TMI Blog1956 (8) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... Sushilabai in 1931 and the daughter was born in 1939. It is contended that the plaintiff as the illegitimate son of the deceased is entitled to a share out of the estate of the deceased namely half the share which he would have received had he been a legitimate son of the deceased and therefore he is entitled to a partition of the estate on that footing. 2. In para 7 of the plaint it is stated that defendant 7, Sushilabai, made certain claims against the estate of Mafatlal in the year 1944 claiming maintenance as the Avarudha Stree of Mafatlal and also made a claim to a share in the estate on behalf of the plaintiff who was at that time a minor. The plaintiff avers that such claims having been raised through certain attorneys a compromise was arrived at by his mother Sushilabai and the two claims were treated as parts of one transaction and Sushilabai out of anxiety to secure her own maintenance in the form of a lump sum payment sacrificed the interests of the plaintiff by accepting a sum of ₹ 4,10,000/- on behalf of the plaintiff and a sum of ₹ 4,00,000/- as lump sum maintenance for herself. It is alleged that in pursuance of that compromise Sushilabai present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking advantage of their overwhelming resources and taking advantage of the illiteracy of defendant 7 she was induced to enter into this compromise of the claims of the plaintiff and herself. That evidently there was collusion between defendant 7 Sushilabai and the original first defendant and that the sanction of the Court for the said compromise was obtained by fraud and collusion. 7. In these circumstances it is contended in para 17 of the plaint that the release obtained by the original first defendant from Sushilabai on -behalf of the plaintiff is void and ineffective and not binding on the plaintiff. This averment is an important averment, because in prayer (a) it is asked that the compromise be declared to be void and in prayer (b) it is asked that the release dated 23-3-1946 be declared void and not binding on the plaintiff and thereafter there is the prayer that on, this document of release being set aside and handed over to the plaintiff for cancellation, the estate of Mafatlal be ascertained and the plaintiff should be paid his share as an (illegitimate son on a proper partition of the estate of Mafatlal. 8. In the written statement dated 27-2-1952 the defendants n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce besides her own word as regards the paternity of the minor as the Doctor who attended on the petitioner at the time of her confinement during the birth of the minor died sometime in 1944 and that the question whether the deceased was a Shudra would have to be litigated upto the Privy Council before the claim made on behalf of the minor could be finally established. It is alleged in para 15 that as regards the minor the claim made on his behalf is denied on the ground that he is the son of the deceased. In para 16 of the petition she states that the fact that the deceased was a Shudra had to be established even if the parentage of the minor Could be proved. On this she approached the Court with an affidavit in support asking for the appointment of herself as the guardian of the person and property of the minor and for sanction to accept the sum of ₹ 4,10,000/- in full settlement of all claim, right, title and interest of any kind whatsoever of the said minor plaintiff Haridas and asking for sanction to accept the amount and to invest it on behalf of the minor by depositing it with the Accountant-General and that interest accruing thereon be paid to her from time to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3A the defendants set out how this amount of ₹ 4,10,000/- was paid into the Accountant-General's office in pursuance of the petition and in full settlement of the plaintiff's claim and how the plaintiff attained majority on 23-4-1952 and applied to the High Court for withdrawing this amount which application was sanctioned and the amount withdrawn. It is stated that the application was made by the plaintiff through the same set of solicitors who represented the plaintiff in the suit and who represented him during his minority. In para 3B it is alleged that when the plaintiff applied and withdrew the moneys he adopted or ratified the compromise of his claim against the estate effected by his mother and also the deed of release dated 23-3-1945 with full knowledge of his rights and of all material facts connected with the compromise and connected with the said deed of release and the plaintiff being en- titled at that stage to elect whether to proceed with the suit or not he had elected to accept the compromise and ratify it and that therefore in these circumstances the plaintiff was precluded from challenging the compromise and the deed of release and the plain-tiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in 34 Bom LR 6: AIR 1932 Bom 128. The head note says that Order 14, Civil P. C, gives no power to the Court to frame a preliminary issue of fact, but where, however, the Judge has framed all issues which 'properly arise in a case, he may select one or more of those issues to be tried first and independently, where the evidence on such issue or issue can be conveniently separated from the rest of the evidence and the finding on that issue or those issues may render the trial of other issues unnecessary. In these circumstances it was contended on behalf of the defendants that on the documents produced there is a clear case for trial of this issue as a Preliminary issue. Mr. Purshottam, when I indicated that I was trying this issue as a preliminary issue, applied that he be allowed to lead evidence limited to this issue and I recorded the evidence of the plaintiff Haridas as well as the evidence of Keshav Shamrao Talpade who was the next friend when the suit was filed. 