitled, not to a three-fourths share as claimed by her, but to the whole of the estate. To put the matter in another way, this view not merely led to the dismissal of the suit of Amulya, but rendered inevitable a controversy between Kali Das and Bhola Nath on the one Land, and Katyayani on the other. The result of the decision, as we shall see hereafter, did affect the conduct of the parties in a subsequent litigation. For the present, we need mention only that the Court affirmed the decree of the Subordinate Judge and dismissed the appeal. Amulya died shortly after in April, 1905.
7. The third litigation, the details of which now require careful consideration and examination, had been commenced by Katyayani Dasee on the 13th January, 1903, in the Court of the Subordinate Judge of the 24-Pergannahs. It is important to observe the significance of this date. The Subordinate Judge, who tried the suit of Amulya Charan, had, as we have already stated, dismissed it on the 5th January, 1903. The view taken by him was that the adoption of Amulya was invalid, go that Katyayani Dasee was entitled to a three-fourths share as alleged by her, and Kali Das and Bhola Nath to the remaining' one-fourth share. Although an appeal was preferred against this decree on behalf of Amulya Charan by his father, Kanai Lal Sen, the latter possibly anticipated considerable difficulty in the way of success, and consequently, within eight days of the dismissal of the suit of Amulya, he had another suit instituted by his daughter, Katyayani Dasee, for recovery of the estate. That he was the leading spirit in all these litigations, whether fought in the name of Amulya Charan or in that of Katyayani, is abundantly clear upon the evidence, and indeed, has not been seriously disputed before Rs. The parties defendants to the suit of Katyayani Dasee were Kali Das and Bhola Nath, the two grandsons of Rajballav, Amulya Charan Seal, the natural brother of the then plaintiff and second adopted son of Mati Dasee, and Barada Kanta Sarkar, an officer of the Court, who had been appointed receiver of the estate in the suit of Amulya. It is necessary to observe that the suit was valued at Rs. 2,100, whereas the suit of Amulya Charan had been valued at Rs. 10,500, and court-fees were paid upon the smaller valuation, so that, whereas in the suit of Amulya, court-fees had been paid upon the plaint to the extent of Rs. 490, court-fees to the extent of Rs. 130 only were paid upon the plaint filed by Katyayani Dasee, although the subject-matters of the two litigations were identical.
8. The plaint in the suit of Katyayani Dasee asked for construction of the will of Rajballav, for declaration of title, for recovery of possession, for partition and accounts, and for incidental reliefs. Katyayani Dasee alleged that she was entitled, as the widow of Jogendra Nath, to a three-fourths share of the estate of Rajballav Seal, that the defendants Kali Das and Bhola Nath were entitled to a fourth share, and that consequently she was entitled to recover possession of a three-fourths share of the whole estate, which at the time was in the custody of the receiver. The first two defendants, Kali Das and Bhola Nath, resisted the claim on various grounds, some-of them obviously idle and futile. They denied the genuine; ness of the will of Rajballav they questioned the factum and validity of the adoption of Jogendra Nath, and, contended that neither Jogendra nor the plaintiff, as his widow, was entitled to any portion of the estate. The third defendant, Amulya Oharan, filed a written statement, through his natural father and guardian ad litem, Kanai Lal Sen, in which he urged that, upon a true construction of the will of Rajballav, the plaintiff had taken no interest in his estate, that his. own adoption was valid and operative, that, as such second adopted son, he was entitled to a three-fourths of the estate, that he might be awarded such share, and that, if the Court should decide against him upon the question of title, provision might be made for his maintenance. The true position, therefore, in so far as Katyayani Dasee and Amulya Charan were concerned, was precisely identical with what it was in the suit of Amulya Charan. The brother and the sister were united against their common foe, the Sens, in whose favour they conceded an one-fourth share of the estate. As between themselves, Katyayani Dasee urged that she was entitled to a three-fourths share, while Amulya controverted the claim mainly on the strength of the appeal which had already been preferred by him to this Court against the adverse decision in his suit. This obviously was the only position possible, for, as we have already explained, it was Kanai Lal Sen who managed the litigation on behalf of both the son and the daughter, who were at the time nominally arrayed against each other, but were really united, as is now abundantly clear; for there was a secret understanding between them that, whoever might succeed, the estate recovered from the Sens, that is, the three-fourths share, would be divided equally between themselves. The Subordinate Judge, upon these pleadings, originally raised nine issues. The first issue covered the question of limitation, the second related to the genuineness of the will of Rajballav, and the third to the validity of the adoption of Jogendra Nath. The fifth issue raised the question of the true construction of I the will, the fourth expressly raised a, question included in the fifth, namely, whether the husband of Katyayani Dasee was entitled to a three-fourths share of the estate; the sixth, repeated the same question in a slightly varied form; the seventh and the eighth issues related to the question of the extent of the estate of Rajballav at the time of the death of Mati Dasee and the liability of the Sens, defendants, to account therefor; the ninth raised the question whether Amulya Gharan had any interest in the estate. These issues were framed on the 17th June, 1903, but, as the suit did not come on for trial till after the decision of the appeal preferred by Amulya Charan to this Court, three additional issues were raised on the 23rd November, 1905. These issues were rendered necessary, because after the decision of this Court in the appeal of Amulya Charan, Katyayani Dasee obtained an amendment of the plaint in her suit. She, or rather her father, Kanai Lal Sen, was not slow to appreciate the effect and to seek the benefit of the opinion expressed by this Court that, upon a true construction of the will of Rajballav, there was an intestacy as to the corpus which had vested in Jogendra Nath and had subsequently passed by succession to Katyayani Dasee to the total exclusion of the Sens. Consequently, on the 6th September, 1905, she had her plaint amended. She raised the value of her suit from Rs. 2,100 to Rs. 2,800 and paid additional court-fees in respect of the increased amount. She prayed now for a declaration that she was entitled to the whole of the estate to the complete exclusion