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TMI Blog1932 (10) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... e the District Court of Bhagalpur for the probate of a will said to have been executed by the deceased on 10th May 1913. 3. It was said that the whole of the will was in the hand-writing of the deceased himself and that he had deposited it personally with the District Sub-Registrar of Bhagalpur under the provisions of the Registration Act. It purported to be attested by the lady Savitri Thakurain herself. The will is not before us, but its main provisions which are relevant for the purposes of this appeal were that the estate was to go to one of his nephew (Suraj Mohan Thakur) as a residuary legatee and the widow Savitri Debi was to receive an allowance of ₹ 100 a month. The nature of this allowance is a subject-matter of controversy, namely, whether it was a maintenance or a legacy. Mr. Savi and one Hem Chandra Mitter were appointed executors. 4. The latter however refused to act and the application for probate was made by Mr. Savi alone. (An abortive attempt of the appellant to set up a rival will against the one propounded by Mr. Savi, was described and the judgment proceeded.) The probate case for the will propounded by Mr. Savi was taken up and probate was granted on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposing power over the estate. 7. Later on a brief analysis will be given of the plaint and written statement of this suit. The suit was taken up on 5th November 1924, when three issues namely issues 6(a); 6(b) and 6(c) were added; and the learned Subordinate Judge fixed 21st November 1924, for the hearing of issues 6 to 6(c) on questions of law only. These issues are as follows: "6. Is the plaintiff estopped from questioning the genuineness and validity of the will, dated 10th May 1913, and also her setting up a special plea of custom and law as bar to her husband's power of disposal of his properties by will or otherwise. If so, whether the said will is genuine and valid? 6(a). Whether the alleged will dated 10th May 1913, is operative as to all or any of the properties to the suit. If so, as to which of them it is operative? 6(b). 8. Whether the decree of the probate testamentary suit No. 3 of 1914 was fraudulently obtained as alleged by the plaintiff. If so, does it bind the plaintiff? 6(c). Has the Court jurisdiction to try issues 6(a) and 6(b) in this Court?" The plaintiff did not like the hearing of the suit piecemeal and moved this Court on 18th Novembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court almost every important order of the learned Subordinate Judge. The defendant put in a formal application praying that the compromise embodied in the petition be recorded. To this the plaintiff raised objections both of law and fact, the details whereof will be dealt with later. The learned Subordinate Judge has however held against the plaintiff on almost every point and has directed the compromise to be recorded and a decree to be prepared on its basis. It is against this order that the present appeal has been preferred. No costs have been allowed to the defendants, and on this and on some other matters there is a cross-objection on their behalf. 12. The questions involved in the present appeal are whether the petition of compromise contained terms which were agreed upon by the plaintiff, and whether the compromise is lawful and fit to be recorded. These simple questions have become complicated as every little incident leading up to the presentation of the petition has been hotly controverted by the parties and a mass of evidence has been adduced in support of their respective versions and the plaintiff has raised all legal objections which could have been raised against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the servants of the estate of defendant 2 broke open the residential house (Ganga Nivas), forced open the receptacles and removed and destroyed the papers. 16. The plaintiff then gave the story of the litigation about the two wills described above and characterized the probated will propounded by Mr. Savi as a forgery and asserted that the probate was obtained by fraud. The fraud alleged was that Tajeshwar Jha and Kishore Jha who were looking after the probate case on her behalf colluded with the defendant and deserted her and did not either look after the case or give proper instructions to the lawyers. She contended that even if the said will was genuine, from what happened since then it had been revoked. It could not under the Mithila School of Hindu law, which governed the parties, affect the ancestral properties mentioned in Schedule A. 17. As we have said, among the properties mentioned in that Schedule A is a life-policy of ₹ 10,225 which according to the plaintiff could not form part of the estate of the deceased, and therefore the will had no operation