SOURENDRA NATH MITRA Vs. TARUBALA DASI

JUDGEMENT

(1.) This is an appeal from the High Court of Judicature in Calcutta, who, differing from the Subordinate Judge of Hoogly, refused to record an alleged memorandum of compromise and to make a decree in accordance therewith. The disputed compromise was made in a partition suit in which the present appellants were plaintiffs and the present respondent was defendant. The question at issue is whether an agreement of compromise made between the plaintiffs and counsel for the defendant bound the defendant. It involves important considerations as to the authority of an advocate in India to bind his client. The parties are members of a Hindu family governed by the Bengal school of Hindu Law. The suit related to the joint property inherited from the paternal grandfather of the plaintiffs, one Ishan Chandra Mitra, who had died in 1900. The plaintiffs were the children of the two elder sons of Ishan Chandra Mitra. The defendant was the widow of the third son, Charu Chandra Mitra, who had succeeded to the share of their unmarried son, who had died in 1920. She was a pardanashin lady.

(2.) The plaint filed in April 1923, alleged that the property was in the joint possession of the three brothers, and that after the death of the eldest brother the defendant's husband Charu managed the joint estate. It further alleged that Charu had started business on his own account and had used moneys of the joint property for the purposes of this business. It claimed partition of the joint property which was scheduled to the plaint, and of any other property which should be found to be joint, and an account of the dealings of Charu with the joint estate. The defendant's written statement, filed on 6 August 1923, denied that her late husband had conducted the alleged business on his own account, and alleged that his transactions were all joint and further alleged that she had through her attorneys proposed an amicable partition and had no objection to a partition, and that she had the right to bring a separate suit to recover her jewellery and a sum of Rs. 50,000 on account of her husband's life policy, which she said were on deposit with the plaintiffs. She further alleged that she would be entitled to demand accounts from the plaintiffs.

(3.) Meantime, before filing her written statement, she had on 4 June 1923, filed a petition for a receiver, alleging acts of waste against the plaintiffs, and that it was necessary that the books of account should be placed in independent custody, and provision made for paying her Rs. 50,000 to provide for the costs of the suit, and for payment of a monthly allowance pending the suit. On this application affidavits were filed on both sides. The date for hearing of the application was postponed by the Subordinate Judge from time to time. The first hearing in Court appears to have been on 18 August. It was adjourned to 25 August and again was part heard. It was further heard on 1 September and the 3 and on the latter day the possibility of a compromise was mentioned to the Judge, and it was adjourned to 5 September. On 5 September it appears that the defendant filed a petition assented to by the plaintiffs, praying for time for amicable settlement of the suit, and the Judge ordered an adjournment to 15 September and that "parties do file the petition of compromise on that date." On the 3 and 4th, memoranda of compromise were signed by the plaintiffs and counsel for the defendant. On 15 September the plaintiffs alleged that a compromise had been arrived at, while the defendant said that there was no concluded agreement. Eventually the learned Judge, after several adjournments and after hearing oral testimony, decided on 31 March 1924, that an agreement had been concluded, that it bound the defendant and made a decree in accordance therewith. The High Court reversed this decision on 18 December 1924, holding that counsel had no authority to compromise the suit without express authority, and that it had not been shown that the defendant a pardanashin lady, had consented to the compromise.