BISHAMBHAR Vs. RADHA KISHUNJI

JUDGEMENT

(1.) This is a second appeal by plaintiff against a decree of the lower appellate Court dismissing his appeal and upholding the decree of the Court of first instance dismissing the suit of the plaintiff. The plaintiff brought a suit for a declaration that a will dated 10 September 1926 executed by his cousin Mathura Prasad was illegal, null and void and ineffectual as against him. In the Court of first instance it was recorded as follows on 31 August 1927: The pleaders for the parties state that the parties to this ease agree that Babu Jwala Prasad, pleader, may be appointed referee, that the case may be decided in accordance with the statement which he may make in Court without any oath being administered to him or send it in writing, that the parties shall accept and agree to it and that they do not wish to produce any other evidence.

(2.) On 5 September 1927 Babu Jwala Prasad applied for one day's further time and on 6 September 1927 the plaintiff made an application to the Court stating that he no longer desired to abide by the statement of Babu Jwala Prasad as he had found that Babu Jwala Prasad was going to decide that there was a separation between the plaintiff and his deceased cousin Mathura Prasad effected by the mere fact that Mathura Prasad in his will had stated that he was separate. The Court came to the following finding on that date 16 September 1927: The parties have appointed Babu Jwala Prasad vakil as a referee in this case and they have agreed to stand or fall by his statement. Babu Jwala Prasad has submitted his statement and he states that the plaintiff's suit should be dismissed and that the parties should bear their own costs. Suit dismissed.

(3.) It is apparent therefore that on that date Babu Jwala Prasad made a statement before the Court, not on oath to the effect that the plaintiff's suit should be dismissed. Before us in second appeal it has been contended that the plaintiff was entitled to resile from his agreement to abide by the statement of Babu Jwala Prasad. Dr. Katju for the respondents has contended that the plaintiff should not be allowed to resile from such a statement.