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Raja Jagat Kishore Acharya Chaudhury Vs. Hemendra Kishore Acharya Choudhury and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal263
AppellantRaja Jagat Kishore Acharya Chaudhury
RespondentHemendra Kishore Acharya Choudhury and ors.
Cases ReferredLalit Mohan Ghosh v. Gopali Chuck Coal Co Ltd.
Excerpt:
- .....by which the defendant-appellant promised amongst other things to pay to the plaintiff's father a monthly allowance of rs. 200 out of the income of the zamindari. there was a further stipulation that this allowance would be payable to the plaintiff's sons and grandsons after the death of plaintiff's father. that petition of compromise has been printed at p. 1 of the second part of the paper book. with the sanction of the board of revenue, the general manager of the courts of wards executed a deed embodying the terms of compromise. that deed is a deed dated 8th magh 1287 b.e. corresponding to 20th january 1881. that is printed at p. 5 of the second part of the paper book. the plaintiff's case is that the plaintiff's father used to get that allowance at the rate of rs. 200 per month so.....
Judgment:

Mitter, J.

1. This is an appeal by defendant 1 Raja Jagat Kishore Acharya Choudhuri and arises out of a suit brought by the plaintiff now respondent for recovery of some allowance due to the plaintiff from the said defendant. The case as stated in the plaint may be briefly stated thus: The plaintiff's father the late Debendra Kishore Acharya Chowdhury brought a suit in the Court of the Subordinate Judge of Mymensingh against the defendant-appellant in the year 1880. That suit was valued at Rs. 30,00,000 (thirty laks). At the time of the institution of the suit the defendant-appellant was a minor and his property was taken possession of by the Court of Wards. That suit terminated in a compromise by which the defendant-appellant promised amongst other things to pay to the plaintiff's father a monthly allowance of Rs. 200 out of the income of the zamindari. There was a further stipulation that this allowance would be payable to the plaintiff's sons and grandsons after the death of plaintiff's father. That petition of compromise has been printed at p. 1 of the second part of the paper book. With the sanction of the Board of Revenue, the General Manager of the Courts of Wards executed a deed embodying the terms of compromise. That deed is a deed dated 8th Magh 1287 B.E. corresponding to 20th January 1881. That is printed at p. 5 of the second part of the paper book. The plaintiff's case is that the plaintiff's father used to get that allowance at the rate of Rs. 200 per month so long as the defendant-appellant was a minor. It appears that the defendant subsequently promised to pay an additional sum of Rs. 100 as a monthly allowance and also a sum of Rs. 400 per year for the pujas. By the letter of 1886 the defendant promised to pay the additional allowance of Rs. 100.

