BATCHA SAHIB Vs. PERIYANAYAGAMMAL

JUDGEMENT

(1.) The document of compromise executed by the parties does not appear to have been before either of the Courts below so that we do not know for certain whether as a matter of actual fact that document was attested or not. The copy of the decree in O. S. No. 577 of 1936 shows that two advocates appeared for the petitioner and a pleader for the first defendant and in the ordinary course of practice, the learned District Munsiff would not have accepted the compromise and embodied it in a decree of his Court if counsel on both sides had not signed the document to vouch for its authenticity. The probability is therefore in favour of the view that the document was actually attested.

(2.) Even if it was not, I do not think that it vitiates the decree and the charge it created. In those cases where parties enter into a compromise and that compromise is embodied in a decree of Court, we have to make a distinction between the substance of the transaction and the formalities necessary to give it validity. Thus merely because a compromise is embodied in a decree it will not prevent the parties affected by it from showing that it was vitiated by fraud, deception, undue influence or other invalidating circumstances. Such factors would affect the substance of the transaction. But this does not mean that toe decree which embodies the compromise entered into by the parties should be attested in those cases where the agreement between the parties requires attestation or that because the agreement subsequently embodied in the decree is not attested, the decree is invalid. These are matters of form which do not affect the decree. The provisions relating to attestation are primarily Intended as safeguards against forgery and false personation and similar malpractices and there is no reason in principle why the requirements about attestation should be extended to agreements which immediately afterwards are incorporated in a decree of Court. After all, it is the decree that is being executed and not the agreement on which it is founded. And the decree creates a charge by operation of law (vide 'Venkatachala Piliai v Bajagopal Naidu', 1945-2 Mad L J 388, 'Abdul Gaffar v. Ishtiqa Ali', AIR (30) 1943 Oudh 354 (PB); 'Rustamali v. Aftabhusem Khan', AIR (30) 1943 Bom 414.

(3.) It is true that a different view was taken in Ghasiram v. Kundanbal', ILR (1941) Nag 513, but I find it difficult to follow it.