GOLAB KOER Vs. BADSHAH BAHADUR

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff in an action for recovery of possession of an estate of considerable value left by her husband, Roy Sultan Bahadur, who died on the 11th April 1892. The circumstances under which the litigation has been commenced have not been investigated by the Court below, but in so far as they are cited in the plaint, they may be thus briefly narrated. Shortly after the death of her husband the plaintiff took out Letters of Ad- ministration with a copy annexed of the deceased's will, which had been executed on the 23rd March, 1892. The will authorized her to adopt three sons in succession, and on the 4th December 1893, she adopted one Elkhart Abrader, who died on the 30 December 1894. The plaintiff thereupon continued to be in possession of the estate of which she had been divested by the adoption and which, subsequently, reverted in her as the mother of her first adopted son. On the 5 March 1897, she took the present defendant Bad shah Abrader as her second adopted son, on condition that she would continue in possession of the entire estate during her lifetime. Shortly after disputes broke out between herself and the natural grandfather of the defendant, who claimed to be entitled to the immediate possession of the properties on behalf of the infant. On the 20 January 1903, the plaintiff instituted a suit to set aside the adoption of the defendant and for declaration that she was entitled to remain in possession of the estate as the mother of her first adopted son. The matter in dispute between the parties was referred to arbitration and, on the 18 August 1903, a decree was made in accordance with the award of the arbitrators. It is not necessary for purr-present purposes to set out in detail the terms of the award. It is sufficient to state that its effect was to confirm the validity of the adoption of the defendant, to appoint the grandfather of the latter as his guardian, to place the entire estate under the management of the Court of Wards and to make various provisions for the education and maintenance of the infant, for the maintenance of the plaintiff, and for the management of the estate generally. On the 21 May 1904, the plaintiff commenced a second suit to set aside the decree of the 18 August 1903, which she impeached on various grounds, amongst others on the ground that it had been obtained by fraud. This suit was compromised, and on the 15 June 1904, a decree was made by consent, the effect of which was to reaffirm the adoption of the defendant, to declare that the plaintiff had no subsisting interest in the estate of her husband, and generally to confirm the result of the decree of the 18 August 1903. On the 9 July 1904, the plaintiff applied for a review of this consent-decree on the ground that her consent to the compromise had boon obtained by coercion and undue influence, that she was not allowed to have independent advice, and that the effect of the compromise was not fully explained to her. The Subordinate Judge enquired into these allegations, and found that they were not established by the evidence, and accordingly dismissed the application for review on the 7th. October 1904. On the 15th December 1006, the plaintiff commenced the action out of which the present appeal arises, for recovery of the estate left by her husband either as his widow or as the mother of her first adopted, son; She further asked for a declaration that the alleged adoption of the defendant was invalid under the Hindu Law and had no legal effect, that the defend-ant had consequently acquired to valid title to the estate, and that the decree on the arbitration award of the 18 August 1903, and the consent-decree of the 15 June 1904, were vitiated by fraud and were of no legal consequence whatever. The claim of the plaintiff was resisted on the merits as well as on the ground that the decrees of 1901 and 1904 which were no longer liable to be set aside presented an effective bar to the suit. The Subordinate Judge on these pleadings raised thirteen issues. Of these the first raised the question, whether the suit was barred by Secs.13 and 43 of the Civil P. C.. The second, third and fourth issues raised the questions whether the decree of 1903 was obtained by fraud and the decree of 1904 by coercion, misrepresentation and undue influence. The fifth issue raised the question, whether the plaintiff was entitled to maintain this suit in view of her unsuccessful attempt to impeach the decree of 1904 by an application for review of judgment. The sixth issue raised the question of the legal effect of the decree of 1904. The remaining seven issues raised various questions on the merits as to the limitation, estoppels, factum and validity of the adoption of the defendant, and the conditions, if any, subject to which it had been made. As previously stilted, the Court below has not enquired into the merits, and there has been no investigation into the truth or otherwise of the allegations of fraud, misrepresentation, coercion and undue influence. The Subordinate Judge has thrown out the suit on the ground that Secs.18 and 43 of the Code of 1882 preclude its trial, that the plaintiff is debarred by reason of her ineffectual attempt to review the decree of 1904, from attacking it by a regular suit, and that, if there are new allegations on which the decree is now sought to be impeached, they might and ought to have been made grounds of attack in the application for review. The Subordinate Judge has further held that the circumstances in which the consent- decree of 1904 is alleged to have been made, do not constitute fraud, and that in any view, the plaintiff is concluded by the decision on the application for review of judgment. The plaintiff has now appealed to this Court, and on her behalf the decision of the Subordinate Judge has been assailed, substantially on three grounds, namely, first, that a consent-decree cannot, under any circumstances, be impeached by an application for review of judgment, and any order of dismissal made upon such an application does not debar the applicant from recourse to a regular suit which is her only remedy; secondly, that even if a consent-decree can be reviewed on grounds other than fraud, it cannot be reviewed when it is assailed on the ground of fraud, misrepresentation, coercion, undue influence or mistake; and, thirdly, that, even if it be assumed that a consent-decree may be attacked on the ground of fraud either by an application for review of judgment or by a regular suit, the mere fact that the injured party had recourse to an application for review of judgment does not debar him from recourse to a regular suit, that the two remedies are not inconsistent and alternative, but cumulative and concurrent, and that the decision upon the application for review does not operate as resjudicata and does not present a full investigation into the matters in controversy in a regular suit. In answer to this contention, it has been argued on behalf of the defendant, first, that a consent-decree may be attacked on the ground of fraud either by an application for review of judgment or by a regular suit, secondly, that the two remedies are alternative, so that when a litigant has made his election of one of these alternatives, he must betaken to have abandoned the other; and thirdly, that even if the remedies be regarded as concurrent and cumulative, the decision upon the application for review of judgment operates as resjudicata in the regular suit, not only in respect of matters directly and substantially raised and decided, but also as regards matters which might appropriately have been made grounds of attack. The questions raised are of considerable importance and by no means free from difficulty, and with a view to determine which of them ought to prevail, we shall begin with an examination of the judicial decisions on the matter, many of which were discussed at the bar.