on it. The plaint further said that the deceased was a shebait of the debuttar properties mentioned in Schedule B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 10,225 and ₹ 7,200 its interest; (k) A decree in her favour for the properties mentioned in Schedule B as their shebait and trustee; (1) A decree for the personal properties mentioned in Schedule C to the plaint; (m) In case the properties mentioned in Schs. B and C be held to be the part of the estate, then a decree in her favour on the ground of survivorship, custom or law of inheritance; (n) A decree for future and past maintenance to be a charge upon the estate. The decree be so framed that the charge be enforceable by sale in execution of the decree; (o) Appointment of a receiver pendente lite; (p) Provision for a residence and a suitable maintenance pendente lite; (q) Other general reliefs and costs. 21. The chief defence to the suit was on behalf of Mr. Savi and defendant 2 (Suraj Mohan Thakur), their defence being almost the same. They asserted the genuineness and validity of the will and urged that the plaintiff was precluded from questioning it and denied the special right of the widow under the Mithila School of Hindu Law, raised a special plea about some of the properties claimed by the plaintiff as her personal ones, asserted that the transfers were just and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the deceased was after his death sold by Mr. Savi to Hardutti, wife of Debi Prasad Marwari, who took steps to turn her out from there. Since then the plaintiff had been residing either at Darbhanga where her cousin Ram Krishna Jha, an Advocate of this Court, was then living and practising, or at places of pilgrimage, such as Allahabad and Benares. 25. In the middle of October 1924, the lady came to Simaria Ghat for the Kartik Ganges bath and was there admittedly till 15th November 1924. Defendant 2 Suraj Mohan Thakur had attained majority few months before (in February 1924). On the evening of 15th November Suraj Mohan went there and met the plaintiff. Whether he went on invitation from the lady as alleged by the defendants or paid a surprise visit to her without the lady knowing anything about it from before are matters in dispute and will be dealt with later on. Be that as it may, it is an admitted fact that Suraj Mohan had attained majority a few months before, and the lady met him after many years, and the terms of a compromise or at least the main terms were settled between them on that occasion. 26. What the terms were is another question. The terms, whatever they might ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le estate for life in lieu of her maintenance; but so long as the debts due from the estate were not paid, she would not get from the estate more than ₹ 1,000 per month for her personal expenses. The estate would however always remain in management of Mr. Savi and Suraj Mohan Thakur. 2. The wages of her servants, medical charges, kitchen expenses and conveyance expenses would be met by the estate. 3. While at Bhagalpur she would occupy Anand Garh Palace and when out she would get ₹ 200 a month as allowance for house rent and ₹ 100 a month as allowance for conveyance. 4. She would get all her jewellery or their price and gardens claimed in the suit. 5. In order to enable her to pay her creditors she would get from the estate a sum of ₹ 1,20,000, out of which ₹ 20,000 would be paid at the time of the compromise to Ram Krishna Jha and the balance ₹ 1,00,000 would be paid to her in the course of two years, and in the meantime she would get its interest at 6 per cent per annum. This interest was to be paid to her for paying her creditors and also for expenses on charity. 6. ₹ 1,000 was to be spent every year for the annual sradh of the lady ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 2 was always to look after the plaintiff and not to let her have any sort of inconvenience or discomfort and remain obedient to her. maintenance and ₹ 3,000 as advance maintenance to be set off against future maintenance. 33. It has been contended by the appellant that the compromise cannot be recorded under Order 23, Rule 3 on the following grounds: (1) That the terms as mentioned in the petition of compromise (Ex. A) were not agreed to by the lady Savitri Thakurain and that the terms really agreed to were surreptitiously and fraudulently replaced by those given in Ex. A. (2) That even if the lady agreed to these terms, she being an illiterate Pardanashin lady did not fully understand them. They were not explained to her and she had no independent advice. Advantage was taken of her ignorance and position. (3) That the compromise is not lawful and its recording is barred under various provisions of law. 34. Some subsidiary points have also been urged. For instance, it is contended that an inquiry into the genuineness and lawfulness of the