KAMALMBAL Vs. DORASAMI CHETTIAR

JUDGEMENT

(1.) The only point for decision in this case is whether Original Suit No. 49 of 1916 has - been validly compromised between the plaintiff and the 1st defendant by a lawful agreement written under Order XX III, rule 3, of the Code of Civil Procedure, as alleged by the 1st defendant. Plaintiff s case is that though there was a mediation between the parties and an agreement was arrived at on some of the points in dispute, there were still-other points outstanding to be settled, and, therefore, there was no completed contract. The Subordinate Judge decided in favour of the 1st defendant that Exhibit A signed by the parties evidenced a completed agree-merit and gave a decree in its terms. Hence the appeal to us by the plaintiff.

(2.) The plaintiff admits Exhibit A, but con-tends that that it is only a memorandum of the points provisionally agreed to by her and that the matter remained in a state of negotiation still and that it was only after certain further points were settled after consultation with Vakils and a formal Razinamah petition was drawn up and signed by her embodying all the terms that the contract would become complete. She declined to sign Exhibit I, which was the formal petition that was so drawn up, and she contends that there was, therefore, no agreement binding on her and that the attempted compromise fell through.

(3.) In Exhibit A there is a statement in clause 7 which seemed to lend some support to her case. It says "that in respect of all the other terms of the Razinamah, Vakils shall be consulted and another Razinamah prepared and filed in Court regarding" the reliefs to be granted to each. Now, as the expression "the other terms of the Razinamah" was ambiguous and it was not clear whether it referred merely to the wording of the Razinamah as defendant contended or to other terms of dispute on the merits between the parties and as the Subordinate Judge had disposed of the matter in the first instance on the affidavits of the parties and as plaintiff s affidavit did not state what those other terms were according to her, we considered it proper that evidence should be taken of the mediators and others who took part in bringing about the alleged settlement under Exhibit A to explain the clause and we, therefore, remanded the case for the purpose and directed the Subordinate Judge to take evidence and return findings as to what the "other terms" were and whether the settlement under Exhibit A was conditional on the settlement to be arrived at on those other terms. The Subordinate Judge has taken the evidence and has returned findings on both points in favour of the defendant. He finds that the other terms" did not refer to any points of dispute on the merits between the parties, but only to the introduction of a recital as regards the truth of the Will relied on by the plaintiff and of the adoption relied on by the first defendant with the advice of Pleaders in the Razinama and to make the language of Exhibit A more formal so as to make it fit to be filed in Court, and on the 2nd issue he finds that it was not intended that the settlement under exhibit A was to be conditional on any, other terms being settled later.