of the Sens. In fact, she put forward her claim in the alternative, and sought for a declaration that she was entitled either to the whole or a three-fourths share of the estate. It is worthy of remark that at this time Amulya Charan was dead, so that there was no longer even any semblance of a conflict of interest between the brother and the sister. Kanai Lal Sen, who had so long strenuously fought, sometimes through his son, at others through his daughter, to recover the three-fourths share of the estate, obviously deemed it imprudent to allow this opportunity to pass without an effort to secure the whole of the estate, in view of the decision of the High Court adverse to his son in the appeal preferred by him. Consequently, after the amendment of the plaint, when the Sens found that even the one-fourth share so long uniformly conceded in their favour, was in jeopardy, three additional issues were raised. The tenth and the eleventh issues raised the question whether the decision of this Court in the appeal of Amulya Charan relating to the corpus of the estate could in any way bind them; and the twelfth issue raised the question whether the plaintiff Katyayani Dasee could ask for construction of the will after the decision of this Court in the suit commenced by the Sens in 1890, in which she was a defendant. It is necessary to mention, at this stage, an incident which has an important bearing upon the present litigation. As we have already stated, Amulya Charan died in April, 1905, shortly after the dismissal of his appeal by this Court. At that time he was the third defendant in the suit commenced by his sister Katyayani Dasee. On the 27th July, 1905, Katyayani Dasee made an application to the Court to substitute on the record his natural father, Kanai Lal Sen, as his representative in interest. In this application it as alleged that, as the High Court, in the appeal of Amulya Charan, had held that his adoption was invalid, because the power of Mati Dasee to take a second son in adoption had been exhausted upon the death of Jogendra Nath leaving a widow and a daughter, the proper person to be brought on the record was his natural father. On the 7th August, 1905, the Court made the order for substitution. It was overlooked that, if the decision of this Court in the appeal of Amulya Charan was accepted as correct, he was in no sense a necessary party to the suit of Katyayani Dasee, because he could not claim any interest in the estate of Rajballav as his second adopted son, and that, in this view, his natural father, Kanai Lal, could have no concern with that litigation. It has not been disclosed on behalf of Katyayani Dasee, or of Kanai Lal who admittedly guided Katyayani Dasee in her suit, under what advice or upon what theory this application was made, But apparently there was a change of front as soon as the notice of the suit was MI served upon Kanai Lal, because we find that on the 6th September, 1905, Kanai Lal put in a petition of objection, in which he asserted that, as Amulya had been validly adopted by Mali Dasee, he, as natural father of Amulya, could not possibly be his representative in interest-so far as the estate of Itajballav Seal was concerned. It has not been explained why an application of this character was put in by Kanai Lal Sen. The position would have been perfectly intelligible, if we did not know, as we do know now from the evidence of Katyayani Dasee and Kanai Lal, that Katyayani Dasee acted under the advice and guidance of her father in the matter of that litigation. It is conceivable that Kanai Lal who was the principal actor in both the litigations of Amulya and Katyayani, thought it prudent to present before the Court both the possible views, one, by the application of his daughter, the other in his own petition of objection. Whatever the motives of the parties might have been, we find that on the same clay, the 6th September, 1905, an application was put in on behalf of Katyayani Dasee, in which she stated that her first application for substitution, made on the 27th July, 1905, was erroneous, that her father could not be the legal representative of Amulya Charan, and that if he had left anyheirs, they were the Sen defendants. Upon these allegations, she prayed that the name of her father, Kanai Lal Sen, might be removed from the record. The result was that, on that very day, the Court recorded an order, by which the name of Kanai Lal Sen was struck out, and it was declared that the cause of action survived against the two Sen defendants, so that none else was needed to be substituted in place of Amulya Charan. The position, therefore, was that Kanai Lal Sen, who, upon the application of his daughter, made probably at his own instance, had been brought on the record, was excluded from the suit upon his own objection and with the assent of his daughter. We may incidentally note here that on the 6th September, 1905, another order for substitution was made in the suit; as the first defendant, Kali Das Sen, had died, mean-while, his son, Bankim Chunder Sen, was brought on the record as his legal representative. It is perfectly clear, there fore, that after the 6th September, 1905, the suit proceeded between Katyayani Dasee on the one hand as plaintiff and Bankim and Bhola Nath Sen as defendants on the other. The receiver, Barada Kanta Sarkar, who had been place in, charge of the estate in the suit of Amulya Charan, and was still in possession, continued to be a party on the recgonise was, however, in the position of a mere stake-hold, and was not really concerned with the controversy between Katyayani Dasee and the Sen defendants. On the 21st December, 1905, the Subordinate Judge gave his decision in this suit. With regard to the first two issues, he stated that the plea of limitation was not urged by, the defendants and the question of genuineness of the will was waived by them, because probate had been granted so far back as 1870, and the Sens quite as much as the plaintiff claimed under that will. As regards the validity of the adoption of Jogendra Nath by Mati Dasee, he held that it had been amply established, and observed that the deed of adoption and the ceremonies thereunder were duly proved. In so far as the question raised in the twelfth issue was concerned, namely, whether the construction of the will was res judicata by reason of the decision of this Court in the suit commenced by the Sens in 1890, the Subordinate Judge held that the matter was open for consideration as that suit had been dismissed against the plaintiff Katyayani Dasee. The Subordinate Judge then observed that the ninth issue had become unnecessary by reason of the death of Amulya Charan. As regards the remaining issues, the Subordinate Judge adopted the view taken by the High Court in the appeal of Amulya Charan, and came to the conclusion that there was an intestacy as to the corpus which vested in Jogendra Nath, and upon his death passed to his widow Katyayani Dasee. In this view, the Subordinate Judge allowed