(2.) One of the earliest cases in this Court which is usually treated as the leading authority upon the question of the proper mode; of attacking consent-decrees is that of Aushootosh Chandra V/s. Tara Prasanna Roy 10 C. 612 In this case it was ruled by Mr. Justice Wilson, with the concurrence of Mr. Justice Tottenham, that for the purpose of setting aside a decree passed in pursuance of a come made out of Court, there are two available modes of procedure, namely, first by : a suit and, secondly, by a review of the judgment sought to be set aside, the latter being the more regular mode of procedure. The rule thus laid down, if well-founded on principle, and really Supported by the authorities upon which the learned Judges relied, negatives the first contention of the appellant, the grounds of the decision, therefore, require: careful examination. In that case it appears that there were two appeals pending in the High Court in which the parties who were appellants in the one, were respondents in the other. Before the hearing of the appeals, negotiations for compromise were set on foot, as a result of which it was intimated to the Court that one of the appeals would have to be dismissed and the other decreed. The precise terms of the compromise were not placed before the Court, but decrees were ordered to be drawn up in the sense just indicated. Subsequently, the appellants in the appeal which had been dismissed, who were respondents in the appeal which had been decreed, applied to the Court to set aside the consent-decree on the allegation that their opponents had failed to carry out the terms of the compromise on the basis of which the Court had been invited to dismiss their appeal and to decree the other appeal. A. rule was issued, in answer to which it was contended that the case was not one in which the Court could set aside the consent-decrees on motion. The learned Judges upheld this objection, but they further went on to explain what would be the proper procedure by which: the consent-decrees could be impeached. In their opinion a suit might lie to set aside the whole transaction which had culminated in the terms of the consent-decrees, but a more proper mode of procedure would be to apply for a review of judgment. It is worthy of note that this expression of opinion was in reality an obiter dictum, because it was sufficient for the Court to hold that the decrees could not be impeached by way of motion. Apart from this circumstance, let us examine for a moment the grounds for this decision. The learned Judges in support of their view relied upon the cases of Lalji Sahu V/s. Collector of Tirhoot 6 B.L.R. 648 : 15 W.R. 23 (P.C.); Mewa Lal Thakoor V/s. Bhujhun Jha 13 B.L.R. App. XI : 2 W.R. 1.3 and Gilbert V/s. Endean 9 Ch. D. 259. The first of these cases is a decision of their Lord- ships of the Judicial Committee, and, if it really decides that an application for review of judgment is the appropriate procedure by which a consent-decree can be assailed, the matter may be taken to have been concluded by a judicial decision of the highest authority. Upon an examination of the actual decision, however, it turns out that it cannot in any sense be treated as an authority for this pro-position. There the Subordinate Judge was invited by the plaintiff to postpone the case until the sanction of the Commissioner could be obtained to a proposed settlement. The Subordinate Judge refused the application and made a decree on the merits, stating expressly in his judgment that, if his decision was contrary to the order of approval of the Commissioner, and was prejudicial to either of the contending parties, they would be at liberty to present a petition for review of judgment. Two months later the Commissioner approved the proposed compromise; and shortly after, the defendant applied for a review of judgment, alleging that his consent to the compromise had been obtained by fraud. The Subordinate Judge granted the review and his order was upheld in appeal by the High Court. Their Lordships of the Judicial Committee confirmed this view, on the ground that there was no compromise concluded in such a way as to prevent the character and particulars of the claim being reconsidered upon a petition of review. Lord Cairns pointed out expressly that provision was made in the original order to keep alive the right of either party, if dissatisfied, to have a petition of review. It is difficult to appreciate how this decision of their Lordships of the Judicial Committee can be treated as an authority for the proposition that an application for a review of judgment is an appropriate procedure to set aside a consent-decree on the ground of fraud. The second case upon which the learned Judges relied is that of Mewa Lal Thakoor V/s. Bhujun Jha 13 B.L.R. App. XI : 2 W.R. 1.3. There the question arose in a suit to sot aside an ex parte decree on the ground of fraud. The District Judge had held upon the evidence that the decree was not impeachable on the ground of fraud, and this Court affirmed that view. The learned Judges, however, went on to observe and these observations were clearly in the nature of obiter dicta, that the suit had been to a considerable extent misdirected. They pointed out that the ex parte decree might have been set aside under Section 119 of the Code of 1859, or might have been reviewed if it was shown to have been obtained by fraud. With reference