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Krishna Chandra Dutta Roy, Minor, by His Mother and Next Friend Promadamoyee Dasya Alias Santamoyi Dasya Vs. Hemaja Sankar Nandi Mozumdar and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in45Ind.Cas.477
AppellantKrishna Chandra Dutta Roy, Minor, by His Mother and Next Friend Promadamoyee Dasya Alias Santamoyi D
RespondentHemaja Sankar Nandi Mozumdar and ors.
Cases ReferredMiles v. New Zealand Alford Estate Company
minor and guardian - compromise effected by guardian in consideration of settlement of disputed claim, whether binding upon minor--claim under alleged will, whether can form consideration for compromise where will not genuine. - chitty, j.1. this appeal is preferred by defendant no. 18 and arises out of a partition suit brought by hemaja sanker nandi mozumdar and others against a number of defendants for partition of a taluq known as tilak nandi ram mozumdar no. 2624 with a sudder jama of rs. 27-12-0. out of the same case arose appeal no. 328 of 1914 which we decided last week. the dispute in the present appeal is between krishna chandra dntta roy--defendant no. 18--the minor son of jagan chandra dutta roy and his wife promoda moyi on the one side and the plaintiffs who are the descendants of pran shanker on the other. the relationship of the parties will appear from the following genealogical table. there is no dispute as to the share of the plaintiffs in this estate which they inherited from their ancestor pran.....

Chitty, J.

1. This appeal is preferred by defendant No. 18 and arises out of a partition suit brought by Hemaja Sanker Nandi Mozumdar and others against a number of defendants for partition of a taluq known as Tilak Nandi Ram Mozumdar No. 2624 with a Sudder Jama of Rs. 27-12-0. Out of the same case arose Appeal No. 328 of 1914 which we decided last week. The dispute in the present appeal is between Krishna Chandra Dntta Roy--defendant No. 18--the minor son of Jagan Chandra Dutta Roy and his wife Promoda Moyi on the one side and the plaintiffs who are the descendants of Pran Shanker on the other. The relationship of the parties will appear from the following genealogical table. There is no dispute as to the share of the plaintiffs in this estate which they inherited from their ancestor Pran Shanker. They claim, however, in addition to that 5-annas 10-gundas share a portion of another 5-annas 10-gundas share which in ordinary course of inheritance would have devolved from Bimola Shanker upon his sister's son, the present appellant.

Gouri Shanker




| | |

Bhawani Shanker Pran Shanker Durga Shanker.

= Tara Sundari |

| --------------------------

| | |

| Baroda Mohima

Krishna Shanker | |

=Bhuban Moyi | |

| ------------- -----------------

| | | | |

| Hari Shanker, Gunada Shyama Hemaja

| Plff. Shanker Shanker, Shanker,

| No. 2 Plff. Plff. Plff.

| No. 3 No. 4 No. 1


| |

Bimola Shanker Promoda Moyi

=Gagan Chander

Dutta Roy


Krishna Chandra

Dutta Roy,

Deft. No. 18.

2. The plaintiff's case is that by a mimanshapatra dated 28th March 1903, Gagan Chandra Dutta Eoy acting as the natural guardian of his minor son relinquished in favour of the plaintiffs a part of the minors's share in the estate on consideration of the plaintiffs not pressing the claim which they had to the whole of that share under an alleged Will of Krishna Shanker Nandi Mozumdar. The only question before us is whether that relinquishment is binding on the minor appellant. The learned Subordinate Judge has found that there was such a Will as the plaintiffs allege, that the plaintiff's claim under it was honest and bonafide and that it accordingly formed a good consideration for the relinquishment.

3. The following facts are not in dispute. Krishna Shanker Nandi Mozumdar died on 10th March 1902, leaving him surviving his widow Bhuban Moyi, an adopted son Bimola Shanker, and a daughter Promoda Moyi, the mother of the appellant Bhnban Moyi died about a year after her husband, sometime in 1309. Bimola Shanker at the age of 11 or 12 died on llth March 1906. At that time the present appellant was only 2 or 3 months old. He was the next heir of his maternal grandfather. It was not till after Bimola Shanker's death that anything was heard of this alleged Will, but as soon as he had died the plaintiffs came forward with their claim. We have been taken through the evidence of both parties and have examined it minutely, and I think that the only possible conclusion on that evidence is that there was no such bona fide claim as the plaintiffs would have us believe. It was argued that the plaintiffs could not at this distance of time be expected to prove this Will on solemn form. I do not think that any such obligation lies upon them. It was, however, necessary for them to show that there was a Will and that upon that Will they had a claim which was made honestly and in good faith.