2. This letter is dated 8th April 1886, and is printed at p. 54 of the second part of the paper book, and from Baisakh 1294 B.E., the plaintiff's father got this monthly allowance regularly at the rate of Rs. 300. The promise to pay the additional allowance of Rs. 400 per year for the Durga Puja was made verbally by the plaintiff, and was not embodied in any deed. Defendant 1 stopped the payment of the extra monthly allowance and the annual allowance of Rs. 400 from a time prior to the year 1893, with the result that the plaintiff's father had to institute a suit which has been described as Money Suit No. 8 of 1893 in the Court of the Subordinate of Mymensingh against defendant 1 claiming the allowance at the rate of Rs. 300 per month and also the puja allowance together with the arrears of allowance then fallen due. After the trial of the suit had proceeded to some length there was a compromise between the parties and as defendant 1 admitted the claim of the plaintiff in that suit the suit was withdrawn and since the withdrawal of that suit it is common ground that defendant 1 paid to the father of the present plaintiff the monthly allowance as well as the puja allowance of Rs. 400 a year. The plaintiff's father died in 1901 corresponding to 1308 B.E., leaving him surviving as his eldest son and defendants 2 and 3 as two younger sons. Even after the death of the plaintiff's father, defendant 1, in pursuance of the promise used to pay the monthly allowance of Rs. 300 to the plaintiff. Then some dispute arose between the plaintiff and his two brothers defendants 2 and 3 and the allowance was stopped and a solicitor's letter was given to defendant 1 not to pay the entire sum to the plaintiff alone. The plaintiff has instituted the present suit and he has claimed the entire allowance of Rs. 300 for himself. He has brought the suit for the monthly allowance from Sraban 1331 B.S. and the puja allowance from 1332 B.S. with interest the total claim having been laid at Rs. 6,629. In his written statement defendant 1 contends that the allowance should be limited to Rs. 200 and that such an allowance is not payable to the plaintiff alone but also to the other sons and grandsons of the plaintiff's father. In other words they are payable as the events now stand to the plaintiff and defendants 2 and 3 in accordance with their shares. It is further contended that the excess allowance of Rs. 100 per month was the allowance made on the basis of the letter which has no consideration to support it and therefore the plaintiff is not entitled to claim this additional allowance of Rs. 100 per month as also the puja allowance of Rs. 400 per annum. It was also pleaded by an additional written statement filed on behalf of defendant 1 that the plaintiff took a sum of Rs. 1,000 as a loan from defendant 1 from Sravan 1331 B.E. to Pous 1331 B.E. and that defendant 1 is entitled to a set off of the sum. On this state of pleadings several issues ware raised in the suit. It is necessary to refer in particular to issue 3 which forms the subject-matter of the debate in the appeal before us. That issue runs as follows:

Has the plaintiff, any legal claim to the monthly allowance of Rs. 100 and the yearly Parbani of Rs. 400? If not whether he is entitled to claim that in this suit? Another issue with reference to which some argument was directed was with reference to costs. That was issue 6 which was in these words: Whether defendant 1 is entitled to get the costs of this suit from the plaintiff?

3. The Subordinate Judge has granted a decree to the plaintiff to the extent of his one-third share, he being of opinion that on the construction of the deed the compromise of 1881 was entered into between the plaintiff's father on the one hand and the General Manager of the Court of Wards on the other. The plaintiff is entitled to one-third share in the whole allowance, the allowance of Rs. 200 being distributable between the plaintiff on the one hand and his brothers on the other. On this footing he has come to the conclusion that the plaintiff shall get Rs. 1,900 as the allowance from which a sum of Rs. 1000 which has already been taken as a loan, should be deducted and that the plaintiff should be granted a decree for Rs. 900. The Subordinate Judge has disallowed the plaintiff's claim for the yearly puja allowance of Rs. 400.

4. It is against this decree that the present appeal has been taken to this Court by defendant 1 and the main contention is, as has already been indicated, that the Subordinate Judge has gone wrong in allowing a decree to the plaintiff on the basis that the monthly allowance is Rs. 300 per month. In other words it is contended that the Subordinate Judge has gone wrong in the award of the excess allowance to the extent of Rs. 100 per month. The foundation for this excess claim of Rs. 100 is really the settlement arrived at after the institution of the suit of 1893. That suit was based on the letter of 1886 to which reference has already been made. With reference to that suit it is necessary to reproduce the following statement in para. 8 of the plaint. Para. 8 is in these terms:

Suddenly however defendant 1, being instigated by some selfish evil adviser and man of mean propensities, stopped paying the said increased monthly allowance of Rupees one hundred per month. And he did not pay the Puja Parbani also. The plaintiff's father not being able to understand the cause of this sudden and wonderful behaviour nor the purpose of defendant 1 waited for a short time and being fruitless in his attempt to settle the matter amicably finally brought a Suit No. 8 of 1893 in the first Court of the Subordinate Judge, at Mymensingh against defendant 1 claiming recovery of the said Malikana monthly allowance at the rate of Rs. 300 (rupees three hundred) per month and the arrears due at the said rate of Rs. 300 (rupees three hundred) per month and the arrears due till then at the said rate together with interest and also the sum on account of Puja Parbani. Plaintiff's father, the late Debendra Kishore Acharjya Chowdhury, was the plaintiff in the aforesaid Suit No. 8 of 1893. And after his depositions as well as the depositions of some of the witnesses such as late Moharaja Surjya Kanta Acharya Bahadur and some others in the said Suit No. 8 of 1893, were recorded, and during the pendency of the suit there was compromise between the parties, and as defendant 1 admitted the claim of the plaintiff, the plaintiff's father, the late Devendra Kishore Acharya Chowdhury withdrew the aforesaid Suit No. 8 of 1893. Since then the plaintiff's father used to get till his death the monthly allowance at the rate of Rs. 300 (rupees three hundred) per month and the Puja Parbani at the rate of Rs. 400 (rupees four hundred) per annum