to this decision, it may be remarked in the first place that the question did not arise in relation to a consent-decree, and, therefore, the case cannot rightly be treated as an authority upon the point before us. And in the second place, it may be observed that, if the learned Judges intended to lay down that an ex parte decree could be either set aside on the grounds mentioned in Section 119 of the Code of 1859, or reviewed on the ground of fraud, but could not be impeached by a regular suit on the ground of fraud, their view is inconsistent with the decision of their Lordships of the Judicial Committee in Radha Raman Shaha V/s. Pran Nath Roy 28 Cal. 475 which confirmed the decision of this Court In Pran Nath Roy V/s. Mohesh Chandra Moitra 24 Cal. 546 and Khagendra Nath Mahata V/s. Pran Nath Roy L.R. 29 I.A. 99 : 29 C. 395. These cases affirm the doctrine that an ex parte decree may be set aside by an application on the ground that summons was not served on the defendant or that he was prevented by sufficient cause from appearing when the suit was called on for hearing, and also by a regular suit on the ground of fraud; they further lay down the principle that the suit is maintainable notwithstanding that the injured party has been unsuccessful in an application to set aside the ex parte decree. The third case upon which the learned Judges placed reliance is That of Gilbert V/s. Endean 9 Ch. D. 259. In that case Sir George Jessel, M. R., held that a compromise ought not to be set aside on motion on the ground that it was obtained by, misrepresentation on concealment of material facts, but that the substantial question between the parties should form the subject of a new action. This case, no doubt, is an authority in support of the view that a consent-decree ought not to be set aside on motion as the Court was invited to do in the case of Aushootosh Chandra V/s. Tara Prasanna Roy 10 C. 612. It is, however, in no sense authority for the proposition that an application for review of judgment furnishes the appropriate procedure in a case of this description. An examination, therefore, of the grounds of the decision of this Court in the case just mentioned, shows, first, that the decision of the Judicial Committee relied upon by the learned Judges is not an authority in support of their view; secondly, that the observations in the case of Mewa Lal Thakoor V/s. Bhujun Jha 13 B.L.R. App. XI : 2 W.R. 13 upon which reliance was placed were not necessary for the purpose of the decision in that case, and that their binding effect has been very much weakened by the decision of their Lordships of the Judicial Committee in two subsequent cases; and thirdly that the observations of Sir George Jessel in Gilbert V/s. Endean 9 Ch. D. 259 do not support the view that a consent-decree can be reviewed on the ground of fraud, though they no doubt support the proposition that such a decree can be attacked in a new action on the ground of fraud. It may further be observed that the consent decree in the case of Aushootosh Chandra V/s. Tara Prasanna Roy 10 C. 612 was not impeached on the ground of fraud, and the case, therefore, cannot be treated as an authority upon the question as to the appropriate mode in which a consent-decree can be vacated on that ground.

(3.) In this connection, reference may be made to the decision of their Lordships of the Judicial Committee in Unnoda Dabee V/s. Maria Louisa Stevenson 22 W.R. 290 which may at first sight lend some support to the view that a consent-decree may be reviewed on the ground of fraud. In that case, a suit was brought against one French for himself and as guardian of his infant daughter. A decree was made in the Court of first instance against French in his personal capacity. French appealed on the ground that he ought not to have been made solely responsible for the debt and that his daughter ought to have been made liable under the decree. A decree was then made by consent in the Sadar Court between French and the plaintiff-respondent, the effect of which was to throw the substantial burden of the decree upon the infant. Many years after, when the daughter of French came of age, she made an application to the High Court, which had taken the place of the Sadar Court, for a review of judgment on the ground that the consent-decree was inoperative against her as she was not represented on the appeal, and that her father in furtherance of his own interests had fraudulently omitted to protect her interest in the way he was bound to do as her guardian. The application for review was entertained and allowed. Upon appeal to the Judicial Committee, the decision of the High Court was affirmed on the ground that it was competent to the Court to set aside on review the decree against the infant who was not represented before the Court and on whose behalf there was no assent to the compromise by any competent person. This case is manifestly distinguishable on the ground that it was in essence an application by a person to vacate a decree which was made in her absence and without her consent. She asked to be relieved from the effects of a decree to which in substance she was not a party, a condition of things entirely different from what we find in the class of cases where a person who is a party to a suit assents to a consent-decree which he subsequently seeks to impeach on the ground that his assent was secured by fraud.