4. As to the contents of the mimanshaptra there can, of course, be no dispute. It was admittedly executed by Gagan at the time and under the circumstances alleged. The recital of that deed is important and runs as follows: 'Now we the first party' (that is the plaintiffs) 'contend that the said Krishna Shanker Nandi Mozumdar deceased executed a Will on the 18th Falgun 1308 and thereby provided that in the event of his adopted son dying unmarried the properties left by him should devolve in equal shares upon us, the Nandi Mozumdars, and that, therefore, the properties left by him have devolved upon us in equal shares and we claim those properties accordingly and I, Gagan Chandra Dutta Boy, father of the second party,' (i.e., the appellant before us) 'urge on his behalf that as the aforesaid Will is not found it is likely that he' (meaning Krishna Shanker) 'set it aside and destroyed it and that, therefore, the second party Krishna Chandra Dutt Roy is entitled to succeed to those properties as the heir of his maternal uncle, the said Bimola Shanker Nandi Mozumdar deceased.' It is apprehended that if the dispute continue for a long time and if litigation be carried up to the highest Court, both the parties will suffer much loss and injury and the properties which form the subject-matter of the dispute will go to rack and ruin. Moreover, no one amongst the co-villagers and relations of the late Krishna Shanker Nandi Mozumdar knows of the destruction or cancellation of his Will aforesaid and the sajd Will was executed in the presence of many respectable gentlemen whose names are given in Schedule (Ka) and they attested it as witnesses, and the Will after being read out in their presence was signed by the testator and was then signed by them in the presence of the testator as attesting witnesses. There is no certainty as to what the result will be if there be any litigation carried on in that connection and both the parties are nearly related to each other. So we both the parties, acting through the arbitration of friends, relations, well-wishers and lawyers and with their advice, settle the matter and the dispute amicably in the way stated below and execute this deed in this town of Nasariabad while in enjoyment of sound sense and composed mind of our accord and free will.' Gagan Chandra Dutta Roy now says that he was threatened by Kali Kumar Chowdhury and thus induced to give up his son's property by the mimansha patra.

5. In 1909, the mother of the appellant was appointed the guardian of his person and property and she represented him in this partition suit and is representing him in this appeal The question appears to be not between Gagan Chandra Dntta Boy and the plaintiffs but between the plaintiffs and the minor. There is a considerable difference between, the two as Gagan Chandra might not be able as a man of full age, and presumbaly of intelligence, to go behind his deliberate deed. It by no means follows, however, that the minor son would be bound by his father's action. Several cases were cited to us by the learned Pleader for the plaintiff respondents with regard to family settlements. Those cases do not, however, assist us much in coming to a conclusion in the present case. There is no doubt as to law. The question is one entirely of fact. We were referred by him to the case of Miles v. Newzealand Alford Estate Co. (1886) 32 Ch. D.266 : 55 L.J. Ch. 801 : 64 L.T. 682) 34 W.R. 669. That case is certainly useful as showing what the law is in such matters. Cotton, L, J., said: 'What I understand to be the law is this, that if there is in fact a serious claim honestly made, the abandonment of the claim is a good consideration' for a contract; and if that is the law, what we really have to now consider is whether in the present case there is any evidence on which the Court ought to find that there was a serious claim in fact made, and whether a contract to abandon that claim was the consideration for this letter of guarantee.' He further quoted the dictum of Lord Blackburn, in Cook v. Wright (1861) 1 B. and Section 559 at p, 669 : 30 L.J.Q.B. 321 : 4 L.T. 704 : 7 Jur. (N.S.) 121 : 121 E.E. 822 : 124 R.R. 649, to this effect: 'We agree that unless there was a reasonable claim on the one side, which it was bona fide intended to pursue, there would be no ground for a compromise; but we cannot agree that (except as a test of the reality of the claim in fact) the issuing of a writ is essential to the validity of the compromise.' Bowen, L.J., whose remarks alone the learned Pleader quoted, also laid down the law to the same effect. He said: 'We must treat the thing in a business way and draw an inference of fact as to what the real nature of the transaction was as between business men. But an attempt was made to show, that the forbearance was worth nothing. Of course forbearance of a non-existing claim would not be for-bearance at all'. He then went on to point out that the mere fact that the success of the claim might be unlikely would not necessarily indicate that it was not a bona fide claim. Fry, L.J., also agreed in his statement of the law. In that case the learned Judges differed in their view as to whether the claim there was an honest and bona fide claim or not, Gotten, L.J., and Fry, L.J., thinking that it was not, while Bowen, L.J., took the opposite opinion. Applying that test to the facts before us, what do we find? In this case plaintiff No. 1, Hemaja Shanker Nandil Mozumdar, and five witnesses have given evidence on the plaintiffs' side. Against them Gagan Chandra Dutta Roy has been called; and his brother Shib Chandra Dntta Boy, one Haranath Ghose, a servant of Krishna Shanker, and Promoda Moyi have also given evidence. The learned Subordinate Judge has found that there was in fact a Will as alleged by the plaintiffs, or at any rate, that the plaintiffs put forward an honest claim bona, fide believing that Krishna Shanker Nandi Mazumdar had executed such a Will.