16. It was contended on behalf of the defendants that where a party knowing that two courses are open to him voluntarily takes up one, he thereby elects which of the two remedies or rights he would pref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntant-General and in his cross-examination he said that he was aware that when he attained majority he would be entitled to those moneys and that he was further aware that the moneys were deposited from Mafatlal's estate. He returned to Bombay from Mussori'e in 1931 December and at that time he was aware of the suit which was pending and he had been duly made aware of that by his solicitors and that he did go from time to time to Wadia Ghandy and Co.', in connection with his suit. He says that he was at that time aware of the fact that in the suit he was challenging the compromise under which the deposit was made and that he did have discussions with his solicitors in connection with the suit, but that he never had any conversation whatsoever with his mother in this connection although he lived with his mother. He said in cross-examination that he came to know about the terms of the order under which the deposit was made soon after he became a major in April 1952. He spoke to his solicitors in connection with the order and also discussed the suit matters with his solicitors after attaining majority and after April 1952 he alone gave instructions in connection with the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be that the second of the alternative awards would be substituted contrary to the finding of the learned Judge for the first award. The learned Law Lord after setting out the letter of acceptance stated that the writer of the letter acted on the assumption that the first of the alternative awards was right and on that assumption the other party having paid the money the appellant was debarred from saying that the third alternative is the one to be adopted . The preliminary objection was upheld. Scrutton L. J. at page, 358 stated that the position taken by the appellant was as if he was saying that he approbated the first award and after the payment was made he came forward to say that he would reprobate that award and substitute another award for it. The learned Law Lord observed as follows ; It has often been stated as the law that you cannot approbate and reprobate the same act; you cannot take advantage of a document or a right under it and at the same time say it is not a document which binds you. For instance you cannot take a benefit under a will and at the same time say it is invalid....... So, in my opinion, you cannot take the benefit of a judgment as bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a judgment of the Calcutta High Court reported in AIR 59 Cal 1464 namely -- 'Asiya Khatun v. Nut-jahan Khatun (F)'; where according to the learned Judges the election is a voluntary act and not forced upon a party by circumstances over which he had no control and notwithstanding his protest, and in such circumstances the party would be precluded from 'challenging that position and Mitter J. at p. 1468 (of ILR): (at p. 41 of AIR), observed as follows : Where a man has an election between several inconsistent courses of action he will be confined for that which he first adopts; the election, if made with the knowledge of facts, is in itself binding. The election must be, however, a voluntary act not forced upon him by circumstances over which he had no control and notwithstanding his protest. Similar position sometimes arises in settlements made in favour of women under marriage settlements-where at a certain stage the question arises whether the party has elected or not and One of those cases was cited namely -- 'Greenhill v. North British and Mercantile Insurance Co.',' reported in (1893) 3 Ch D 474. This was a marriage settlement between a husban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udice to the rights and contentions of both parties. He Wanted to argue that, that amounted to saying that he would take the moneys and yet at a later date be entitled to contend that he was the illegitimate son of Mafatlal and claim one-sixth of the estate apart from the sum of ₹ 4,10,000/-. The proposition has merely to be stated to carry its own refutation, but in any event the compromise was there and in my opinion the correspondence between Mulla and Mulla and Navinchandra prior to the compromise is not relevant, but even if relevant the release Ex. No. 3 is an answer to it. Mr. Purshottam also referred me to the correspondence between Wadia Ghandhy Co., and Kanga and Co. (Ex. C, Collectively) which' in my opinion again has no bearing on the question whether at the time when the moneys were withdrawn the plaintiff had or had not elected. 