Kumar Dukhinessur Malia vs Hara Sundari Debi And Ors. on 26 January, 1885

Calcutta High Court
Kumar Dukhinessur Malia vs Hara Sundari Debi And Ors. on 26 January, 1885
Equivalent citations: (1885) ILR 11 Cal 250
Author: Pigot
Bench: Pigot, Tottenham, O’Kinealy


Pigot, J.

1. This is a suit by one Kumar Dukhinessur Malia against Maharani Hara Sundari Debi for possession of certain property.

2. The circumstances out of which this suit has arisen are as follows:–The property in dispute admittedly belonged to Baboo Gobind Prosad Pundit, and was disposed of by his will, dated the 4th Asar 1265, in which he purported to dedicate it to an idol, Sri Damudor Chunder Jew. On the death of Baboo Gobind Prosad Pundit, his widow entered into possession of this property as shebait; and after her, her second daughter Maharani Hara Sundari Debi, defendant No. 1 in the cause. Plaintiff asserts that neither the deceased Baboo Gobind Prosad Pundit, nor his widow, dealt with the property as the property dedicated to the idol, but as family property. Further, he submits that the will is void and inoperative, except so far as the religious and charitable and other gifts contained therein are concerned, and he claims in his own right, and as assignee of one of the heirs under Mitakshara law, to have the will construed, his rights declared, and possession given to him of the property in dispute.

3. In answer, the defendant Hara Sundari Debi asserts that the whole property has been validly endowed by Gobind Prosad. Pundit, and that she holds as shebait; and she denies that the family is governed by the Mitakshara law.

4. The written statement of the defendant No. 2, Kumar Ramessur Malia, supports her answer. In paragraph No. 4 of his written statement he asserts that the will created a valid dedication of all the property to the idol. In paragraph 7 be denies the allegation in the plaint that there never was any actual dedication of the estate to the idol Damudor Chunder Jew. And in paragraph 11, after asserting that the Maharani is acting as shebait under the will, he goes on to say that she “has at various times committed breaches of trust in order to assist the plaintiff in his present claim.”

5. On these pleadings, ten issues were raised by the lower Court.

6. While the case was under trial, the parties came to a compromise which is to be found at page 112 of the paper book.

7. In this compromise it is recited as follows:

There are serious doubts as to whether the will of the late Baboo Gobind Prosad Pundit, dated the 4th Asar 1265 B. 8., will be valid and binding in its entirety, and the opinion of most of the vakeels and counsel is, that provisions contained in the said will as to the sheba and worship of Iswar Damudor Ghunder Jew and public charity, &c, &c, and the expenses required for the purposes thereof, are proper charges on the estate of the said pundit; and that the residue of the properties and the surplus income thereof have not been appropriated to Deb-sheba (service of the Deity) or public charities or any other purposes according to the will aforesaid; and that they are inheritable by his legal heirs. However, it being highly necessary to save trouble and expense of all parties amongst ourselves, and to settle the rights of one another, and to remove all uncertainty regarding them, we all thus decide the abovementioned suit, and settle and define our several rights to the estate left by the late Gobind Prosad Pundit in the manner following.

8. Under the settlement, Rs. 20,000 was set apart to defray the expenses of the worship of the idol; Promothonath Malia, not a party to the suit, was given 2 1/2 annas of the residue; and the remaining 13 1/2 annas were divided between Kumar Ramessur Malia, defendant No. 2, and Kumar Dukhinessur Malia, plaintiff.

9. The Maharani retained the management of the property during her lifetime.

10. This petition of compromise is dated the 10th August 1883. On the 22nd August, that is to say, twelve days later, the Maharani presented a petition in the Court of the Subordinate Judge, saying that she had entered into the compromise under pressure, did not understand its contents, and asked to be relieved. This petition was subsequently verified.

11. On the 28th August 1883, the case coming on for hearing before the Subordinate Judge, he held, on the strength of a ruling of the Sudder Dewani Adawlut in the year 1851, that the defendant was entitled to recede from the compromise before it had been completely carried out by the sanction of the Court and judgment recorded.

12. The case then came before this Court on motion, asking that the Subordinate Judge be directed to exercise jurisdiction, and give judgment according to the terms of the compromise.