6. The learned Subordinate Judge has certainly in two instances found as facts proved what I have been unable to discover in the evidence as recorded. He says that Gagan admitted before the witness Babu Srinath Boy, a Pleader of that Court, that a Will was executed, but, that it was destroyed by the testator. Now a perusal of the evidence of Babu Srinath Boy shows that Gagan did nothing of the kind, on the contrary the witness distinctly stated that Gagan denied the Will. In cross-examination he stated that he heard at a meeting prior to the execution of the mimanshapatra that the Will was annulled. When asked in re-examination, who told him this, he said that it was Gagan Boy. What he meant by the expression 'the Will was annulled' is not clear. The Judge has taken it as equivalent to destruction by the testator; but that does not, in my opinion, follow. The second error of fact into which the learned Subordinate Judge appears to have fallen is when he states that Shyama Charan Babu, another Pleader, advised that it, was possible to obtain probate of a copy in the absence of the original Will, and that, in consequence, an application for probate was drafted. It does not appear from the evidence of Shyama Charan Babu or indeed from any of the other witnesses that he ever gave such advice. He was asked, it is true, but what his advice was has not been elicited. All that he says is 'everything was settled,' whatever that may mean. He does not even recollect that he prepared any draft of the application for probate.

7. The story of the plaintiffs, as they now put it before the Court, is that soon after the death of Bimola Shanker, Hemaja Shanker came to Mymensingh with a view to applying for probate of this Will. We are told that there was a draft or a copy of that Will which was shown to Shyama Charan Babu, that an attempt was made to take out probate of the Will and that an application for that purpose was drawn up. Hemaja states that probably Shyama Charan Babu drew it up, though the Pleader himself does not remember having done so. Then began the negotiations for an amicable settlement between the plaintiffs and Gagan Chandra, at which at least three Pleaders and several other persons assisted. These negotiations are said to have gone on for 8 or 10 days, when ultimately Gagan, on behalf of his minor son agreed to execute the mimanshapatra upon the plaintiffs' giving up any claim which they might have under the alleged Will.