compromise is barred by res judicata. It has been argued that the order of this Court passed by Jwala Prasad and Bucknill, JJ., was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lady, but now he is said to have been in collusion with Suraj Mohan and to have been gained over to his side through Madhu Kant Jha, his grand son-in-law. The party was putting up in temporary huts of straw constructed on the bank of the river. The asnan (bath) was to last till 15th November 1924. The lady's story is that she made preparations for leaving the place that day and going to Laheriaserai (Darbhanga) where she had been previously residing. Durga Nath asked her to stay there that day as the Sankrant, which ends the period of the bath, would last till the following night. 38. She accepted this advice. In the evening Suraj Mohan accompanied by the said Madhu Kant Jha and others reached Simaria Ghat unexpectedly. The lady's case is that Durga Nath, who was in conspiracy with Suraj Mohan had been expecting him and on the pretence of the Sankrant lasting till the following night detained her at Simaria Ghat. We have however ascertained by reference to the almanac that the Sankrant did last till the following night, Be that as it may, as we have said, Suraj Mohan and his party came to Simaria. Ghat. The boy fell at her feet and implored her to settle the suit. The pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. A draft was prepared and she was assured by Durga Nath that it was done by Maulavi Sayeed-ud-din and approved by her Patna lawyers and that it contained all the terms that she said had been settled at Simaria Ghat. It is admitted that one Bodh Krishna Jha, a full brother of Mr. Ram Krishna Jha, came to Monghyr on request on the 20th. Ram Bahadur, a clerk of Mr. Ram Krishna Jha, also came to Monghyr. 42. There is however some difference about the date of his arrival. According to the defendant he also came on the 20th, but according to the plaintiff's case he came on the morning of the 21st. These two persons however according to themselves and the lady, took no part in the transaction and were simply watching events from a distance. Though they sent three telegrams to Mr. Ram Krishna Jha at Laheriaserai about the compromise he did not come. Later on, Ram Krishna Jha reached Monghyr on the 24th, saw the lady, but was annoyed and did not like to mix himself up with the compromise, or hear her explanations though he was willing to accept ₹ 20,000 in satisfaction of the money advanced by him for the litigation. 43. He stayed in the house for a few hours but had no talk, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petition for the payment of ₹ 1,000 for the sradh of her husband and that Suraj Mohan, and not the plaintiff, was made the owner of the estate. She was taken by surprise and sent for Dharam Narayan Chaudhury who had sometimes looked after her cases and who happened to be there at that time. She sent him to bring Ram Krishna Jha. The latter went to Allahabad with much difficulty on the persuasion of Mr. Murari Prasad, an Advocate of this Court and a witness in this case, who had worked in her cases. Ram Krishna Jha refused to help her and advised her to approach Babu Murari Prasad and Khan Bahadur Maulvi Sayeeduddin. 47. Dharam Narain also expressed his inability to do anything for her. The lady came to Benares on 15th February. There she learnt that Babu Murari Prasad was there, sent for him on 19th March 1925, and related to him all that had happened. At first he also was unwilling to help her, but ultimately agreed. On her instructions the petition under Section 151, Civil P.C., was prepared and filed before the Subordinate Judge of Monghyr. It is to be noted that the petition was signed by the lady on 2nd April, the affidavit in its support being sworn at Benares on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... major on 1st February 1924, and the fact was noted in the record of the case on the 5th of that month. 51. Bodh Krishna Jha again came to him on or about 30th March 1924, and suggested that a personal meeting between Suraj Mohan and the lady might smooth matters and finish the litigation. Suraj Mohan Thakur refused to go to Darbhanga where the lady was at the time, as his elder brother Raj Mohan Thakur (since dead) was not well received by Mr. Ram Krishna Jha. He however agreed to see the lady at Benares or at some other place of pilgrimage where the lady used to go. On or about 9th October 1924, Bodh Krishna Jha went to him for the third time and informed him that the lady was about to go to Simaria Ghat for Kartik asnan and that would be a suitable place for the interview. On or about 16th October 1924, Durga Nath came to him and informed him of the lady's arrival at Simaria Ghat and requested him to see her during her stay there. Later, on 12th"November, Madhu Kant Jha (brother of Raj Mohan Thakur's