SHEONANDAN PRASAD SINGH Vs. ABDUL FATEH MOHAMMAD REZA

JUDGEMENT

(1.) THIS is sun appeal from the High Court of Patna and raises. i question as to the validity of an alleged compromise on appeal of a suit in which the present appellants were plaintiffs and the respondents, who were not represented before the Board, were defendants. It is unnecessary to go into the details of the case. THE relevant facts appear to be that before the transaction in question the appellants were owners of an eight annas share in the mauza Alapur and defendant No.2 Imdad Ali owned a two annas share n the same mauza. By registered deeds dated July 12 and October 27, 1921, defendant No.2 conveyed his two annas share in the mauza to the plaintiffs, 'or a total consideration of Rs. 10,896. The plaintiffs subsequently discovered, that on June 25, 1921, defendant No.2 had executed a mortgage in favour of defendant No.1 of the whole of his interest for a loan of Rs. 2,500. There was some dispute as to the registration of this mortgage, but it was finally registered on July 29, 1922. On October 2, 1926, the plaintiffs commenced the present suit against the two defendants alleging that the mortgage was, collusive and fraudulent and its registration invalid, and asking for a declaration that their interests in the property were not affected by the mortgage. Defendant No.1 traversed the allegations against the mortgage and set up that the sales to the plaintiffs were collusive and fraudulent : defendant No.2 alleged that the mortgage was obtained by fraud of defendant No.1 and also alleged that the sales to the plaintiffs were collusive and fraudulent.

(2.) THE trial Judge, the Subordinate Judge at Monghyr, decided both issues in favour of the plaintiffs, i. e. , that the sale-deeds were good and the mortgage was bad. Both defendants appealed to the High Court at Patna. Though the notice of appeal challenges the findings of the Judge on both points it would appear that there was no substantial attack in the High Court on the plaintiffs' title. As far as defendant No.1 was concerned it was obvious that his mortgage, if good, was prior in date to the sale to the plaintiffs ; as to defendant No.2 the Judges of the High Court had no difficulty in affirming the decision of the trial Judge as to the plaintiffs' title, saying that counsel had adduced no reason for differing from it.

(3.) BUT whatever may be the authority of counsel, whether actual or ostensible, it frequently happens that actions are compromised without reference to the implied authority of counsel at all. In these days communication with actual principals is much easier and quicker than in the days when the authority of counsel was first established. In their Lordships' experience both in this country and in India it constantly happens, indeed it may be said, that it more often happens that counsel do not take upon themselves to compromise a case without receiving express authority from their clients for the particular terms : and that this position in each particular case is mutually known between the parties.