8. The plaintiffs' story appears to me to be full of the most suspicions circumstances. In the first place, Krishna Shanker had died just four years before his son Bimola Shanker. In those four years nothing had been heard of any Will executed by him. Now Bimola appears to have been very sickly. It is difficult to believe that if a Will to the effect alleged really existed, the plaintiffs would not have taken prompt measures to establish their title under it as reversioners in case of Bimola's dying childless. The evidence, so far as it goe? of Krishna Shanker's state of health immediately before his death throws very grave doubt on his capacity, both physical and mental, to execute a Will. He was suffering, as appears from the evidence of Promoda Moyi and Hara Nath Ghoso, from diabetes. He was troubled also with some cerebral affection, with the result that he was sometimes unconscious and sometimes delirious. He appears to have been in this state more or less for at least a month before his death. He died on 28th Falgun 1308 (10th March 1902) and the Will is said to have been executed on the 18th. It is more than doubtful whether he was in a condition to execute a Will. Directly the heir dies the plaintiffs come forward with an alleged Will, by which Promoda Moyi and her son are to be disinherited in favour of the cousins of the deceased. No one has ever seen this Will. In the mimanshapatra it is stated that the Will was attested by no less than 18 persons whose names are given in Schedule (Ka) to that document. It is not suggested that all these 18 persons have died or were not available for the purpose of giving evidence in this case. The only one who has been spoken of by any witness is Chandra Kishore Sarcar, who, no doubt, is dead. No one, however, of the remaining 17 witnesses was called before the Court to state that, as a fact, Krishna Shanker executed a Will and that they attested it. The plaintiffs are said to have come to Mymensingh with a draft or copy of the Will. The plaintiff Hemaja Shanker is a medical man and presumably a person of ordinary intelligence. He has not thought fit to state to the Court whether the document which he brought was a draft or a copy, still less has he vouchsafed to give the Court any explanation why the original Will, if it existed, was not produced, whether it had been destroyed or lost. This mysterious draft or copy is not forthcoming. Some of the witnesses speak to having seen it but no one says whether it was a copy or a draft. There is a considerable difference, of course, between the two. A draft does not necessarily imply execution by the testator. A copy, if it were a correct copy, would re-produce the whole Will, including the names of the testator and the witnesses. On a copy probate might be obtained if there was satisfactory evidence of the loss or destruction of the Will itself, not so of the draft. The witnesses state vaguely that an application for probate was drafted. There was no statement, who waa the executor named in this Will, or, if no executor was named, whether the application was really for letters of administration with the Will annexed. This must have teen within the knowledge of the plaintiff Hemaja Shanker. No draft or copy of this alleged application for probate has been produced. It is not stated whether it is in existence or not. It is impossible that these persons--the plaintiffs, the three Pleaders, the Am-Mukhtear Lakshan Chandra Laha and Kali Kumar Chowdhnry, can all have forgotten all the matters of importance, which they should have spoken to in this connection. The story as it is now put forward by the plaintiff is entirely inconsistent with the evidence which Hari Shanker Nandi Mozumdar, plaintiff No. 2, gave on 30th May 1910 in Suit No. 2341 of 1909. There he stated that the Will was with his jethi, i.e. Bhuban Moyi, that after Bimola's death they wanted to take out probate of the Will and searched for it but it could not be found, and that Hemaja then attempted to take out probate on verbal proof of the Will. He admitted then that he had never seen the Will and that they had got a draft of the Will either from Ambica Charan Roy of Banagram or Iswar Boy of their own village when they made a search for it. 'The draft,' he said, 'may be with us.' Then he said, 'probably it is not with us now.', That presumably would be the draft which was 'taken to Mymensingh for the purpose of the application for probate. The witness Hara Nath Ghose, who was called on behalf of defendant No, 18, but who appears to have been gained over to the plaintiffs' side, gave a version as to the execution of the Will which is also wholly inconsistent with the plaintiffs' case. In cross-examination by the plaintiffs he stated: 'I have heard Krisha Shanker Mozumdar executed a Will. I heard of it before the death of Krishna Shanker Moznmdar, probably 5 or 6 days before his death. I heard it from Chandra Sarkar. He got a written piece of paper and asked me to raise Krishna Shanker Mazumdar to a sitting posture. We both raised him and made him sit. He signed it and then Chandra Sarkar took away the paper. He said that it was a Will.' Later he said, 'I cannot say who attested it.' Apart from the facts that this witness had already stated in examination-in-ohief that Krishna Shanker Mozumdar had become almost unconscious for 5 or 6 days before his death, this evidence is entirely inconsistent with the fact of the Will having been attested by the 18 witnesses named in the mimanshapatra. It is impossible if such a thing had happened that this witness should not know about it, as he was in Krishna Shanker's service and in close attendance upon him till he died. He states that he was continuously in the ban of Krishna Sankar Boy from 10 to 15 days before his death. The evidence, of Shib Chandra Dutt Roy, who is brother of Gagan and a Muktear, does not, carry the matter any further. He admits having advised Gagan to settle the matter, but he admits that he never saw the Will or knew anything about it. On this evidence it appears to me to be impossible to come to the conclusion, either that there was a Will at all, or even that the plaintiffs ever thought that there was. There was no honest and bona fide claim put forward by them but merely a sham claim with a view to inducing Gagan Chandjra to give up some of the property in their favour. If this be the case, it is obvious that the minor cannot possibly be bound by the act of his father. There was no consideration for the agreement even had the parties been of full age, still less in the case of a minor could his property be thus bargained away.