widow and the grand son-in-law of Durga Nath referred to above), who had gone to Simaria Ghat to see his father-in-law, Tek Nath Jha's mother in connexion with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of ₹ 100 was paid to Maulvi Sayeeduddin by the defendant at the instance of the plaintiff. On 20th November Bodh Krishna Jha on being sent for came to Monghyr. Ram Bahadur Singh also came on that very day and the two together began arranging for a draft of the petition of compromise. At this stage the plaintiff wanted some additional terms. They were: (1) house rent not exceeding ₹ 200 per month; (2) a conveyance for going to places of pilgrimage; (3) ₹ 17,000 out of the maintenance allowance to be paid in cash and the balance to be actually paid in instalments, and, (4) the costs of previous litigation to be borne by each party. Suraj Mohan at first objected to these terms, but as the lady insisted he yielded. Drafts were then prepared (according to the information of Suraj Mohan) by or in consultation with Maulvi Sayeeduddin. It was then approved of by Babu Bhairo Prasad, pleader for Savi, in the presence of Babu Hito Rai, another pleader for the plaintiff. 55. A copy of it was handed over to Balbhadra Thakur, a servant of the defendant to be shown to Mr. Savi. This copy has been filed in the proceedings as Annexure B to the objection of Suraj Mohan (Ex. F) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. The whole petition was read by her and also read over and explained to her by Ram Krishna Jha, and then she signed it after ₹ 20,000 was paid to her. This ₹ 20,000 consisted of ₹ 17,000 out of ₹ 1,17,000. the arrears of maintenance found due, up to October 1924, and ₹ 3,000 advance payment for the months of November and December 1924 and January 1925. The petition was then handed over to the Subordinate Judge who happened to be there and who again got it read over to the lady by Baiju Mandal and she admitted to him the due execution of it. 59. The Subordinate Judge finding that each page of the petition was not signed by the parties asked them to do so, and this was done. As it was understood that after the compromise, whenever the lady would not live at a place of pilgrimage, she would live at Anandgarh with the family of Suraj Mohan and his brother, the whole party came to Bhagalpur and the lady lived there with the family peacefully till she left for Allahabad on 10th. January 1925. In the interval she had gone to Kursaila and Kataria for Kosi bath. The evidence is that during the lady's stay at Anandgarh she met several persons and told th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mohan, having learnt of the lady's presence at Simaria Ghat, went there to make an attempt to settle a dispute which was apparently ruining the estate. Suraj Mohan was not then even 19 years old. He attained majority on 1st February 1924, and there being no guardian appointed by the Court, he did so at the age of 18 years. During his minority he must have been painfully watching the course of this expensive and ruinous litigation between himself and the wife of his uncle and benefactor. 64. The estate was highly encumbered, as will appear later. A large instalment was being paid to the Maharajadhiraja of Darbhanga towards the liquidation of his mortgage decree against the estate. This young lad must have been feeling grateful to the memory of his uncle who had left him his estate; he must have felt it a pity that his widow was practically living in exile, passing her days either at Darbhanga or at some places of pilgrimage. He was separated from the one whom it was his duty to serve. 65. The estate he got from his uncle was being wasted to no purpose. There would be nothing surprising if, realizing these things, he thought of meeting the lady at a place where she would be awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned to 16th of May. 68. It was ultimately heard on 21st and 22nd of that month, and judgment was pronounced on 4th June. It is alleged that during the course of the hearing on the 21st or 22nd May the learned Judges suggested that the amount of maintenance should be referred to arbitration, intimating that ₹ 1,000 per month, all arrears and a residence either in Anandgarh or Ganganivas, would be allowed to her. It is alleged that this incident took place in the presence of Mr. Jayaswal and Mr. Murari Prasad, Advocates for the lady, and that Mr. Murari Prasad conveyed this message to the lady, but that she refused this offer and wanted that her claim to the estate should also be referred to the arbitrators and considered by them. 69. Mr. Jayaswal also, it is said, sent a letter to this effect, to Mr. Ram Krishna Jha. An attempt was made to prove through Mr. Murari Prasad this alleged letter of Mr. Jayaswal to Mr. Ram Krishna Jha. The learned Subordinate Judge rightly disallowed this. The letter contained nothing but a statement of Mr. Jayaswal as to what according to him transpired before the learned Judges in this Court. If Mr. Murari Prasad was himself a witness, as he say ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon by the learned Subordinate Judge and is disputed by the defendant. Taking the evidence of Mr. Jayaswal now would have placed the respondent in a very false position. We do not for a moment suggest that Mr. Jayaswal would not have spoken the truth, but then he would be deposing to an incident which took place eight years back and after the details had been discussed in two Courts. 