the claim in respect of the whole estate. A decree was drawn up in accordance with his judgment on the 21st December, 1905, and was signed by the Subordinate Judge on the 17th January, 1906. The original decree, which is on the record of the suit, shows on the face of it that the parties were Katyayani Dasee as the plaintiff, Bankim Chandra Sen substituted in place of i Kali Das Sen as the first defendant, Bhola Nath Sen as the second defendant, and Barada Kanta Sarkar as the fourth defendant. In the place of the third defendant, Amulya Charan, the following entry was made : 'As Amulya Oharan has died, Babu Kanai Lal Sen was substituted in his place, but subsequently he was struck off from the category of defendants under order dated 6th September, 1905.' The Sens obtained a copy of the judgment and decree, and preferred an appeal on the 16th February, 1906. They chose the Court of the District Judge as the forum of their appeal, because the suit was valued at Rs. 2,800, and paid Rs. 165 as ad valorem court-fees on the memorandum. In other words, whereas in the suit of Amulya Charan, value at Rs. 10,500, the appeal was brought to this Court, in the suit of Katyayani Dasee, the appeal was taken to the Court of the District Judge, although the subject-matter of the two litigations was initially identical, and in the suit of Katyayani Dasee, by amendment of the plaint, the claim was made ultimately to include the whole of the estate instead of the three-fourths share only which Amulya Charan had sought to recover. In the memorandum of appeal presented by the Sens, the original of which is before us, the appellants are described as the first and second defendants. The respondents are described in two sets, first the plaintiff-respondent Katyayani Dasee, and next the defendants-respondents, namely Amulya Charan Seal and upon his death Kanai Lal Sen, and the receiver Barada Kanta Sarkar. An examination of the original makes it fairly clear that the name of Amulya Charan Seal war written first, and then the words were interpolated 'Upon his death in his place Kanai Lal Sen, resident of Cold Stream Cottage, Darjeeling.' It is superfluous to observe that this memorandum of appeal, as drawn up, was manifestly erroneous. Kanai Lal Sen was not a party to the suit in the Court below; he was not a party to the decree made by the Subordinate Judge. This fact was made patent on the face of that decree, yet the Ben defendants-appellants had the hardihood to make Kauai Lal Sen a party respondent to the appeal. The extraordinary laxity with which business was conducted in the; Court of the District Judge, becomes manifest when we find that this was not discovered in the office after the memorandum had been filed. It has been suggested by the learned vakil for the appellant that the matter was not brought to the notice of the Judge by the officers of the Court, not because of their negligence, but for very different reasons. It is not necessary for us, however, to express any opinion as to the manner in which this happened. It is sufficient to hold that the appellants brought on the record Kanai Lal Sen without any authority, and that this circumstance never came to the notice of the Judge. Notices of the appeal were served in due course upon the parties respondents. Katyayani Dasee filed a memorandum of cross-objections under Section 561 of the Civil Procedure Code of 1882. Kanai Lal Sen also entered appearance, and it is worthy of note that he took no objection whatever that he had been made a party to the appeal. This is remarkable when we remember that he had strenuously and successfully contended in the Original Court that he could not be made a party to the suit as the legal representative of his deceased son, Amulya Charan. It is not necessary at this stage to consider what his motives were and why he quietly acquiesced when he found that he had been made a party respondent to the appeal. The hearing was adjourned from time to time, and on the 1st November, 1906, an entry was made in the order sheet that, as there was a talk of compromise between the parties, the case was adjourned for one month. We now know from the evidence on the record that negotiations for compromise had commenced long before the appeal was preferred, in fact, during the pendency of the suit in the Original Court. On the 9th January, 1907, upon the application of the Sen defendants-appellants and with the consent of the respondents one Shib Krishna Das was added as a party to the appeal, upon the allegation that he had taken a mortgage from the Sens in respect of the disputed property so far back' as the 25th September, 1903. On the same date the learned Judge recorded an order 'that the parties have now compromised their disputes and put in a petition,' in terms of which he directed the decree in appeal to be drawn up. He further ordered the case to be remanded to the lower Court to have the decree carried out. This petition of compromise, which is the direct origin of the present litigation, was presented on behalf of the Sens, defendants-appellants, Shib Krishna Das, mortgagee from them, the added respondent, Kanai Lal Sen, whose name had been placed on the record of the appeal without the leave of the Court, and his daughter, Katyayani Dasee, the plaintiff-respondent. The terms of compromise were as follows: The decree of the first Court, which gave the entire estate of Rajballav Seal to the plaintiff Katyayani, was to be discharged. In lieu thereof, Katyayani was to obtain an absolute estate of inheritance in six-sixteenths share of the estate. The respondent Kanai Lal Sen, the father of the plaintiff, was likewise to get another six-sixteenths share as the equivalent of his advances of money and trouble for the series of litigations relating to the estate and ending with the compromise. The remaining four-sixteenths share was to be taken by the Sens, defendants, Bankim Chandra and Bhola Nath, in equal halves. The four-sixteenths share, thus given to the Sens, was to remain subject to the mortgage executed in favour of Shib Krishna Das on the 25th September, 1903. The mortgagee abandoned all claim upon the twelveth-sixteenths divided between Katyayani Dasee and Kanai Lai. The shares of the parties were to be partitioned amongst the two Sens, Bankim Chandra and Bhola Nath, Katyayani, and Kanai Lal Sen. A decree was drawn up on the basis of this petition of compromise on the 24th January, 1907, and the schedule to the decree described the subject-matter of the litigation as comprising several items of property, inclusive of forty-two bigahs of land in the suburbs of this city, upon which stood a market and various buildings. The parties to this petition of compromise and their legal advisers, no doubt imagined at the time that all disputes had terminated, and Kanai Lal Sen must have satisfied himself that he had at last succeeded in his effort, extended over many years, to seize the estate of Rajballav Seal, of which he took, under the petition of compromise, a