9. It was urged upon us that Gagan after the execution of this document acted upon it; and we were shown a case in which registration of names was effected and another case, in which he had brought a suit in his son's name for a portion of the property. We are not concerned in this matter with what Gagan did. It may well be that having executed the document he felt that he had no alternative but to act upon it. His subsequent acts, however, cannot bind his minor son if his initial act in executing the document is invalid against him, How Gagan came to execute this document there is not sufficient evidence before us to determine Whether he was, as he now says, threatened or caioled into signing it, I cannot say. It appears, however, probable that considerable pressure was brought to bear upon him, He is a man in a lowly position of life, merely a copyist in a Civil Court in more or less temporary employ. It may well be, when the plaintiffs assisted by three Pleaders, all of whom it may be noted are relations of the plaintiffs, recommended him to avoid possible litigation by entering into this agreement, that he consented. It does not appear to me to be the act of a man of ordinary intelligence. One would at least have expected that he would ask to see the Will, make enquiries of the witnesses, and most probably take advice of some independent Pleader. It is clear that he did nothing of the kind. That the settlement was not for the minor's benefit cannot be disputed. It was directly contrary to his interests. About half his share in the property was given up in exchange for what, in my opinion, was a sham claim on the plaintiffs' part. In these circumstances, I hold that the mimanshapatra is not binding on the infant and that his share, which he inherited from Bimola Shanker, cannot be said to have been conveyed away by that document.

10. It was said that it was Gagan Chandra who was now putting forward this plea on his son's behalf. There does not appear to be any foundation for that though, no doubt, he has given evidence more or less in favour of his son's contention. His wife Promoda Moyi is her son's certificated guardian. She may possibly have been assisted by her husband. What we have to consider, however, is not who is now representing the minor, but what are the minors' interests in this matter, have they been properly protected, and if not, what should this Court now do in his behalf? It is just as though the minor had attained his majority and was himself seeking to impugn his father's action. It is clear that he could not be held bound by it.

11. I think that the decree of the Subordinate Judge, so far as it relates to the dispute in this appeal, must be set aside and that it must be declared that the plaintiffs are entitled only to a 5-annas, 10-gundas share while the defendant No. 18 is entitled also to a 5-annas 10-gundas share in the property in question. This will neeessitate a revision of the allotments. Plaintiffs must pay the costs of defendant No. I8, both in the Court below and in this Court.

13. 12. Beachcroft, J.--I agree that this appeal must be decreed in the manner indicated by my learned brother. Before stating my reasons for coming to this conclusion, I wish to refer to the two points on which the learned Subordinate Judge appears to have misstated the evidence, both points of some importance one particularly so. He says in his judgment that Gagan admitted before Srinath Roy, the Pleader, that a Will had been executed but destroyed by Krishna Sanker. In Srinath Roy's evidence there is no allegation of an admission by Gagan. I presume the learned Judge is referring to two statements, which are as follows: 'I heard in the sittings that the Will was annulled;' and in re-examination, I heard from Gagan Eoy that the Will was annulled.' Possibly the learned Judge is right in interpreting the word 'annulled' as meaning 'destroyed by the testator.' But even so, I cannot treat these two sentences as disclosing an admission by Gagan that a Will had been executed. They are equally consistent with a suggestion by him that the Will had been destroyed assuming, while not admitting, the allegation of the plaintiffs to be true, that one had in fact been executed. Nor can I find any trace of any admission by Gagan elsewhere in the evidence that any Will had ever existed. Evidence will naturally be somewhat vague when the witnesses speak to what happened eight years previously; but the rest of the evidence, such as it is, suggests the contrary. Kali Kumar says, Plaintiffs said that there was a Will of Krishna Sanker and Gagan Roy denied it.' Ravati Sankar Roy says, 'Gagan could not positively say if there was or was not any Will.' Lakshan Chandra Laha says, Gagan Babu said the Will was missing.' I think it would be straining language to find in any of these, statements an admission by Gagan that Krishna Sanker had in fact executed a Will.