73. The respondent would have been handicapped in cross-examining him and thus attacking his evidence which he was certainly entitled to do. Beaman J.'s observations were no doubt on other points dissented from in the Calcutta High Court in the case of Weston v. Peary Mohan Dass AIR 1914 Cal 396 but not the observation which we have referred to above. There is another reason why we refused to examine Mr. Jayaswal as a Court witness. The plaintiff had plenty of opportunity to do so. On 21st December 1926, she applied to examine Mr. Jayaswal on commission. 74. At first the prayer was granted, but later, on the objection of the defendant the Court ordered that it would examine him in Court when he appeared. Mr. Jayaswal was apparently appearing for the lady off and on in the suit. After that no s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll her claims and contented herself with receiving a maintenance of ₹ 1,000 per month. 77. This is the main term. The rest are of minor importance; as, for instance, the term about house or conveyance or sradh and so forth, and except about the jewellery and gardens the difference in some of them is slight. The question resolves itself into the determination of the allegation of fraud made by the plaintiff against Suraj Mohan and his supporters. Is it true that Suraj Mohan originally agreed to terms as alleged by the plaintiff and then fraudulently put others into the petition of compromise and the plaintiff signed the petition on trust? It is true that the lady remained ignorant of the terms mentioned in the petition and for the first time came to know of them at Allahabad at the end of January of 1925? The petition (Ex. A) bears the lady's signature. She admits having signed it. Her endorsement runs thus: I have read over the contents of this petition and understood them. I have received ₹ 17,000 (seventeen thousand) in cash. It is correct. Srimati Savitri Thakurain. By my own pen. 78. She granted a receipt which is Ex. G. It says that she received from Suraj M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she said that there was nobody there excepting herself, Surja Mohan and the river Ganges. Later on a witness Rasdhari Kumar (P.W. 8) was produced to depose on this point. We shall deal with his evidence presently. But before we come to that, we have to make some general remarks. The line of attack taken by the plaintiff has been what may be called destructive, that is instead of producing good and sufficient evidence to prove the alleged terms, her main endeavour has been to attack the evidence of the defendant, and the whole contention of Sir Sultan Ahmad, who argued this part of the case before us, has been that the defendants have not been able to prove that the terms embodied in the petition were agreed to by the plaintiff and explained to her. 82. A new point about there being an honest mistake, which was neither taken in the petition nor discussed before the Court below, was advanced by Sir Sultan Ahmad. The argument was that the terms of the compromise as understood by the lady and the terms mentioned in the petition of compromise are so similar that while the plaintiff might have been under the impression that she was getting a life estate while Suraj Mohan was simply to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness, there is no harm in this giving evidence in a case in which he is appearing. The explanation therefore is unsatisfactory, and we agree with the learned Subordinate Judge that these two gentlemen ought not to have appeared in the case. Mr. Ram Krishna Jha however was more a party than an advocate. The plaintiff was his first cousin, and he had given her financial assistance in the case. If his interest in the case had the better of him than his duty as an advocate, one may perhaps regard him as a party at most and deal with him as such, but the position of Maulvi Sayeed-ud-din was different. In the application under Section 151, Civil P.C., it was clearly stated that the lady sent Durga Nath to Maulvi Sayeed-ud-din for the preparation of a draft of compromise, but later on she was informed that the draft was not settled by Maulvi Sayeed-ud-din. 87. This information, if there was any, could not have come in the last resort from anyone but Maulvi Sayeed-ud-din himself, He was, at any rate, the best person to know whether Durga Nath had got the draft settled by him or not. The point was also one of no small importance. This being the case, Maulvi Sayeed-ud-din should have at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit. This is worse than a half-truth. 