six-sixteenths share for himself and secured another six-sixteenths for his widowed daughter. The troubles of the parties, however, were by no means near the end, for on the 23rd April, 1907, Rajlakshmi Dasee, the daughter of Katyayani, commenced the present litigation for declaration that this consent-decree was in no, way binding upon her, and that it could not possibly affect her position as the reversionary heir of Jogendra Nath; she also prayed in the. alternative that, if the Court found any sum was advanced by Kanai Lal Sen for the benefit of the estate, such sum might be declared a debt due by the estate to Kanai Lai. She valued the suit at two lacs of rupees, which she asserted was the true value of the subject-matter of the litigation. She joined as defendants six persons: first, her mother Katyayani Dasee; second and third, Bankim Chandra Sen and Bhola Nath Sen; fourth, her m%ternal grandfather, Kanai Lal Sen; fifth, Shib Krishna Das, the mortgagee from the two Sens; and sixth, the receiver, Barada Kanta Sarlcar. The defendants, Katyayani Dasee, Bankim Chandra Sen, Kanai Lal Sen and Shib Krishna Das all resisted the claim of the plaintiff, but the principal contesting defendants were Katyayani Dasee and her father, Kanai Lal Sen, who maintained that the consent-decree was valid and operative, and was beneficial to the estate of Jogendra Nath. Kanai Lal, in paragraph 26 of his written statement, also suggested that the estate of Rajballav had never vested in Jogendra Nath or Katyayani, and that consequently the plaintiff Rajlakshmi, as the daughter of Jogendra and his reversionary heir, was not entitled to maintain any declaratory suit in respect thereof. Upon the pleadings six issues were raised by the Subordinate Judge: the first raised the question of court-fees, with which we are not concerned at this stage; the second raised the question whether the plaintiff had any cause of action; the third covered the question of the effect of Section 42 of the Specific Relief Act, which, it was apparently suggested, was a bar to the maintainability of the suit; the fourth and fifth issues raised the two substantial questions in the litigation, namely, what was the nature of the interest of Katyayani in the property in suit, and whether the consent-decree of the 9th January, 1907, was binding upon the plaintiff; the sixth issue merely raised the question whether the plaintiff was entitled to all or any of the declarations she sought in the plaint. Upon the first three issues the Subordinate Judge came to a decision in favour of the plaintiff Rajlakshmi Dasee. He held that the plaint was sufficiently stamped as a plaint in a declaratory suit, that the plaintiff had a cause of action, and that Section 42 was no bar in view of the decision of this Court in the case of Srinibash Dan v. Monmohini Dasi (1906) 3 C.L.J. 224, in which it was ruled that a Hindu daughter was entitled during the lifetime of her mother to maintain a suit for the construction of the will of her deceased father and for declarations incidental thereto, specially where the mother had done acts which might ultimately prove prejudicial to the interest of the daughter. Upon the fourth issue, namely, the binding character of the consent-decree of the 9th January, 190T, the Subordinate Judge held that Katyayani Dasee had entered into the compromise with caution and deliberation, and that undue influence or coercion had not been exercised upon her. He further found upon the evidence that Kanai Lal Sen had spent Rs. 8,000 for the maintenance of his daughter and her child, for the marriage expenses of his grandchild, and for litigation expenses to recover the estate, for the benefit of his daughter, from the hands of the Sens who had unlawfully seized it. In this view, as also in view of the circumstance that there was a dispute as to the construction of the will, the Subordinate Judge came to the conclusion that the decree was binding upon the plaintiff, in so far as it gave to Kanai Lal Sen a six-sixteenths share of the estate; but he held, that the decree could not be supported, in so far as it gave an absolute estate of inheritance to Katyayani Dasee, who was entitled to no more than the interest of a Hindu widow, in the estate of her husband. The Subordinate Judge accordingly made a decree, by which he declared that Katyayani Dasee could not acquire any right larger than that of a Hindu widow in the six-sixteenths share of the property obtained by K her under the terms of the consent-decree. The plaintiff has now appealed to this Court, and on her behalf the decision of the Subordinate Judge has been assailed on three grounds, namely, first, that the consent-decree inoperative, in so 'far as the plaintiff is concerned, inasmuch as it was made by the Court of the District Judge, which had no jurisdiction over the subject-matter of the litigation, was between parties one of whom, Kanai Lal Sen, was made a party to the appeal without the knowledge or authority of the Court, and, so far as it was in favour of Kanai Lal, went beyond the scope of the suit; secondly, that the plaintiff is not bound by the consent-decree, because it was not made after full contest in a bond fide litigation; and thirdly, that the compromise on which the decree was based was in itself unjust and improvident, and in any view, even upon the assumption that Kanai Lal Sen had spent some money to enable his daughter to recover from the Sens the estate of her husband, there was no justification for an arrangement by which ho had been given a six-sixteenths share of the estate, which is worth at least Rs. 50,000. The first and second of these positions have not been seriously controverted on behalf of Kanai Lal Sen and Katyayani Dasee; but it has been argued on their behalf that, upon a true construction of the will of Rajballav, Jogendra Nath did not take such interest in his estate as could pass by succession to his widow, Katyayani Dasee, and subsequently to the plaintiff and her children as the ultimate reversioners; and that, from this point of view, the plaintiff is not entitled to maintain the present action. It has also been contended, though somewhat faintly, on behalf of Katyayani that the decree of the Court below, in so far as it declares that she is entitled to the interest of a Hindu widow in the estate taken by her under the consent-decree, ought not to be maintained. The appeal has not been contested-by the Sens defendants, who have not entered appearance, though served with notice; but on behalf of the representatives of their mortgagee, it has been argued that either under the consent-decree or under the will of Rajballav, the mortgagers are entitled to an one-fourth share of the estate against which the mortgage may be enforced. The position taken up by the mortgagee, therefore, in substance, is that it is immaterial for his purposes what happens to the consent-decree, as he can always proceed against the one-fourth share of the estate which belonged to the Sens.
