RAJA SHIBA PRASAD SINGH Vs. TINCOURI BANERJI

JUDGEMENT

(1.) This appeal arises out of a suit on a handnote executed on 22nd February 1934 by the defendant, appellant in favour of late Kedar Nath Banerji, father of the plaintiffs-respondents, for Rs. 2,90,000 carrying interest at Re. 1 per thousand per annum. The circumstances according to the plaintiffs, under which the handnote was executed are as follows: Raja Durga Prasad Singh, late proprietor of the impartible Jharia Raj, died in March 1916, leaving three widows: Rani Prayag Kumari Debi, Rani Subhadra Kumari Debi (since deceased) and Rani Hem Kumari Debi, and several agnatic relations including the defendant. According to the rule of lineal primogeniture by which the succession to the estate was governed the defendant succeeded Raja Durga Prasad Singh. On 6 March 1919, the three Ranis aforesaid filed a suit (Title Suit No. 48 of 1919) in the Court of the Subordinate Judge of Alipore against the defendant claiming the Jharia Estate and other properties left by their husband with mesne profits. The plaintiffs father, late Kedar Nath Banerji, looked after that litigation in its various stages on behalf of the Ranis. The trial Court decreed the suit in part and both parties appealed to the High Court at Calcutta. The appeals were disposed of by the High Court on 17 August 1925 and the suit was remanded to the trial Court. Against the decision of the High Court both parties preferred appeals to the Privy Council which were disposed of in April 1932. The suit was remitted to the High Court on certain matters and was finally disposed of by its decree dated the 11 August 1933. Under this decree, the defendant was liable to pay to the Ranis Rs. 20,04,526.5.0 for mesne profits etc. Both the parties then applied for leave to appeal to the Privy Council.

(2.) In the meantime, the Ranis applied to the Alipore Court for transfer of the decree for Rs. 20,04,526.5.0 to the Subordinate Judge's Court at Dhanbad for execution. The parties however entered into compromise on 22 February, 1934 which terminated the litigation. In the course of that litigation the plaintiffs father Kedar advanced to the Ranis various sums, from time to time, for litigation expenses for which they executed a mortgage bond in his favour on 5 June 1929 for three lacs of rupees. By the terms of the aforesaid compromise it was agreed between the two surviving widows Rani Prayag Kumari and Rani Hem Kumari on the one hand and the defendant on the other that the latter would pay to the former, in full satisfaction of their claims, eighteen lacs of rupees out of which he undertook to pay Rs. 4,40,000 to some of their creditors including Kedar who was entitled to get Rs. 2,90,000 from them under the said mortgage. In the compromise petition, the Ranis gave credit to the defendant for the said sum of Rs. 4,40,000 and for the remaining Rs. 13,60,000 payable by the defendant directly to the Ranis, provisions were made for payment by instalments. Accordingly, the defendant, in consideration of credit having been given to him by the Ranis in the compromise petition, executed in favour of Kedar the handnote in question for Rs. 2,90,000.

(3.) The defendant is said to have paid on repeated demands Rs. 7,100 only in several instalments towards the dues on the handnote. The claim has been laid at Rupees 2,83,550. The defendant contested the suit on the grounds inter alia that the hand, note in suit was without consideration and obtained by undue influence. It is alleged that it was at the instigation of Kedar that the Ranis brought the Title Suit No. 48 of 1919, that the Ranis who were pardanashin ladies were completely under the influence of Kedar, that he had never advanced any money to them for the litigation expenses, that the mortgage bond executed by them in his favour on 5 June 1929 was without consideration and was obtained by undue influence, that at the time of the compromise the defendant had to agree to have the names of Kedar and two others entered as creditors as they created a situation in which the negotiations for the compromise would have fallen through, if their names were not so entered, and the amounts of their dues were not so entered, and the amounts of their dues were mentioned in the compromise on their mere allegation which the defendant was compelled to accept for the time being as correct and that the defendant in order to persuade Kedar not to dissuade the Ranis from entering into compromise had also to pay him Rs. 60,000 in cash at the time of the compromise.