14. The other, misstatement is that the Pleader Shyama Charan advised that it was possible to obtain probate in the absence of the original Will. Shyama Charan does not say so, nor does the plaintiff Hemaja. Syama Charan no doubt says he saw a paper purporting to be a draft or copy of a Will and made a draft of an application for probate, but he was not asked if he advised that probate could be obtained without the original. Hemaja does not even siy that he consulted Shyama Charan. The Pleaders whom he consulted were Mohendra Habu and Mohim Roy Babu. I think it may be inferred that Syama Charan was consulted even if not by Hemaja, but from the mere fact that he prepared the draft of the application for probate, if indeed he did prepare it, for he does not remember doing so, it cannot be presumed that he advised that probate might be obtained. Nor are we told that any other Pleader gave such advice.

15. Not a single witness has been called on behalf of the plaintiffs to speak to the fact that Krishna Sanker did execute E. Will, though a number of persons are named in the compromise as having witnessed such execution. And it has been reiterated in argument that the plaintiffs were not bound to prove execution of a Will. No doubt that is true, and it is equally true that primarily all that it was necessary for them to prove was that they had a bona fide claim, even though it may have been a weak one, which they intended to litigate, for where that is the case, withdrawal from litigation is ordinarily a sufficient consideration and the party supporting a compromise is not called upon to prove the quantum of the consideration against the party impugning it. That they alleged a claim there is no doubt and that they would have attempted to litigate it is not improbable, considering the value of the property. But to prove that the claim was a bona fide one there could hardly have been better evidence than that of persons who had seen Krishna Sanker execute a Will, especially if coupled with evidence that the plaintiffs obtained legal advice that they had a good fighting claim. Not that it was necessary for them to show even that they had a strong claim or one likely to succeed, for as Bowen, L.J., said in Miles v. New Zealand Alford Estate Company (1886) 32 Ch. D.266 : 55 L.J. Ch. 801 : 64 L.T. 682) 34 W.R. 669: '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 ho turns out to be wrong.'

16. Lakshan no doubt says he came to know of the Will the day after it was executed and Hemaja speaks of hearing of it 3 months after Krishna Sanker's death. But none of the witnesses ever saw the Will, and no attempt appears to have been made to take probate of it till Bimola died some years later, or even to see that it was kept in safe custody. There is no doubt a suggestion in Hemija's evidence that Gagan had taken the Will, with tha implication that he made away with it, but the suggestion was never put to Gagan, who with the other witnesses for the defendant was examined after plaintiffs' second witness and before Hemaja.

17. It is strongly contended on behalf of the plaintiffs that as regards the execution of a Will they need do nothing more than refer to Gagan's own statement in the mimanshapatra that a Will had been executed, and it was repeatedly urged that even now Gagan does not deny that one was executed. As regards the latter point Gagan's evidenne is perfectly clear that he had never heard of the Will before Bimola's death and has no personal knowledge of there ever having been a Will. To the first point there are two answers; the argument identifies Gagan with the minor and thereby begs the question at issue, and is fact Gagan in the mimanshapatra does not admit execution of a Will. What is stated in the document is that the first party alleged execution of a Will while Gagan urged that the disappearance of the alleged Will pointed to its destrustion, bit there is no admission by Gagan that a Will had baen executed. Nor do I think that such an admission can ba spslled out of the following sentence, that certain persons named in the schedule were witnesses to the Will.

18. Now while, on the evidence before us, there is every reason for doubting whether Krishna Sanker did ever in fact execute a Will, apart from the question of his having subsequently destroyed it, what we have mainly to look to is the facts before the parties at the time of the compromise, and to ascertain whether the compromise was for the benefit of the minor and the test of the minor's benefit is no whether he got a good bargain out of the compromise but whether the guardian, who acted for him, acted as a prudent man would) have acted in arranging his own affairs. The minor will not be bound by the guardian's act, if there has been a concealment of material facts or if the facts necessary to enable the guardian to correctly appreciate the minor's interests have not been disclosed.

