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Patna High Court
Baiju Lal Marwari And Anr. vs Narayan Hemram And Ors. on 21 February, 1928
Equivalent citations: 109 Ind Cas 261
Author: B Mullick
Bench: B Mullick


JUDGMENT

B.K. Mullick, J.

1. This is an application in revision against the appellate judgment of the learned District Judge of the Sonthal Pargannas.

2. The plaintiffs brought a money suit before the Subordinate Judge of the Sonthal Pargannas at Godda to recover Rs. 1,095-9-0 on a debt. There were originally six defendants but at the hearing the plaintiffs declined to proceed against defendants Nos. 2, 4 and 5 and tendered a compromise petition by which defendants Nos. 1, 3 and 6 had agreed to settle the claim upon payment of Rs. 900 in eight equal instalments of crops of the value of Rs. 112 80 each year. The compromise further stated that in the event of the defendants failing to pay any instalment the whole debt would become due and would be enforced by the sale of the holding of the defendants. The Subordinate Judge declined to give effect to the compromise and directed the suit to proceed.

3. There was then an appeal to the District Judge who affirmed the decision of the Subordinate Judge.

4. The Subordinate Judge relies upon Section 27 of Regulation III of 1872 which enacts that no transfer by a raiyat of his right in his holding or any portion thereof by sale, gift, mortgage, lease, or any other contract or agreement shall be valid unless the right to transfer has been recorded in the Record-of Rights and then only to the extent to which such right is so recorded. I am referred to the Record-of-Rights for Tappah Barkop which states that in that Tappah if airy headman or any riayat of the village alienates his holding or any portion of his holding contrary to the provisions of the record or to any orders passed by Government, it shall be open to the Deputy Commissioner to evict both the transferor and transferee from the area alienated and to settle it with a duly qualified raiyat of the village, or to otherwise dispose of it according to the circumstances of the case. The learned Subordinate Judge does not refer to the Record of Rights but he observes that the compromise “means in a manner a sort of bhaoli arrangement for eight years which is forbidden by Section 27 of the Regulation which as such I cannot recognise in any way.”

5. The learned District Judge in appeal does not approve of this observation but he holds nevertheless that the compromise is against the law of the district.

6. I cannot find anything in Section 27 which, renders the compromise under consideration unlawful. That part of the compromise which gives the plaintiffs permission to sue for their debt and execute their decree, if any, by the sale of the holding is inoperative and redundant if the law of the locality is that no money-decree can be executed by the sale of the borrowers’ raiyati holding; it is obvious that an admission by the debtor will not permit the creditor to do what is forbidden by law. The substantial portion of the compromise is that a sum, of Rs. 112-8-0 shall be payable year by year for eight years and as far as I can see there is nothings the law of the locality which renders such an agreement unlawful.

7. The Subordinate Judge, therefore, has wrongly exercised jurisdiction in refusing to accept the compromise. It does not appear that at the hearing before him the defendants raised any objection on the ground that the agreement had been obtained from them by undue influence or coercion or by any other unlawful means. I am informed by the learned Vakil who appears on behalf of the defendants now before me that it is his intention to raise such an objection before the Subordinate Judge. He is entitled to do so at the proper time and if he succeeds the compromise will not be recorded and the suit must proceed.

8. There is the further difficulty that the defendant No. 6 is a minor and the Civil Procedure Code requires that the Court should record reasons for accepting the compromise on his behalf. When the case reaches him on remand the Subordinate Judge will have to consider this point.

9. The result, therefore, is that the decision of the learned District Judge will be set aside and the case will be remanded to the learned Subordinate Judge in order that it may be disposed of according to law. If he finds that the compromise is not for the benefit of the defendant No. 6 he will proceed to hear the suit against him. If he finds that the defendants were induced by undue influence or coercion to make the compromise in that case also he will proceed to hear the suit disregarding the compromise. If he finds that no grounds for impeaching the compromise exist as regards defendants Nos. 1 and 2 then in that case he must give effect to the compromise and the suit will proceed only as against the defendant No. 6. The application is, therefore, allowed with costs. Hearing-fee one gold mohur.


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