Posted On by &filed under Allahabad High Court, High Court.

Allahabad High Court
Syed Khursheed Ali And Ors. vs Musammat Wazir-Un-Nissa And Ors. on 2 June, 1910
Equivalent citations: 6 Ind Cas 857
Author: Chamier
Bench: Tudball, Chamier


Chamier, J.

1. This is an appeal against a decree of the District Judge of Aligarh. The respondents object that no appeal lies inasmuch as the decree was passed upon a compromise recorded under Section 375 of the Code of Civil Procedure 1882. To this the appellants reply (1) that the learned Judge should have disregarded the compromise inasmuch as they, the appellants, resiled from it before or as soon as it was brought before the Court, (2) that the compromise was unlawful and (3) that the compromise should have been disregarded as plainly unworkable. The following facts are admitted:In July 1871, the respondent Ashik Ali mortgaged certain property to Basit Ali, father of the appellants. In November 1873, Ashik Ali mortgaged other property to the same person. In July 1905, Ashik Ali sold both properties to the respondent, Warisunnissa. After the death of Basit Ali, the appellants in April 1906 brought a suit upon the mortgage of 1871 and obtained a decree on July 15th 1907. In July 1906, the appellants brought the present suit against the respondents for preemption of the properties sold to Waris-un-Nissa. That suit was dismissed on July 15th 1907.

2. Ashik Ali appealed in the mortgage suit and the appellants appealed in the pre-emption suit. The parties then arrived at a compromise which was reduced to writing and registered. It provided that the appellants should take over the properties mortgaged to them in satisfaction of all claims under the mortgage, the amount of profits due to them up to the date of delivery of possession to be decided by an arbitrator named. The suit for pre-emption was to stand dismissed but the respondents were to pay the appellant’s costs up to the date of the compromise and Ashik Ali was to relinquish the exproprietary rights which would accrue to him on the property being transferred to the respondents, the amount of compensation being determined by the arbitrator and paid either in cash or by means of a transfer of land. It may here be mentioned that the appellants elected in the Court below to pay the compensation in cash. The provision for the transfer of land may, therefore, be disregarded.

3. The provision for the ascertainment by arbitration of the amount of profits due to the appellants and the amount payable by them as consideration for the relinquishment by Ashik Ali of his exproprietary rights, is one which is likely to give trouble hereafter but, is my opinion, a Court cannot disregard a compromise merely because it sees that the working out of the compromise is likely to give trouble. Section 375 of the Code of Civil Procedure, 1882, which applies to the present case, makes it clear that if a lawful compromise is arrived at, the Court must record it and pass a decree in accordance therewith as far as it relates to the suit.

4. The next question is whether the Court was bound to disregard the compromise because the appellants resiled from it. The appellants rely upon the decision of this Court in Bandhu Bhagat v. Shah Muhammad Khan Taqi 14 A. 350. In that case, a sulehnama was presented to the High Court by counsel and was sent to the Court below for verification. Repeated attempts were made to get the parties to verify their signatures but without success. Mr. Justice Mahmood was asked to act upon the unverified sulehnama under Section 577 of the Code. He very naturally, declined to do so. The case is no authority for the proposition that a Court may not enquire whether a compromise has been arrived at or must disregard it if one party resiles from it. On the other hand, it was held, in Appasami Nayakan v. Varadachari 19 M. 419 and Sambai v. Premjee Pragji 20 B. 304 and by the majority of the Judges in Brojodurlabh Sinha v. Ramanath Ghose 24 C. (sic) : 1 C.W.N. 597, that a Court has been given power under Section 375 of the Code of 1882 to enquire and determine whether a compromise has been arrived at and to record it and pass a decree in accordance therewith if it finds that a compromise has been effected.

5. I have followed these decisions in more than one case and, in my opinion, any other construction of the section would lead to absurd results.

6. The only difficult question in this case is whether the compromise was lawful. The agreement by Ashik Ali to relinquish his ex-proprietary rights, in return for a sum of money to be determined by an arbitrator, was nothing more or less than an agreement to sell those rights when they accrued to him. I understood the learned Vakil for the respondents to concede that the agreement was unlawful within the meaning of Section 23 of the Indian Contract Act and I think there can be no doubt that theagreement was unlawful. The result appears to be that unless this agreement can be separated from or treated as independent of the rest of the compromise, the whole compromise must be held to be unlawful and void with reference to the provisions of Section 24 of the same Act. This provision in the compromise that the exproprietary rights shall be relinquished stands by itself and it is not in so many words stated that the price was to be paid for the property as a whole, and all parties to the compromise were presumably aware that this part of it could not be enforced. But on the other hand, the sir of a proprietor is generally some of the best land in a village and the appellants may well have regarded it as an essential part of the bargain that they should get actual possession of the sir land and so get rid of a tenant who might give trouble. The compromise by itself leaves it doubtful whether the agreement to relinquish the exproprietary rights was part of the consideration for the abandonment by the appellants of their claims under, the mortgages or was a separate matter. In these circumstances, it is permissible to see what the parties have done under the compromise. On the appeal of Ashik Ali in the mortgage case, the District Judge directed that a decree should be framed in terms of the compromise. The appellants have not appealed against that decree so that one portion of the compromise has been acted upon and in execution of that decree the appellants can presumably compel the respondents to execute a sale-deed in respect of the property covered by the mortgage of 1871. It appears to me that the compromise must either stand or fall as a whole. The appellants by not appealing against the decree in the mortgage suit have made it impossible for any Court to set aside the compromise in its entirety. The conduct of the appellants shows that in their opinion the different parts of the compromise are separable. On the whole I am of opinion that this is the proper view to take of it. I would hold that the compromise is lawful except with regard to the relinquishment of the exproprietary rights and was rightly recorded by the Court below. In my opinion, the Court below was right in dismissing the appellant’s appeal, as in effect, though not in form, it did in accordance with the compromise, and I would dismiss the appeal with costs.

Tudball, J.

7. I concur. The compromise, in so far as it relates to the mortgage suit, has been accepted, and a final decree binding upon the parties has been passed. In so far as it relates to the present suit, the compromise is lawful, and the action of the appellants shows that they considered the compromise to consist of three separate and distinct portions. It is only the third portion, which relates to the mortgage on which no suit has been brought, that any part of the compromise may be said to be unlawful, and this appears to be a separate and distinct portion. I would, therefore, dismiss the appeal with costs.

8. The order of the Court is that the appeal fails and is dismissed with costs including in this Court fees on the higher scale.

Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

93 queries in 0.193 seconds.