5. It is to be noted that this statement in para. 8 of the plaint indicating clearly that this sum of Rs. 300 was being paid as the result of the compromise between the parties in Suit No. 8 of 1893, was not challenged or traversed in any way in the written statement except by the denial in para. 9 in very general terms

that the defendant denies all the statements made in the plaint of the plaintiff save and except those he admits in distinct terms in his written statement and the same should be taken as denied.

6. There is no denial of the averment made in para. 8 of the plaint and under the present Civil Procedure Code the evasive denial in para. 9 in the written statement can hardly be regarded as a denial of the statement in para. 8 of the plaint. We shall have to refer to this question again. The ground taken in this appeal is that as there is no consideration for the letter Ex. 6 of the year 1886 by which defendant 1 agreed to pay excess sum of Rs. 100 per month as allowance the judgment of the Subordinate Judge cannot be sustained there having been no compromise of doubtful rights of the parties in the suit of 1893. It has been conceded on behalf of the respondents by Dr. Pal who appears for the plaintiff that there is no consideration or permission to pay the excess sum of Rs. 100 per month. But it is said that whether there was a consideration or not a suit was brought in 1893 based on that letter Ex. 6 and the suit terminated after defendant 1 had agreed to admit the claim of the plaintiff to a larger allowance of Rs. 300 per month and that consequently the present claim of the plaintiff is really rested on the compromise which was arrived at in the suit. It has been very strenuously contended on behalf of the appellant by Mr. Jogesh Chandra Roy that no papers relating to the said compromise are forthcoming, that the plaint of Suit No. 8 of 1893 has not been filed, that the written statement in that suit is not before the Court and that the petition of compromise, if any, has not been placed before the Court. The answer to this contention is that the facts which led to the compromise of Suit No. 8 of 1893 are distinctly and clearly stated in para. 8 of the plaint, and that they have not been controverted in a written statement in the way in which they should have been and there is the well known principle that the parties are limited by the case made in the pleadings and facts which have been admitted in the pleadings need not be proved. This principle has been followed in connexion with the suit in the present case. The Subordinate Judge has founded his decision on the view that the circumstance with regard to the compromise must be taken as they are stated in para. 8 of the plaint. He points out in his judgment this:

It is contended by defendant 1 that the plain-father brought the M.S. No. 8 of 1893, against defendant 1, claiming this extra allowance of Rs. 100 permonth, for a certain period; and that suit was dismissed (vide Ex. H), he cannot therefore claim that allowance again; the plaintiff's case is that suit was withdrawn. In the plaint, it is alleged that by mutual compromise between the parties of that suit defendant 1 admitted the claim of the plaintiff's father, and the latter then withdrew that suit. This allegation of admission by defendant 1 is not denied by the defendant in his written statement. So it must be held that the aforesaid money suit by the plaintiff's father was withdrawn or dismissed for non-prosecution, on defendant 1's admission of the claim of that suit. In fact, we find that even after the termination of that suit defendant 1 went on paying this extra allowance of Rs. 100 regularly to the plaintiff's father and then to his son or sons.

