DHAMIDHAR ROY Vs. PHUL KUMARI DEBI

JUDGEMENT

(1.) This is an application for recording a compromise in the pending appeal made by respondents 1 to 3 in the following circumstances. On 20 January 1922, one Ranbahadur Singh executed a simple mortgage bond in favour of the petitioners, that is to say, Dharnidhar Eoy and his brothers, securing the payment of the principal sum of Rs. 1,30,000 on the mortgage of a number of properties, including villages Mohuda and Telmucho. In 1932, the petitioners assigned the mortgage bond to two persons, called Phul Kumari Debi and Shardamoyee Debi. Phul Kumari is the wife of one Amulya Krishna Roy, and Shardamoyee was the mother of Nakul Chandra Roy, and the grandmother of Anadi Nath Roy. The petitioner's case further was that the assignees aforesaid of the petitioners rights under the mortgage did not pay the consideration for the assignment in cash, but the arrangement between the parties was that the assignees will finance the litigation, which was anticipated, for the enforcement of the mortgage bond aforesaid. The parties had agreed that the assignees would bring a suit for the enforcement of the mortgage bond, and whatever properties will be acquired as a result of the litigation would be divided half and half between the assignees on the one part and the original mortgagees on the other. Accordingly, a mortgage suit was instituted in 1933, and a jnort-gage decree obtained by the assignees on 26th June 1935, for a large sum of money exceeding four lacs. Between January and September 1937, all the mortgaged properties except Mohuda and Telmucho were sold and purchased by the decree holders themselves for Rs. 41,000 only. They also obtained delivery of possession in April 1937. InDecember 1939, the petitioners instituted the suit, out of which First Appeal No. 102 of 1942 arose, for specific performance of the contract between them and the assignees to the effect that they would share the fruits of the decree half and half. They also prayed for delivery of possession in respect of their moiety share in the properties already purchased as aforesaid. The defendants to that suit were Phul Kumari Debi, Nakul Chandra Roy and Anadi Nath Roy (a minor under the guardianship of defendant 2, Nakul Chandra Roy, his uncle). By judgment and decree dated 30 June 1942, the suit was decreed in favour of the plaintiffs. Defendant 1 only, that is to say, Phul Kumari, preferred the appeal, which was numbered as First Appeal No. 102 of 1942, the other two defendants being satisfied with the judgment and decree of the trial Court. The plaintiffs were respondents 1 to 3, and defendants 2 and 8 aforesaid were respondents 4 and 5 in this first appeal. On 1 August 1942, defendants 2 and 8 aforesaid conveyed, their share in the decree to one ? Narsingb Prasad Lala. On 12 November 1942, on the application of the appellant, Phul Kumari, this Court ordered the stay of execution of decree of the trial Court in respect of her share in the properties purchased, on her depositing Rs. 10,000 odd rupees in the Court below by way of security. Thus, the plaintiffs, respondents in this Court, obtained delivery of possession in respect of their four annas share of the properties out of the moiety share belonging to defendants 2 and 3 by virtue of the purchase aforesaid. The petitioners, who are respondents 1 to 3 in the appeal, further allege that there was a compromise of the litigation between them and the appellant Phul Kumari, on terms which were incorporated in a sale-deed, bearing date SO January, 1943, executed by her as also by the plaintiff-respondents in favour of one Rukmini Debi, wife of Jagdamba Prasad Lala. By this sale deed, Phul Kumari Debi aforesaid conveyed her moiety share in the decree which still remained unsatisfied after the sale of the mortgaged properties except villages Mohuda and Telmucho to Rukmini Debi aforesaid, and it was specifically admitted by the petitioners that they had no interest in the decree conveyed by the sale deed. Hence, in substance, though not in form, it was a sale deed by not only Phul Kumari Debi but by the petitioners also of whatever interest they had in the unrealised portion of the mortgage decree, that is to say, their right to enforce the mortgage decree against villages Mohuda and Telmucho. The sale deed also recited the result of the mortgage decree, namely, the purchase by the decree-holders of the other properties covered by the mortgage deed and delivery of possession in their favour. Then the following material statements appear in that deed: Be it stated that Dharnidhar Roy and Ors. brought the title suit No. 46 of 1939 claiming half of the properties mentioned above auction purchased by me and Nakul Chandra Eoy and minor Anadi Nath Boy and the said suit has been decreed in favour of the plaintiffs and I have preferred an appeal in the Hon ble High Court against the said decree. I shall withdraw the appeal and neither of the parties will be entitled to claim any cost of Sub-Judge's Court or of High Court from the other party.

(2.) These are the relevant recitals in the deed of sale which now form the subject- matter of enquiry in this case. It was also recited in the sale deed that the petitioners will have no claim in respect of the decree which had been obtained for the usufruct of the auction purchased properties or the decree obtained for rent or royalty against certain persons named in the deed. It was also agreed between the parties to the deed that Phul Kumari Debi had received the entire consideration of the deed, namely, twenty thousand rupees. Thus, as a result of the alleged compromise, the decree obtained by the respondents for specific performance of the contract and for possession in respect of their moiety share in the properties purchased in execution of the mortgage decree was made final between the parties, the appeal pending in this Court having been agreed to be withdrawn. The sale deed treated the assignees as the decree-holders, and in that view Phul Kumari Debi only was to receive the consideration money. The respondent- petitioners further agreed to give up, in favour of Phul Kumari Debi, the amount realised by her in execution of decrees for rents or royalties in respect of the properties auction-purchased by her. The only advantage which the petitioners would get under the alleged compromise was that their moiety share in the properties purchased by the decree-holders would be recognised by the vendor and the vendee. The respondents on their part gave up their claim in respect of the unrealised portion of the decree which could be enforced against the two villages not yet sold in execution of the decree. The next important event which happened after, the alleged compromise was that respondents 4 and 5 in this Court, who were defendants 2 and 3 in the Court below, made an application some time in April 1943, for being transposed to the category of appellants. That application was vehemently opposed by respondents 1 to 3 who filed a long affidavit in opposition to the application. It is noteworthy that, in the long affidavit filed on behalf of respondents 1 to 3, no mention is made of the fact that the appeal had already been compromised by the sole appellant who had agreed to withdraw the same. This is a circumstance which, as will presently appear, has been sought to be utilised by the appellant in these proceedings for recording the compromise. Ultimately, on 21 October 1943, the application was rejected by this Court.

(3.) It is also necessary to state that the respondents, who had obtained a decree for costs, amounting to over two thousand rupees, against the defendants, put the same into execution against defendant-respondents 4 and 5, and realised the whole amount from them. It was stated on behalf of the appellant that those respondents had instituted a suit for contribution against her. These events have also been sought to be used by the appellant as the foundation for the contention that the decree-holder respondents had repu. diated the compromise, if any. This matter will be discussed in its proper place in this judgment. Another noteworthy feature of this case is that it was not until 8 April 1944, about sixteen months after the alleged compromise, that the application was made by the respondents for recording the compromise. An application was also filed on behalf of the respondents to the effect that respondent 2, Anildhar Roy, who had been described in the memorandum of appeal as a minor, had attained majority before the execution of the sale deed, dated 30 January 1943, and had executed and signed the same as major. It was also stated that the compromise sought to be recorded at their instance was for the benefit of the minor respondent 3, Gunadhar Roy, under the guardianship of respondent 1, Dharnidhar Roy, and, therefore, the necessary leave to compromise on the terms aforesaid was prayed for. Certainly, there has been a considerable delay in the filing of this application, and the effect of this delay will be dealt with presently.