9. In so far as the first point taken on behalf of the appellant is concerned, it has been pointed out that, in view of the true value of the subject-matter of the litigation, the District Judge had no jurisdiction to entertain the appeal which ought to have been preferred to this Court. The facts upon this part of the case cannot possibly be doubted, and indeed have not formed the subject of controversy before Rs. As we have already stated, the suit of Katyayani Dasee, in which the consent-decree was ultimately made, was originally valued at Rs. 2,100, and was instituted in the Court of the Subordinate Judge. In so far as the original Court was concerned, it was obviously immaterial for purposes of jurisdiction what value was put upon the subject-matter of the litigation, because if the value exceeded Rs. 2,000, it was properly instituted in the Court of the Subordinate Judge. But the question of valuation was of paramount importance for the determination of the forum of appeal. That the under-valuation was deliberate admits of no doubt or dispute. In the suit of Amulya Charan, which had been instituted by Kanai Lal Sen, on his behalf in 1901, the value of the subject-matter then in dispute, that is, a three-fourths share of the estate of Rajballav Seal, was stated to be Rs. 10,500. This statement itself, as we shall presently see, was a gross under-valuation; but, from the point of view of jurisdiction, either of the Original Court or of the Court of Appeal, it was immaterial, because the suit was tried by the Subordinate Judge, and heard on appeal by this Court; and if the parties had so chosen, in so far as the value of the subject-matter was concerned, they would have been entitled to take the matter to His Majesty in Council. In the suit of Katyayani, however, instituted in 1903, the very same share in dispute was deliberately valued at Rs. 2,100. It has, indeed, been suggested that there was a difference between the suits of Amulya Charan and Katyayani Dasee, because, if successful, the former would take an absolute interest, while the latter would take the qualified interest of a Hindu widow. But the suggested distinction, even if it is assumed to be well-founded, does not explain the difference in valuation, for in the cross-objections filed by Katyayani in this Court, the life-interest is valued at one-third of the absolute interest. That the suit was grossly under-valued, admits of no controversy, and indeed, has not been disputed before us. Whether this was done with a view to defraud the State in the matter of court-fees or from any ulterior motive, we are not in a position to determine. The true value of the property, as Kanai Lal Sen himself admits in his deposition in the present case, was more than Rs. 95,000. We have before us the papers of the partition effected by the Court of the Subordinate Judge in the suit of Katyayani Dasee on remand after the consent-decree. We find from these papers that the properties were valued by a qualified engineer at Rs. 1,37,058, and this valuation was accepted by all the parties, including Katyayani Dasee and Kanai Lal Sen, without any demur or dispute. We have it, therefore, that the three-fourths share originally included in the suit of Katyayani Dasee, the true value of which is more than Rs. 1,00,000, was deliberately valued in the plaint at Rs. 2,100. The result was that the plaintiff defrauded the State of the fee payable to a much larger extent than had been done in the case of Amulya Charan. The proper fee payable was Rs. 1,450. The amount paid upon the plaint in the suit of Amulya Charan was Rs. 490, and the amount paid by Katyayani Dasee upon her plaint was Rs. 130 only. But what was much worse in the case of the suit of Katyayani Dasee, was that the jurisdiction of the High Court as the Court of Appeal was ousted. The District Judge could take cognizance of the appeal only if the value of the subject-matter of the litigation did not exceed Rs. 5,000. As we have already stated, the value of the subject-matter was more than a Rs. 1,37,000, because Katyayani Dasee at, a later stage had her plaint amended so as to include the whole estate. It is clear, therefore, that the consent-decree made by the District Judge was made wholly without jurisdiction. We are not now called upon to consider what the effect of such lack of jurisdiction would be upon the decree, in so far as the parties thereto were concerned. It is manifest that so far as a stranger to the decree is concerned, who is interested in the property affected by the decree, he can obviously ask for a declaration that the decree is a nullity, because made by a Court which had no jurisdiction over the subject-matter of the litigation. It is an elementary principle of law that, if a Court has no jurisdiction over the subject-matter, its judgments and orders are mere nullities, and may not only be set aside at any time by the Court in which they are rendered, but be declared void by every Court in which they are presented : Ferguson v. Mahon (1839) 1 A. & E. 179 : 52 R.R. 301, Briscoe v. Stephens (1824) 2 Bing. 213 : 27 R.R. 597, Buchanan v. Bucker (1808) 9 East. 192 : 9 R.R. 531, Attorney-General v. Hotham (1823) T. & R. 209 : 24 R.R. 21, Perkin v. Proctor (1768) 2 Wilson 382, Ex parte Kinning (1847) 4 C.B. 507, 525, Brown v. Compton (1800) 8 T.R. 424. If a Court has no jurisdiction, its judgment is not merely voidable, but void, and it is wholly unimportant how precisely certain and technically correct its proceedings and decisions may have been; if it has no power to hear and determine the cause, its authority is wholly usurped and its judgments and orders are the exercise of arbitrary power under the forms, but without the sanction of the law. These principles apply not only to Original Courts, but also to Courts of Appeal'. Jurisdiction over the subject-matter, whether in the Court of first instance or in the Appellate Court, is given only by law, and cannot be conferred by consent of parties. Accordingly where an Appellate Court does not possess jurisdiction to review the action of the Court below, jurisdiction cannot be conferred upon it by consent of the parties; and any waiver on their part cannot make up for the lack or defect of jurisdiction Gurdeo Singh v. Chandrikah Singh (1907) I.L.R. 36 Cale. 193, Baij Nath Singh v. Gajraj Singh (1910) 7 All. L.J.R. 675, Gooroo Persad Boy v. Juggobundhoo Mozoomdar (1862) W.R.F.B. 15, Golab Sao v. Chowdhury Madho Lal (1905) 9 C.W.N. 956, Legdard v. Bull (1886) I.L.R. 9 All. 191 : L.R. 13 I.A. 134, Minakshi Naidu v. Subramanya Sastri (1877) I.L.R. 1 Mad. 26 : L.R. 14 I.A. 160, Lawrence v. Wilcock (1840) 1 A. & E. 941, The Queen v. The Judge of the County Court of Shropshire (1887) 20 Q.B.D. 242, 248, In re Aylmer (1887) 20 Q.B.D. 258, 262. These cases lay down the doctrine that, where no jurisdiction exists no action on the part of the plaintiff, no inaction on the part of the defendant, can invest the Court with any of the elements of power or of