21. It was contended by Mr. Purshottam that the act of election must be a conscious act with the full and complete knowledge of all the circumstances under which the compromise was effected. To my mind, that is not a sound contention as I shall show hereafter, but even if that contention were to be conceded, all the circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, ''He knew the nature of the award made by Mr. Drewilt but he took the cheque and got it cashed and received the amount of promissory note at maturity. He had then waited for 9 months and then filed his bill on the ground that he had reserved, his right by writing the words under protest on the receipts. If sincere, he ought to have given back the money when he disputed the amount; he should not get advantage of the transaction and then dispute it. 22. The point made by Mr. Purshottam is clearly met by a further observation of the learned Chief Justice which is as follows : In this case before us Mr. Desai says that all facts on which he challenged the award were not known to him at the time he accepted the cheque. Mr. Desai concedes that some of the facts were known to him. But before he filed this petition he never thought it advisable to return the cheque or the amount of the cheque which he had cashed and which he had utilised. It is difficult to see how it would ever be open to a party solemnly to get up in the Court and challenge the award in respect of which he has obtained a substantial benefit and which he never thinks of returning to the other side ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I think, clear, first, that there is no one in a position of testator or donor, and secondly that the tribunal cannot be supposed to be intentionally putting the successful litigant to his election between the rights, since his right of appeal is his by statute and rule and does not depend on the bounty of the judge. In truth a judgment or such an award as we are now considering in no way resembles a will, an instrument inter parties, or a deed poll. Thereafter the learned Law Lord referred to the Rules made under the Workmen's Compensation Act and said that the Rules made it plain that an appellant may appeal from any part of the award and that his notice of motion must state whether the whole or part only of the award is complained of and that was the course taken by the appellant in the present case and that the award was sought to be varied only so far as regards payment of the weekly sum was concerned. On what ground of law or equity the launching of an appeal so limited ought to make it wrong for the appellant to receive from the respondents the sum. Swarded and the costs awarded, I am unable to understand, and counsel for the respondents were unable to enli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Saratkumari Dasi v. Amulyadhan Kundu , reported in 25 Bom LR 548: AW 1923 PC 13 and as much reliance was placed on this case, I will deal with it in detail, in that case a pardanashin lady the appellant, sued and obtained a decree against the respondent. When the respondent's appeal against the decree was pending in the High Court, the matter was compromised on the appellant's behalf and thereupon the respondents deposited a sum of money in Court under the compromise. The lady thereafter filed a suit challenging the validity of the compromise. It was held that the onus of proving that the compromise was made with full knowledge and consent of the appellant lay on the respondents and it was further held that the fact of her having applied for and obtained an order from the Court to treat part of the deposit made under the compromise is security for the costs of the respondents in her appeal to the Privy Council, did not estop her from impeaching the validity of the decree. The principal part of the judgment is devoted to weighing of the evidence as to whether the compromise was valid and their Lordships held that it was not valid. Thereafter they very shortly dealt with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urshottam in fact tried to rely upon the observations in another part of the same passage for the purpose of saying that there must be full knowledge of the circumstances before there could be any ratification and the observations are to be found on that page as follows : ''Supposing Jaganadha to have acquiesced, after he came of age, in the division of property made by Venkatadry, it was an acquiescence on the footing of a right already asserted by the father to exist in Bamanadha, and it does not appear that Jaganadha possessed all the knowledge, or was placed in the circumstances which must exist in order to make his ratification binding, even if we assume' what is not by any means clear, that such subsequent ratification would be equivalent for the purpose, in Hindu Law, to previous consent. Mr. Purshottam is not right in relying on this for the purposes of the question of election. Their Lordships were making these observations in connection with acquiescence on the part of a certain party in a certain situation and considering what would amount to acquiescence in law. Their Lordships were referring to the question of Jaganadha's acquiescence in the divi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the party should be aware of the implications that may follow upon his election. But, even if that were necessary, I am further of the opinion that when the plaintiff admitted in the witness box that he knew of the compromise and of the suit and he was aware of all the averments set out in the plaint namely, how and in what circumstances the compromise was arrived at and why the compromise was bad and yet withdrew the moneys deposited under the compromise he thereby precluded himself from challenging the compromise and the release in this suit. This is, an I have said above, based on broad principles of estoppel, namely, it is the principle of law that the plaintiff is debarred now from saying that the compromise was brought about wrongly and against his interests. 28. Before I answer the issue and make the final order in accordance with what I have stated-above, I may say that Mr. Purshottam on behalf of the plaintiff had urged that if this course which I am adopting were followed some evidence available to the plaintiff now may be lost, because the evidence is of two very old witnesses who are 75 years old. I do not think such a consideration should come in the way of my ..... X X X X Extracts X X X X X X X X Extracts X X X X
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