7. The last fact recited in this judgment that the allowance was paid even after the determination of Suit No. 8 of 1893 rather corroborates the existence of the circumstances which are narrated in para. 8 of the plaint. All that we have got of that suit is a certified copy of the General Register of that suit which has been printed at pages 15 to 18 of the second part of the paper book and which has been marked as Ex. H. Taking then the facts as stated in para. 87 of the plaint we think that there was consideration for the letter Ex. 6 and that there was sufficient foundation for the claim in the present suit and that the compromise of doubtful rights has been held to be a sufficient basis of and form a sufficient consideration for the agreement. It has been argued for the appellant that then the plaintiff or plaintiff's father had absolutely no vestige of a claim with reference to the extra allowance. In these circumstances the doctrine of compromise with regard to doubtful rights is not attracted to the present case. The question really is as to whether the plaintiff or the plaintiff's father had honest belief in the claim which they were setting forth in the year 1893 on the basis of the letter Ex. 6. There is a significant statement in that letter towards the end that registration will be effected later on. Of course that letter was never registered. But that at any rate shows that defendant 1 intended to make that document an operative one. Be that as it may the suit was brought on the basis of the agreement or promise in that letter. When the suit proceeded to some length one of the witnesses the Maharaja of Mymensingh Surjya Kanta Acharya Chowdhury who was perhaps the common relation of the parties gave his evidence and after his evidence was taken the suit was compromised. The fact is that the plaintiff's father did forego some portions of his claim in which he had honest belief on the faith of the promise contained in that letter. There was therefore good ground on which the compromise can really be sustained. We have been considering recently in another case the questions with regard to the compromise of doubtful rights and we can do no better than to refer to the decisions of their Lordships of the Judicial Committee of the Privy Council in Jayawickrune v. Amarasuriya (1918) AC 869 where their Lordships recited with approval the following observations of Bowen, J., in Miles v. New Zealand Alford Estate Co. (1886) 32 Ch D 266. The observations are these:

It is a mistake to suppose it is not an advantage, which a suitor is capable of appreciating, to be able to litigate his claim even if he turns out to be in the wrong. It seems to me it is equally a mistake to suppose that it is not sometimes a disadvantage to a man to have to defend an action even if in the end he succeeds in his defence; and I think therefore that the reality of the claim which is given up must be measured not by the state of the law as it is ultimately discovered to be, but by the state of the knowledge of the person who at the time has to judge and make the concession. Otherwise you could have to try the whole cause to know if the mode had a right to compromise it, and with regard to questions of law it is obvious you could never safely compromise a question of law at all.

8. It is said on behalf of the appellant that under the terms of the previous deed of compromise between the Manager of the Court of Wards and the present plaintiff the monthly allowance of Rs. 200 could not be varied except by registered instrument. That is no doubt the law as was pointed out by the Full Bench in 1911, there being some conflict of authorities prior to the determination of the question by the Full Bench, in Lalit Mohan Ghosh v. Gopali Chuck Coal Co Ltd. (1912) 39 Cal 284. It may be that after the plaintiff's father had proceeded with the suit of 1893 he might have failed. But after all, he had honestly believed in his claim, and the compromise arrived at by Ex. 6 is binding on the parties. We are therefore of opinion that the Subordinate Judge has rightly come to his conclusion on the issue which is justified not only on the footing of Ex. 6 but also on the footing of the compromise of the suit of 1893 and we agree with him in the conclusion he has arrived at on the issue. The first contention of the appellant therefore with reference to Issue 3 must fail. With regard to the question of costs the contention of the defendant, now appellant, before the lower Court, as it has been before this Court, was that he ought to get full costs from the plaintiff. The Subordinate Judge has directed that the plaintiff and defendant 1 should bear their respective costs and the reason which he gives is that by the additional written statement defendant 1 has raised an issue that the plaintiff is not entitled at all to any share in the allowance claimed in the suit. We are in agreement with the Subordinate Judge that in those circumstances as defendant 1 has raised a large issue attacking plaintiff's claim to the allowance the question of costs has been rightly decided. This ground therefore fails. The result is that the appeal fails and must be dismissed with costs. We assess the hearing fee at 5 gold mohurs.

Patterson, J.

9. I agree.


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