vitality, so as to convert the proceeding before it into a proper judicial process. If a Court assumes to act where it has no jurisdiction, its adjudications are all utterly void and have no effect either as an estoppel or otherwise. From this point of view, the consent-decree is entirely unavailing for want of jurisdiction, and consequently neither binds nor bars the plaintiff : Kalha Parshad v. Kanhaya Singh (1875) 7 N.W.P. 99. The case before us is, indeed, really much stronger than any to which we have referred, because here the plaintiff was not a party to the proceedings in which the consent-decree was made, and she, at any rate, did not contribute by her silence or acquiescence to the usurpation of jurisdiction by the District Judge. The whole proceeding, in fact, was a fraud upon the jurisdiction of this Court, which alone was competent to hear an appeal in a controversy relating to the subject-matter of that litigation. It is further worthy of remark that this deliberate under-valuation, by means of which the appeal was taken to the Court of the District Judge, has been productive of the extraordinary result that Kanai Lal Sen, without the leave or knowledge of the Court, was added as a party to the appeal. As we have already explained at full length, Kanai Lal Sen was sought to be added as a defendant in place of Amulya Charan Seal upon the death of the latter; he resisted, and his objection prevailed. A note was made on the record that his name, which had been provisionally substituted, was removed. This fact was also expressly stated on the face of the decree. Yet the Sens, when they preferred an appeal to the District Judge, added him as a party respondent. In their memorandum of appeal they described Kanai Lal Sen as if he had been a party in the Court below; and they attached a copy of the decree, which showed, on the face of it, that that was not so. Matters were, however, at the time so carelessly conducted in the Court of the District Judge that this circumstance escaped the notice of the officers of the Court; and Kanai Lal Sen entered appearance in the appeal, though he had protested in the Court below that he was in no sense a necessary party to the litigation. One circumstance is quite clear; if the appeal had been preferred to this Court, such a contingency would have been impossible. Memorandums of appeal presented to this Court are so minutely scrutinised before they are registered that any attempt of this character to add as a party respondent to an appeal a person who was not a party in the Original Court, could not possibly have escaped detection. However, by reason of the laxity of procedure in the Court of the District Judge, Kanai Lal was afforded the opportunity to enter appearance as a party respondent in the appeal. Wiry he acquiesced in the action of the Sens in making him a party to the appeal, can only be a matter for speculation. It was suggested in the Court below, and the suggestion has been repeated here, that the Sens made Kanai Lal a party to the appeal, because they wanted to have a substantial man on the record, against whom they might proceed for recovery of costs in the event of ultimate success. But it is hardly conceivable that the Sens or their legal advisers could ever have entertained an idea that a person could, at the appellate stage, be made responsible for costs, though his name had been placed on the record with out the leave or knowledge of the Court. Besides, how cud the Sens foresee that Kanai Lal would take no exception to the course adopted by them and allow himself to be entangled in the litigation? On the other hand, it has been suggested by the learned vakil for the appellant that this was a device adopted by all the parties to have a consent-decree under which Kauai Lal might be awarded a substantial share of the estate. This suggestion is very likely well-founded, because the evidence makes it clear that negotiations for compromise were in progress even before the decree was made by the Original Court. The undoubted fact that the Sens made Kanai Lal a party who acquiesced in such action contrary to his attitude in the Court of first instance is unquestionably a matter for just comment. But whatever the motive might have been for the strange procedure, we know the result of it. A consent-decree was made between the parties, by which Kanai Lal was awarded a substantial share of the estate, though he was not a party to the suit nor a party to the appeal, and though possibly the Court was not even aware of this circumstance. The outstanding features of the case, therefore, are, first, that by reason of a deliberate under-valuation, the appeal was taken to a Court which had no jurisdiction over the subject-matter of the litigation as a Court of Appeal, and the jurisdiction of the High Court was thus ousted. Secondly, that by reason of the laxity of proceedings in the Court of the District Judge, Kanai Lal Sen was irregularly brought on the record without any order of the Court, and a consent-decree was thus made between the parties to the suit and a stranger whose name ought not to have been placed on the memorandum of appeal. It is manifest, in our opinion, that a consent-decree made under these circumstances cannot be deemed a valid and operative decree binding upon the estate in the hands of the reversionary heir. On this ground alone the plaintiff is entitled to a declaration, that the decree is not operative as against her. We may add that the learned vakil for the appellant further contended that the consent-decree was also vitiated by the circumstance that it went beyond the scope of the suit, and was consequently in contravention of Section 375 of the Code of 1882. That section provides that, in the event of a lawful agreement or compromise of a suit, the Court shall pass a decree in accordance therewith so far as it relates to the suit. Mow the matter in controversy in the suit was the question of title to the estate of Rajballav Seal, had it vested in his adopted son, Jogendra Math, in whole or in part, and passed by succession to Katyayani, the widow of Jogendra Math, or had it vested, in whole or in part, in the grandsons by his daughter, the two Sens. Kanai Lal Sen had no claim against the estate of Rajballav Seal. He might be imagined to have some claim against his daughter, whom he had maintained and had assisted to recover the estate of her husband. Consequently, the claim of Kanai Lal Sen against his daughter could not, by any possibility, be treated as part of the matter in controversy in the suit of Katyayani. from this point of view, therefore, any decree in favour of Kanai Lal Sen would be beyond the scope of the suit, a position which is considerably strengthened by the undoubted fact that Kanai Lal in the Original Court successfully maintained that he was in no sense a necessary party. Under these circumstances, we must hold that the consent-decree is not binding upon the plaintiff, and she is entitled to a declaration to that effect.