13. The rule which was issued on that motion was discharged. But the Judges pointed out that the Court below, when dealing with the whole cause, would exercise a wise discretion in determining whether the document was binding upon the lady or not, in order that when the case came before this Court, the whole might be tried out once for all.

14. After the rule was discharged, the Subordinate Judge, instead of doing what he ought to have done, namely, deciding all the issues in the cause, restricted his inquiry to the fact whether the Rani was bound by the terms of compromise or not, and decreed the suit accordingly. We think it is to be regretted that he should have done so.

15. The Maharani now appeals, urging that under the circumstances the compromise should not be the basis of a decree under Section 375 of the Code of Civil Procedure. The plaintiff supports the allegation, and as a fact receded from the compromise before the judgment had been entered up in the lower Court. The person who insists on the compromise being carried out is Kumar Ramessur Malia, defendant No. 2, and his contention is, that the compromise having been effected under Section 375 of the Code, no appeal lies. In support of that he has cited the case of Ruttonsey Lalji v. Pooribai I.L.R. 7 Bom. 304 in which an agreement out of Court from which one of the parties wished to recede was enforced on motion under Section 375 of the Code. That section runs as follows:–“If a suit be adjusted wholly or in part by any lawful agreement or compromise, or if the defendant satisfy the plaintiff in respect to the whole or any part of the matter of the suit, such agreement, compromise or satisfaction shall be recorded, and the Court shall pass a decree in accordance therewith, so far as it relates to the suit, and such decree shall be final, so far as it relates to so much of the subject-matter of the suit as is dealt with by the agreement, compromise or satisfaction.”

16. This section is not new, but an amendment and modification of a corresponding section in Act VIII of 1859, and, as at present advised, it appears to us clear, with great deference to the opinion expressed in the Bombay case, that it merely covers cases in which all parties consent to have the terms entered into, carried out, and judgment entered up; and does not cover a case like the present in which the parties or some of them have declined to carry out the agreement before the judgment has been recorded. In the first place the section states that the decree shall be final, so that if it be applied to cases where the agreement is sought to be enforced against an unwilling party, the Court would have no power to refuse specific performance, although if it had been sought to be enforced in a regular suit, specific performance might never be obtained. Again, in the one ease, the decree is final: in the other case, it is subject to appeal. These considerations lead us to the conclusion that Section 375 of the Code was never intended to cover cases in which one of the parties is unwilling to have the judgment entered up. In such a case the decree must be considered as a decree for specific performance and not under Section 375 of the Code.

17. We think, therefore, that the preliminary contention of the respondent that no appeal lies cannot be sustained.

18. Even assuming that Section 375 of the Code is applicable to a case in which an adjustment has been repudiated by either plaintiff or defendant before the decree has been recorded, still we find reasons for concluding that that decree should not be allowed to stand. The Maharani is in possession of the property. It is against her that the plaintiff claims relief. He has receded from the compromise, and so did she; the party seeking to enforce it is the second defendant. So that we have this peculiar circumstance that, in a suit between the plaintiff and the defendant, the second defendant is endeavouring to enforce by motion the agreement against his co-defendant. In other words, he is seeking to do what was decided in the case of Piercy v. Young L.R. 15 Ch. D. 475 he cannot do, namely, to take the conduct of the case out of the plaintiff’s hands.

19. Again, the statement of the lady and the second defendant as to the position which this lady holds towards the property, raises a question of importance. As we understand, the first duty of a trustee is to carry out the directions of the settlement, except such as are illegal, and if he has once acknowledged himself to be a trustee he cannot set up a title adverse to that of the beneficial owner. Here the party who seeks to enforce the compromise, and the party who objects, both admit that the lady has no beneficial interest in the land, and that she holds solely on behalf of an idol. The only ground in the recital of the compromise for partitioning the property among the family is that the trustee and others have some doubts whether the trust is valid.

20. Then, again, the lady asserts that the compromise was obtained from her by pressure and by misstatement of facts.

21. Looking then at the whole case, we think that, even if it were one in which specific performance should be given, which we are far from saying, the defendant Ramessur Malia must seek such performance in a regular suit.

22. We are, therefore, of opinion that the decree of the lower Court must be set aside, and the case must be remanded for retrial upon the original issues.

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