SARATKUMARI DASI Vs. AMULLYADHAN KUNDU

JUDGEMENT

(1.) This is an appeal from a judgment and decree dated February 27, 1920, of tha High Court of Judicature at Fort William in Bengal which reversed a judgment and decree dated April 17, 1919, of the Additional Subordinate Judge of Howrah. The main question for determination by the Board is whether or not the compromise of a certain suit instituted by the appellant to recover possession of certain lands theretofore purchased by her from one Dharma Das Kundu, since deceased, purporting to have been made and entered into on February 7, 1917, had in fact been so made and entered with her full knowledge and consent or the contrary. The appellant is a purdanashin lady aged about forty-three years. She has two sons, Raman and Srish, the latter of whom appears to be competent to some extent to transact business, and two brothers named Satish, about forty-seven years of age and the other, Sailadhar, who is younger. She can write and read in Bengali; can sign her name, and from her evidence would appear to be a person of some intelligence. The trial Judge found on the evidence before him that this compromise was not made and entered into with the knowledge and consent of the appellant. The appellate tribunal found on the evidence the affirmative proposition that it was so made, though that proposition was denied by the appellant and not proved directly by any document or by any witness. Their Lordships are not for the reasons to be stated hereafter able to take the view of the evidence upon this point which commended itself to the appellate Court. They think this latter view was erroneous and incline to think that this was due to the fact that the two learned Judges, Richardson and Shamshul Huda, dealt with the case without keeping sufficiently before their minds that an affirmative proposition is not established by showing that the evidence of witnesses who depose to a contradictory negative proposition is not reliable, The proposition that the appellant consented to the compromise entered into is an affirmative proposition. She and one of her brothers practically deny that she ever consented to it. No witness gives direct and positive evidence that she did consent to it. Yet these learned Judges consider that as the circumstantial evidence given in the case would go to show that the evidence of the appellant and her brother on this point was not reliable, they are therefore entitled to hold the affirmative proposition that she did give her consent to the compromise was proved. Of course, if there was a conflict of evidence on this point, some witnesses asserting that the appellant did consent to this compromise, some the contrary, it would be perfectly legitimate to take into consideration the circumstantial evidence with a view to show that evidence of the first class of witness was true and that of the second false. But on due case, as will presently be shown, there is no conflict of evidence of thin kind. The facts of the case may be shortly stated as follows.

(2.) On November 15, 1913, the appellant bought from the said Dharma Das Kumari certain land for the sum of Rs. 9,500. He died on the 6 of February following. He left three sons and three grandsons him surviving who are all respondents in this appeal. The appellant did not get possession of the land she purchased, and on July 11, 1914, she instituted against the above mentioned sons and grandsons of Dharma Das Kumari a suit for a declaration of her title to the land purchased and for the recovery of possession thereof. The eldest son of the deceased, Amullyadhan, and the three grandsons denied her claim and contested the validity of the sale, but the two younger of the vendor's sons filed a written statement admitting that her claim was just and well founded. The Subordinate Judge of Howrah who tried the case made on August 23, 1915, a decree allowing the appellant's claim with mesne profits and costs. From that decree the eldest son Amullyadhan and the three grandsons of the deceased appealed to the High Court at Fort William in Bengal. The appellant executed a power of attorney appointing several persons, namely, Babu Probodh Kumar Das amongst others her vakils to argue her case to inspect the records, execute documents and deposit and withdraw monies and do all such other acts, the same to be accepted and ratified as acts done by her. it has been well established and is not, as their Lordships understand, questioned in this case, that a vakil appointed under such a power of attorney as this is not endowed with power or authority to compromise the suit he is thus retained to argue The appeal came on in the High Court before Fletcher and Richardson JJ. on February 6, 1917. One Babu Haradhan Chatterjee appeared as vakil for the respondents, and the appellant appears to have been represented in addition to vakil Probodh Kumar Das by a well-known barrister, Mr. B. Chakravarti. After the hearing had proceeded for some time the learned Judges suggested that the appeal might well be compromised. The appellant's vakil at this juncture desired to consult her counsel Mr. Chakravarti, but that gentleman's attendance could not be procured apparently because he was engaged in another Court. The vakil then asked for time to consider the suggestion made, and in compliance with that request the terms of the compromise were embodied in the following document, written in English, which was on February 7, 1917, signed by the vakils of both parties and duly filed in Court. It ran thus: It may be ordered by consent that defendant No 1, Amullyadhan Kundu, do pay to the plaintiff, Saratkumari Dasi, Rs. 13,500 (thirteen thousand and five hundred only) within 22nd February, 1917. On such payment being tendered and deposited in this Honourable High Court Do the credit of the said Saratkumari Dasi on the said date, the plaintiff, the said Saratkumari Dasi, do convey to the defendant No. 1, the said Amullyadhan Kundu, at the defendant No 1's cost, the property in dispute in this appeal, free from all encumbrances, if any, created by the plaintiff since the purchase of the said property by her on the 15th November, 1913, and subject to all encumbrances existing before the date of purchase by the plaintiff (Sm. Saratkumari Dasi). If such payment be not tendered within 22nd February, 1917, the appeal stands dismissed with coats.

(3.) It is not pretended that the effect of this document was ever explained to the appellant by her vakil or by any other person. She never signed it, or a copy of it, or any document which would show that she was acquainted with its existence, contents or effect. It is written in the English language, which neither the lady nor her vakil understand. She positively swears that she never authorized a compromise of her suit to be entered into, and, as will presently be shown, when she ultimately was informed that this had been done her conduct and action were much more like that of a woman who felt that her confidence had been betrayed, and her interest sacrificed, than that of one who was struggling to break a bargain made on her behalf of the nature of which she was well aware and of which she at first approved.