10. The second ground urged on behalf of the appellant is, in our opinion, equally well-founded. It has been contended on behalf of the plaintiff that the consent-decree, made as it was between her mother, a Hindu widow, with a qualified interest in the estate of her husband, and other persons who claimed title in that property, is not binding upon the appellant as the reversionary heir to the estate of her father. No serious effort has been made on behalf of the defendants-respondents to controvert this position, and, in view of the authorities, to which we shall presently refer, the ground urged by the appellant must be deemed unassailable. In the case of Imrit Konwur v. Roop Narain Singh (1880) 6 C.L.R. 76, their lordships of the Judicial Committee laid down that 'the daughters could not be bound up by a compromise made by the widow under any circumstances.' No doubt in that case the widow by the compromise made good terms for herself in complete disregard of the interest of her daughter, who was the reversionary heir. The decision of the Judicial Committee, however, was not based on any such narrow ground. That this is the true view of the decision of their Lordships is clear from the case of Sheo Narain Singh v. Khurgo Koerry (1882) 10 C.L.R. 337, in which a consent-decree based on a compromise made by a Hindu widow was held inoperative against the reversioners, who claimed the estate after the death of the widow. Again, in the case of Sant Kumar v. Deo Saran (1886) I.L.R. 8 All. 365, Mr. Justice Mahmood held that the rule laid down by the Judicial Committee in the case of Katama Natchiar v. The Rajah of Shivagunga (1863) 9 Moo. I.A. 539, was applicable only to decrees fairly obtained against the widow in a contested and bona fide litigation, and would not apply to a compromise by the widow which could not clearly be regarded as on a higher footing than any alienation which the widow in possession of the estate might have made. A similar view has been adopted by the Bombay High Court in the case of Jeram Laljee v. Veerbai (1903) 5 Bom. L.R. 885, in which it was ruled that anything short of a decree in a suit contested to the end could not have the quality attributed to a decree in a contested litigation by the Judicial Committee in the case of Katama Natchiar v. The Rajah of Shivagunga (1863) 9 Moo. I.A. 539. Precisely to the same effect is the decision of the Allahabad High Court in the cases of Gobind Krishna Narain v. Klmnni Lal (1907) I.L.R. 29 All. 487, and Mahadei v. Balded (1907) I.L.R. 30 All. 75. In the first of these cases, Sir John Stanley, C.J., pointed out that the doctrine of a family settlement of doubtful claims, as enunciated in Stapilton v. Stapilton (1739)1 White & Tud. 8th Ed. 234 : 1 Atk. 2 cannot be applied to the case of a compromise by a Hindu widow so as to effect the position of a reversionary heir, because in that very case the statement of the rule is limited by the important qualification that the compromise 'is within the power of each party, if honestly done.' The learned Chief Justice held that a Hindu widow or daughter, who is a limited or qualified owner, has not the power to enter into compromise so as to bind the inheritance in the hands of the reversionary heirs. The view indicated in the series of decisions to which we have referred, has been recently followed in this Court as settled law: see Roy Radha Kissen v. Nauratan Lal (1907) 6 C.L.J. 490, 525, where the earlier authorities are reviewed and Asharam Sadhani v. Chandi Churn Milkerjee (1908) 13 C.W.N. 147. No doubt, as pointed out by Mr. Justice Ameer Ali in Nicholas v. Asphar (1896) I.L.R. 24 Cale. 216, a consent-decree is just as binding on the parties to the proceeding as a decree after a contentious trial, a position which is amply supported by cases of the highest authority : In re South American and Mexican Company  1 Ch. 37; The Bellcarn (1885) 10 P.D. 161. But the matter obviously stands on a different footing when the question is raised whether the consent-decree may operate to the prejudice of persons not parties thereto. As was well observed in Huddersfield Banking Co. Limited v. Lister  2 Ch. 237, the real truth of the matter is that a consent-order is a mere creature of the agreement; and that if greater sanctity were attributed to it than to lie original agreement itself, it would be to give the branch existence which is independent of the tree. To use the language 'of Lord Justice Kay, the consent order is' only the order of the Court carrying out an agreement between the parties. We must consequently hold that the rule recognised in the long series of decisions, to which we have referred, is well founded on principle and ought to be maintained. The plaintiff is therefore entitled to a declaration that the consent-decree, as a decree, is not binding upon her as the reversionary heir to the estate of her father. Hence the second ground urged on be-half of the appellant must prevail.
11. The third ground urged on behalf of the appellant is that the consent-decree is inoperative against the plaintiff because, based on a compromise, prejudicial to the interest of the reversionary heirs and in excess of the powers of the widow as qualified owner. This ground raises an important question of fact. The learned Judge in the Court below came to the conclusion that Kanai Lal Sen had spent Rs. 8,000 for the benefit of his daughter, partly on account of the maintenance of herself and her daughter and partly on account of the marriage of his granddaughter, and the remainder on account, of the litigation expenses to enable his daughter to recover the estate of her husband. The learned vakil for the appellant has directed a stringent criticism upon this part of the case, and has minutely scrutinised the evidence adduced by Kanai Lal Sen and by Katyayani to show that the compromise was a fair transaction. The learned vakil has invited our attention to the fact that, whereas, according to Kanai Lal himself, the share of the estate taken by him was worth at least Rs. 30,000 according to the finding of the Subordinate Judge, he cannot in any sense be treated as a creditor of his daughter to the extent of more than Rs. 8,000. In the course of the able argument which he addressed to us on this point, he further contended that the finding of the Subordinate Judge, even to the extent to which it is favourable to Kanai Lal Sen, is based upon very questionable evidence; that the accounts produced have been manufactured for the purposes of the Luit; that trustworthy vouchers have not, in all cases, been brought forward; that there are serious contradictions in the evidence now given, taken along with previous statements of the parties as to the period during which Katyayani and her daughter were maintained by her father; and that, in substance, although it may be conceded that Kanai Lal has spent some money on behalf of his widowed daughter, the evidence as to what precise amount has been spent is wholly illusory and will not stand the test of criticism. He has finally argued that the price which the daughter has paid to her father is manifestly disproportionate to the benefit conferred, while Kanai Lal, according to the Subordinate Judge, has spent about Rs. 8,000 for the benefit of his daughter, he has secured for himself an absolute interest in properties which we now know are worth at least Rs. 50,000. Under these circumstances, the learned vakil for the appellant has contended that, even if what is assailed had not been a consent-decree but a private conveyance, the transaction could be successfully impeached by the reversionary heir who finds that her inheritance has been taken half by her mother as absolutely entitled thereto, and the other half by her maternal grandfather as the price for his assistance, with the possible result that no part of the estate of her father may ever reach her hand. The considerations which have been thus urged are obviously of a weighty character, but we do not propose to examine them, because, as the consent-decree must be declared inoperative as against the plaintiff on the first and second grounds taken by the appellant, it is needless to scrutinise the facts minutely for the purpose of a decision on the third ground.
