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Meherjan Bibi and ors. Vs. Syed KamruddIn Hafiz and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in57Ind.Cas.149
AppellantMeherjan Bibi and ors.
RespondentSyed KamruddIn Hafiz and ors.
Cases ReferredZaman Khan v. Faiza Bibi
Excerpt:
power of-attorney, construction of - plaintiffs, several, executing power in favour of three pleaders--acceptance by pleaders--death of one plaintiff--legal representatives executing separate power-of-attorney in favour of same pleaders--endorsement of acceptance signed by only two pleaders--case conducted by senior pleader who did not sign acceptance of second powers--plaintiffs, whether bound by acts of senior pleader. - .....bound by the answers given to certain questions by defendant no. 2, on the said defendant taking a special oath in the manner provided under sections 8 and 9 of the indian oaths act. thereupon the senior pleader nabadwip chandra pandit presented an application on behalf of all the plaintiffs, offering this special oath to defendant no. 2 and agreeing on their behalf to be bound by the answers that the said defendant might give to the questions set forth in his application. the defendant no. 2 was thereupon examined on special oath. he answered the questions set forth in the application and in answer to one of those questions denied that rukima banu was the married wife of his father azimaddin. upon this the plaintiffs declined to examine any further witnesses and accordingly the suit as.....
Judgment:

1. This appeal is presented against an order of remand. It appears that in the suit out of which the appeal arises the plaintiffs, who were 8 in number, sought as heirs of one Rukima Banu to recover a sum of Rs. 700 said to be the dower due to that lady from the estate of her deceased husband Azimaddin. The defendants in the suit were the heirs of the aforesaid Azimaddin. The contesting de fendants' case was that Rukima Banu was not the married wife of Azimaddin and that, therefore, no dower was due from his estate to that lady or to her heirs.

2. In the course of the suit the plaintiff No. 6 died and her heirs were substituted in her place and brought on the record as plaintiffs Nos. 6A and 6B. On behalf of the original plaintiffs three Pleaders were engaged, namely, Nabadwip Chandra Pandit, Durga Prasunna Mukhopadya and Abdul Majid. When the plaintiffs Nos. 6A and 6B appeared, they presented a second vakalutnama on which only the two junior Pleaders Abdul Majid and Babu Durga Prasunna Mukhopadhya made a formal endorsement of acceptance. For this reason the learned District Judge, against whose order this appeal is presented, drew a distinction between the case of plaintiffs Nos. 6A and 6B and the case of the remaining plaintiffs. But the name of Nabadwip Chandra Pandit also appears in this second vakalutnama, and it is clear that as the senior Pleader of the three to him the management of the case on behalf of all the plaintiffs was entrusted.

3. The two vakalutnamas are in similar terms and authorize the Pleaders whose named appear therein to present to the Court applications of all sorts, to compromise the suit, to withdraw the suit, to make reference to arbitration and to give up the claim made by their clients, also to cite and examine witnesses or to refuse to examine the same. At the hearing the plaintiff No. 1, the eldest member of the family of the plaintiffs and attending to the conduct of the suit on their behalf, was examined and in the course of his examination stated that he and the other plaintiffs would be bound by the answers given to certain questions by defendant No. 2, on the said defendant taking a special oath in the manner provided under Sections 8 and 9 of the Indian Oaths Act. Thereupon the senior Pleader Nabadwip Chandra Pandit presented an application on behalf of all the plaintiffs, offering this special oath to defendant No. 2 and agreeing on their behalf to be bound by the answers that the said defendant might give to the questions set forth in his application. The defendant No. 2 was thereupon examined on special oath. He answered the questions set forth in the application and in answer to one of those questions denied that Rukima Banu was the married wife of his father Azimaddin. Upon this the plaintiffs declined to examine any further witnesses and accordingly the suit as a whole was dismissed.

4. Against the dismissal of the suit the plaintiffs other than plaintiff No. 1 preferred an appeal, with the result that the learned District Judge decreed the appeal, set aside the decree of the lower Court in so far as it related to plaintiffs other than plaintiff No. 1 and remanded the suit to be tried out in so far as the shares of the plaintiffs other than the plaintiff No. 1 were concerned.

5. The substantial question that arises, therefore, in this second appeal is whether by the takalutnama granted to him by the plaintiffs their Pleader was authorised to make the offer which he did and bind his clients by the special oath of defendant No. 2. As we have stated, this vakalutnama empowers the Pleader, amongst other things, to compromise the suit, to withdraw the same, to give up the claim of his clients and to make applications of every sort and kind. It further provides that all acts done by the Pleader for the benefit of his client would be accepted by the parties as their own acts. It is clear, therefore, that the powers given to the Pleader were very wide and when the vakalutnama authorizes him even to withdraw the suit or to give up the claim of the plaintiffs, we cannot hold that the authority given and the words used are not comprehensive enough to include also the step taken by the Pleader in placing one of the defendants on special oath and agreeing that his clients should be bound by the answers given by the witness on such oath.

6. In support of his contention that the Pleader was not so empowered, the respondent before us has referred to the case of Sadashiv Rayaji v. Maruti Vithal 14 B. 455 : 7 Ind. Dec. (N.S.) 764. But we find that that case has been dissented from in the case of Wasi-ul-Zaman Khan v. Faiza Bibi 32 Ind. Cas. 341 : 38 A. 131 : 14 A.L.J. 38, and this latter decision support the view that we take in the present case.

6. It may further be observed that in the present case the vakalutnama expressly authorizes the Pleader engaged to examine witnesses or to decline to examine them. Here on the answer given by defendant No. 2 the plaintiffs through their Pleader distinctly intimated to the Court that they declined to adduce any further evidence. On this ground also we think that the Court of first instance could not but dismiss the suit.

7. We, therefore, set aside the order of the District Judge and restore the decree of the Munsif. The appellants before us will have their costs in all Courts from all the plaintiffs in so far as the costs of the first Court are concerned, and so far as the costs of the appeal to the District Judge and the costs of this Court are concerned, from the plaintiffs-respondents other than plaintiff No. 1. We assess the hearing fee in this Court at three gold mohurs.


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