SRIMATI TARU BALA DASSI Vs. SOURENDRA NATH MITRA

JUDGEMENT

(1.) These two appeals by the defendant arise out of a suit for partition and accounts. One is from an order under Rule 3 of Order 23 of the Civil Procedure Code that a compromise be recorded, and the other appeal is from the decree passed in accordance with the compromise. The properties to be partitioned were valued at over 16 lacs of rupees and the claim for accounts was valued at Rs. 10,000. 1 he parties formed a joint Hindu family governed by the Bengal School of Hindu Law. The following genealogical table will show the position of the parties.

(2.) Sourendra is guardian for his minor brother Satya Santi. Khokalal was a minor till February 1922, and his mother Parul Sundari was appointed guardian of his person and property during his minority under the Guardians and Wards Act. Tarubala took out Letters of Administration of the estate of her husband with the copy of his Will annexed after his death, and it is stated that she is entitled to the properties left by Charu as heir of her son Baidyanath, who had succeeded to the estate of his father. She has, however, been described as administratrix of the estate of her deceased husband in the plaint. All the persons lived in the family dwelling house at Hughli till March 1923. It is alleged that since the death of Baidyanath disagreements began to arise between Tarubala and the other members of the family which eventually became so acute that Tarubala found it impossible to dwell in the house at Hughli and felt compelled to leave it on 21 March 1923, and take shelter in the house of the father of her son-in-law. After leaving the family house the defendant demanded partition of the family properties and accounts from the plaintiffs through her attorney. Some correspondence pasted between the attorneys of the plaintiffs and the defendant to which it is Unnecessary to refer here. The plaintiffs anticipating the defendant filed the present suit in the Court of the Subordinate Judge at Hughli on the 12 April 1923. It appears that Jiten Roy, father of the son-in law of the defendant, who is said to be a wealthy man has been financing the defendant and acting in all matters in connection with the case on her behalf. There was no dispute between the parties as to the shares. But the dispute was whether certain properties belonged to the joint family and whether the joint family was liable for certain debts alleged to have been incurred by Charu. There was also serious controversy about the liability to render accounts by the different parties. One of the matters in dispute was whether certain properties described in Schedule "ga" attached to the Plaint, belonged exclusively to Charu or not. I need only refer to item No. 1 here, which is a colliery called Ranidih Colliery. Plaintiffs allege that this along with other properties in Schedule " ga " was Charu's exclusive property. It appears that it was heavily mortgaged, when it was acquired and the equity of redemption at the time of the suit seems to be of very little value. Defendant alleged that in is joint family property. This involves the question as to how the purchase money for the property should be debited in accounting as it was paid by Charu out of the common till, and who would be liable to discharge the incumbrance on that property.