12. In the view indicated above, the conclusion is irresistible that the plaintiff is entitled to the declaration that the consent-decree is inoperative against her. But on behalf of Katyayani and Kanai Lal, what must be deemed a desperate effort has been made to defeat the suit on the ground that the plaintiff Rajlakshmi has no interest in the estate covered by the decree, and is consequently not entitled to maintain a declaratory suit in respect thereof. The learned Counsel who appeared on behalf Of Kanai Lal Sen strenuously contended that upon a true construction of the will of Rajballav Seal the estate never vested absolutely in the first adopted son, Jogendra Nath, so that the plaintiff cannot claim to be the reversionary heir of her father with regard to such estate. We intimated to the learned Counsel, in the course of the argument he addressed to us, that it was not open to him to take this position, because the compromise-decree impeached by the plaintiff was based obviously on the footing that the Sens were entitled to one-fourth share of the estate, that the remaining three-fourths belonged to Katyayani as the widow of Jogendra Nath, and that the three-fourths ought to be divided in equal halves between Katyayani and her father. In spite of this expression of opinion, the learned Counsel insisted that he was entitled to address the Court upon this point, and we accordingly afforded him full opportunity to place before us his arguments upon the question of the construction of the will. Since the close of the arguments, we have minutely scrutinised the records of this litigation, as also of the three previous suits between the parties or their predecessors, and we need only state that such examination has strongly confirmed the view we first indicated that neither Kanai Lal nor Katyayani was entitled in the present litigation to contend, as was sought to be done, that Katyayani was not entitled to the estate as the widow of her husband, Jogendra Nath. The history of the previous litigations shows that, in the suit of 1890, the Sens obtained a declaration that they were entitled to an one-fourth share in the estate of Rajballav Seal. In the suit of Amulya Charan, it was conceded by the then plaintiff that he was entitled to a three-fourths share and the Sens to the remaining one-fourth. A similar position with reference to the Sens was adopted by Katyayani, at that time a defendant, when she contended that she, and not her brother, was entitled only to the three-fourths share. There was no suggestion on her part at the time that the Sens were not entitled to an one-fourth share. In the suit of Katyayani herself, she originally came to Court upon the allegation that she was entitled to only three-fourths share of the estate, and that the remainder belonged to the Sens. It was only after the decision of this Court in the appeal of Amulya Charan, that she sought to profit by the observations of the learned Judges, and had her plaint amended so as to include a claim to the whole estate. But the position which she then took up was, not that she had no interest in the estate as the widow of her husband, and that the whole estate had passed to the Sens, but that she was entitled to the whole to the exclusion of the Sens. She successfully asserted this title in the Court of first instance. Her position throughout the trial in the Original Court was that there was an intestacy as to the corpus which thus vested in the first adopted son, Jogendra Nath, and subsequently passed by succession to herself. When the Sens appealed to the District Judge, the position was not materially changed, for the claim which Katyayani continued to assert was based exclusively on her right as the widow of Jogendra Nath. In the face of these circumstances it has been boldly suggested in this Court that the compromise was made on the basis that Jogendra had no interest at all, and that the Sens made a present of three-eighths share to Katyayani and another three-eighths to Kanai Lal Sen. The learned Counsel for Kanai Lal Sen has seriously contended that he took a three-eighths share of the estate, not on the assumption that it was the property of Jogendra Nath, but that it was the property of Rajballav Seal, which had passed to the sons of his daughter. The position is manifestly untenable, for what claim had Kanai Lal against the estate of Rajballav Seal so as to justify an alienation in his favour? The ground assigned in the petition of compromise for giving a share to Kanai Lal Sen was that he as the father of the then plaintiff, Katyayani, was justly entitled to get a share as the equivalent of his advances of money and trouble for the series of litigations ending with that compromise. To whom had he advanced the money and who was the party benefited by the trouble he had taken in the conduct of the series of litigations? Obviously it was his daughter, and the only intelligible view of the compromise is that it gave four-sixteenths share to the Sens and their mortgagee, and that the remainder , to which the title of Katyayani was admitted by the Sena, was equally divided between herself and her father. The suggestion that Kanai Lal obtained a share of the estate of Rajballav Seal as such is entirely baseless. He might reasonably be treated as the creditor of his daughter, and the share he took must be deemed to be is share which, had he not taken it, would have belonged to his daughter; in other words, he took not directly from the Sens, but form his daughter, Katyayani. The inference, therefore, follows that the true effect of the consent-decree was that the Sens took one-fourth of the estate and the remainder was taken by Katyayani and her father in equal halves; this latter three-1 fourths was obviously, treated as the property of Jogendra Nath, because Katyayani would not be entitled to anything except as the widow of Jogendra Nath, and Kanai Lal Sen would not be entitled to claim anything expect as the creditor of Katyayani. The plaintiff, therefore, may justly assume the position that as by this consent-decree the three-fourths share of the estate has been dealt with as the property of her father, Jogendra Nath, she as the reversionary-heir, is entitled to the declaration that the decree is not operative against her. In this view, we must hold that neither Katyayani nor Kanai Lal Sen can be allowed, for the purposes of the present litigation, to assume the position that Jogendra Nath never took any interest in the estate of Rajballav Seal, and that Katyayani had at no time any claim thereto as widow of Jogendra Nath. We may here observe that, although this suggestion was made in paragraph 26 of the written statement of Kanai Lal Sen, it was really inconsistent with the suggestion made in paragraph 16 that he was entitled to be reimbursed from Katyayani or Amulya Charan, whoever might succeed in the litigation. The argument now sought to be advanced is also contrary to the allegations made in paragraph 9 of the written statement of Katyayani and of paragraph 8 of the written statement of one of the Sens, who themselves do not claim more than one-fourth share of the estate. We may also remark that no trace is to be found in the judgment of the Subordinate Judge of any argument addressed to him to the effect that Katyayani had no shadow of a title to the estate, and it is manifest that such a position cannot be seriously assumed by her or by her father in the present litigation. We must therefore, refuse the invitation of the learned Counsel to determine the title of Jogendra Nath under the will of Rajballav. We may add that the question is one not wholly free from difficulty, and it would, in our opinion, needlessly embarrass the parties if we were to pronounce an opinion upon it when it is not necessary for us to do so. It is further worthy of remark that if the will ever requires to be construed for the benefit of the present parties, a question may very well arise as to how far the matter may be demes concluded by the decisions in the suit of the Sens in 1890, and of Amulya Charan in 1901, and by the pleadings of the parties in the suit of Katyayani herself in 1903. This preliminary question is obviously one of some intricacy; it does not appear to have been suggested to the Court below, and the materials placed before us are by no means sufficient for its adjudication. This is an additional reason why Katyayani and Kanai Lal Sen should not now be permitted to assume a position wholly contradictory to the position previously taken by them and to their pleadings in the present case.
13. The result, therefore, is that this appeal must be allowed and the decree made by the Subordinate Judge discharged. The plaintiff will have a declaration that the consent-decree, made on the 9th January, 1907, is void and inoperative as against her, and that she is, in no way, bound by the partition proceedings which have taken place in execution of that decree. The plaintiff is entitled to her costs both here and in the Court below as against the 1st and 4th defendants.