19. Gagan says he was induced to enter into the compromise by threats, the threats being to the effect that plaintiffs would litigate the matter up to this Court and that the property would be ruined by the litigation. He says, seeing that the property was of small value, he realised that litigation would ruin it and so consented. It is argued by the plaintiffs, and it was so found by the learned Subordinate Judge, that Gagan knew that the value of the property was considerable, sertainly much more than he crosses to admit that he understood it to be. I think that finding to be correct, though the fact that Gagan's own house was near Gachihata is not, considering that Gagan was employed in the Civil Court, in my opinion, a good reason for coming to that conclusion, He had, however, assisted in the management of the property after Krishna Sanker's death and must have had a fair idea as to the value of it. But that very knowledge should have told him that there was not the same fear of ruin of the property from the threatened litigation as there would have been in the case of a smaller estate. Facts which might justify compromise where a small estate is at stake, might not justify compromise in the case of a large property.

20. Now, what was the position? The minor would sucoeed to the whole estate in the absence of a Will. Litigation was threatened on the ground that Krishna Banker had executed a Will, but admittedly no. Will could be found and Gagan knew it. Gagan was in a strong position. One would have expected some evidence as to the course which the deliberations took, to show how Gagan was persuaded that compromise was in the minor's interest. After such a lapse of time the evidence might not be very definite as to details but the broad features might have been indicated. There is no such evidence. There ia no suggestion that any of the persons who are said to have been witnesses to the Will told Gagan of what they knew. It is not alleged that Gagan was shown the draft or copy on the strength of which the plaintiffs were threatening to apply for probate. It was not even suggested to Gagan that he hadever seen that paper. It was not suggested that the plaintiffs were ready with an explanation for the disappearance of the alleged Will. In fact the deed of compromise negatives the idea that they had any explanation.

21. Possibly Gagan was overwhelmed by the Pleaders who were advising compromise as friends of the parties. An indication that their advice was not altogether disinterested is to be found in the evidence of Ravati Sanker Boy. He says: 'in the sitting of execution we did not raise any question about Will as the matter was going to be compromised between the parties. We rather asked him not to do anything which would give us the trouble of deposing in a Court. We did not raise any question about any term of the solehnama lest the compromise would fail'. Ravati does not remember giving any help in bringing about the compromise. His evidence rather suggests that he took no part in it beyond attesting the document. He was, however, according to his evidence given to understand that the Will was in existence, and his evidence that at the time of execution they asked Gagan to do nothing which would bring them into Court as witnesses suggest that even at the eleventh hour Gagan was oppressed with doubts.

22. It does uot appear that Gagan consulted any Pleader. It is argued that he had the advice of his brother Sib Chandra Roy, a Mnkhtear. That is true and Gagan says that Sib Chandra advised him to compromise. Sib Chandra admits that he did so, but also admits that he made no enquiry whether any Will had been executed. He says his first impression was that the Will was in existence. That impression was apparently corrected later, though we do not know when it was first corrected, for he says, 'it was said that the Will had been missing.' At the time of execution of the compromise, he says Lakshan Hemaja and Hari Sanker said the Will was missing. The information given to Ravati, to which I have already referred, as to the Will being in existence shows at least a suppression of the truth and to that extent corroborates Sib Chandra's evidence that he at first believed the Will to be in existence and that belief might be sufficient to cause him to advise Gagan to compromise. One would have expected that advice to be withdrawn when Gagan told him, as one cannot but imagine he must have, that no Will was to be found. However, it is at least doubtful whether Sib Chandra was in possession of the full facts when he advised compromise, there is certainly no evidence that when he did so he knew the plaintiffs were basing their claim to probate on what has been degoribed as a copy or a draft of a Will but the real character of which is unknown.

23. That Gagan subsequently acted on the deed of compromise as evidenced by applications for registration of the minor's name and the kabuliyat Exhibit 8, is not surprising whatever view may be taken of Gagan's conduct in the compromise.

24. The conclusions, to which I come on the evider.ce are that it is extremely doubtful whether the plaintiffs had a bona fide claim, for even the filing of an application for probate would not necessarily indicate that the claim was bona fide, and that the compromise was certainly not for the benefit of the minor. Gagan did not act as a prudent man would have acted in his own interests. Whether he was careless or over-timid, it is clear that he acted without a proper appreciation of the facts and that the minor's interests suffered in his hands.

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