(3.) The defendant made an application for the appointment of a Receiver on various allegations on the 4 of June 1923. This was strenuously opposed by the plaintiffs. In the proceedings relating to the appointment of a receiver four masters of dispute emerged as of primary importance, (1) The question of Ranidih Colliery already referred to; (2) a decree of Janakinath. Roy against Charu and Sourendra for about a lac and fifty thousand rupees (3) a claim by Hari Mohan -Ghose for about 50 thousand rupees for which a suit is now pending on the original side of this Court; and (4) a sum of Rs 53,000 obtained on an insurance policy on Cham's life, -which sum was deposited in common fund of the joint family. The dispute with regard to items (2) and (3) was whether those debts are payable by the joint family or by the defendant alone as representing the estate of Charu, and with regard to the 4 item, whether the defendant was entitled to get the money. Mr. N. N. Sircar, a barrister and an Advocate of this Court of considerable experience, was instructed on behalf of this lady to conduct her case with regard- So the appointment of a receiver. Jiten Roy and his son Anath, the son-in law of the lady were instructing Mr. Sircar on her behalf. Attempts were made by the relations of the parties to bring about a settlement. One such attempt made in July 1923 by Rai Mahendra Chandra Mitra Bahadur, the brother of Ishan Chandra failed. Another gentleman Mr. S.M. Bose, Barrister-at-Law, a relation of the parties, approached Mr. Sircar with a view to settlement. It appears that by their efforts certain terms were arranged under which the plaintiffs agreed to pay Rs. 5,72,500 to the lady in certain instalments on certain conditions and the lady was to give up all claims to the properties. Apparently the lady did not agree to the instalments and the rate of interest proposed. In one of his letters to Anath, Mr. Sirear wrote to him about the authority of counsel to compromise a case and said, "My client, in the case, is a Pardanashin lady incapable of judging for herself. So far as I am concerned, I have no desire to force a settlement which is unacceptable to my client but I certainly reserve to myself the right to retire from the case." This was on the 28 August 1923. The case, however, was not settled and it appears from Mr. Sirkar's letter to Jitten Roy of the 29th August that he was preparing himself, for arguing the case in Court. The bearing of the, matter of the appointment of a Receiver had commenced on the 18 August and pirtly heard on the 25 August. The arguments were resumed on the 1 September and continued till the 3rd. The order in the order-sheet of that date concludes thus; " He (Counsel for plaintiff No. 3) has not quite finished, when there has been a talk of compromise and the case is adjourned to 5 September 1923 for further hearing" What happened on the 3 September may be taken from the judgment of the Subordinate Judge as there is no dispute about those facts before us. He says: On this date the plaintiff's Counsel, Mr. S.R. Das, finished his arguments and then he sent a slip of paper containing certain terms of compromise from the Court Verandah to Mr. Sircar who was inside the Court room. As will be seen later on those terms were discussed and accepted on both sides with some modification and then embodied in the Memorandum, Exhibit I, which was signed by the defence Counsel, Mr. Sircar, and also by the plaintiff No. 1 for himself and the minor plaintiff except the plaintiff No. 3, Khokalal, as he was abent from Court that day. The terms were signed by Khokalal, on the 4 September 1923 in the afternoon . Later on in his judgment he refers to the evidence of Mr. Sircar and proceeds thus: " From Mr. Sircar's evidence it is clear that the modifications suggested by Mr. Roy were then discussed with him by Messrs. Sirear and Das and ultimately the terms were settled and embodied in the memorandum and signed without any objection on any side." On the 5th September, the order of the Court on a petition filed by the defendant was this. "Defendant has filed a petition consented to by the plaintiffs praying for time for amicable settlement of the suit. Ordered.-That the suit be adjourned to the 15 September 1923 for further hearing. Parties do file the petition of compromise on that date. It is apparent that it was not the case of either party on that date that the suit had already been compromised. The order of the 7th September also shows that neither party asserted that the suit had already been compromised, "Issues in the suit had not yet been settled". The order of the Court of the 10th September is also relevant, which runs thus: " plaintiffs pray for a week's time for settlements of issues on the score that there has been a talk of compromise between the parties- Ordered- that the suit be adjourned to 15 September 1923 for settlement of issues. Parties do settle the issues on that date if the proposal for amicable settlement falls through ". On the 15th September defendant filed a petition praying for a date being fixed for the hearing of her application for the appointment of a Receiver alleging that the proposal for compromise had not been finally settled. On that date plaintiffs filed a petition alleging that the terms bad been settled and signed by the plaintiffs and Counsel for defendant as mentioned above. They filed a copy of the memorandum of the terms signed by Mr. Sircar and the plaintiffs and prayed that the compromise be record" ed under Order 23, Rule 3 of the Civil Procedure Code. The defendant raised various objections which were overruled by the Subordinate Judge and he ordered the compromise to be recorded and passed a preliminary decree in accordance with the compromise so far as it related to the suit. The defendant appeals both against that order and the decree. Before dealing with the matter; in controversy before us, I should refer to the observation of the Subordinate Judge as to the application of the rule in England regarding the authority of Counsel to compromise a case without reference to his client. Ha appears to have held that the common law rule in England is applicable to this case, and he refers to the oases of Strauss V/s. Francis L.R. (1866) 1 Q.B. 379 and Mathews v Munster (1888) 20 Q.B.D. 141. This is contested by the appellant. Even if this case exactly come under the rule in those oases, I should be extremely reluctant to hold unless compelled to do so by any binding authority, that a rule of practice in England which has its roots in different traditions and environments should be applied in this country, particularly in the Mufassil, where people never heard of any such practice. Moreover, there are two lines of cases in England as has been pointed out by Bankes, L. J., in Shepherd V/s. Robinson [1919] 1 K.B 474. I should rather follow, wherever possible, the dictum of Lord Halsbury, L.C. in Neale V/s. Gordon Lennox [1903] A.C. 465 where his Lordship said: The Court is asked for its assistance when this order is asked to be made and enforced that the trial of the cause should not go on: and to suggest to me that a Court of justice is so far bound by the unauthorised act of learned Counsel that it is deprived of its general authority over justice between the parties, is, to my mind, the most extraordinary proposition that I ever heard ". I need hardly say anything further on the point as learned Counsel for the respondents in his careful argument did not rely upon the general authority of Counsel to compromise a case.