91. It was apparently intended to convey that Babu Hito Rai was not authorized to compromise the suit but that some other pleader was so authorized. In fact however there was only one Vakalatnama in the case under which all the lawyers appearing in the case had authority to work, and this Vakalatnama gave all the pleaders power to act in the case with the exception that they were not authorized to compromise the suit or to refer it to arbitration. There was no distinction between Babu Hito Rai and Maulvi Sayeed-ud-din in this respect. Nor did Babu Hito Rai effect the compromise in the suit. 92. There is a world of difference between compromising a suit and signing a petition of compromise after the compromise is effected by a party himself and the petition is signed by him. We do not think that Babu Hito Rai by signing the petition of compromise when the compromise was arrived at by the lady herself and the petition was signed by her, did any improper act. However, this was one of the grounds on which the compromise decree was successfully challenged before Jwala Prasad and Bucknill, JJ., and one of the grounds on which their Lordships ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spectable persons without there being the least basis for any of them. In this case there is nothing but reckless accusations against others which on the slightest scrutiny of the record appear to be absolutely unfounded. We further find from the order sheet that Babu Hito Rai has been signing it on behalf of the plaintiff. 96. It is to be hoped that Babu Hito Rai was not aware of the fact that suggestions of his exceeding his authority and of his practising fraud were made against him by the plaintiff, for otherwise it is impossible to find any excuse for his working in the case afterwards, and I think the plaintiff practised a fraud upon this Court by suggesting that Babu Hito Rai was acting without authority. He was not alone in having no written authority to compromise, and he did not compromise the suit, and whatever he did in the suit seems to have been done with the consent of the plaintiff, or with implied, if not express, authority from her. In fact Mr. L.K. Jha, who argued the concluding stage of this appeal, expressly told us that she makes no charge of fraud or collusion against Babu Hito Rai at all. This makes one wonder how the charge or suggestion could ever have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven up the estate and accepted a maintenance. (After discussing evidence, the judgment proceeded). We have narrated the facts and analyzed the evidence of the incidents which took place at Simaria Ghat, Monghyr, Bhagalpur, Allahabad and Benares. We have read the evidence over and over again very carefully and we feel no hesitation in coming to the conclusion that the finding of the learned Subordinate Judge is perfectly correct and unassailable. 99. We hold that the terms of the compromise as contained in the petition were the terms which were willingly agreed to by the lady and that no fraud was practised upon her. We will later on deal with how far the defendants have proved the facts necessary to make the compromise binding upon the plaintiff who is a pardanashin lady. But before we leave this part of the case we have to make a general remark about the nature of the evidence adduced on behalf of the parties. The defendant, as we have already stated, has produced all the witnesses whom he could produce. Their evidence on the whole is true and consistent with the ordinary course of human affairs. It may be that here and there some of them have tried to prove too much, but the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, in the case of the will set up by the lady. It will be recalled that she attempted to obtain letters of administration of a will which was said to have been either lost or destroyed, and the basis of her application was a copy of the draft of the will. Therefore there was no necessity of proving the signature of the testator. In the course of the judgment the learned Judge observed as follows: There is one point which is noticeable in this narrative, namely that most of the incidents taken separately relate to one person at a time. The dictation is to Rasbehari when no one else is present. Ugrah Mohan's interview with Charu and the appointment made with him on the evening of 15th January is spoken to by Charu alone. The attestation necessarily takes place in the presence of two, namely of Sarat and Charu. Rasbehari was not then present. The conversation between the mother and the son takes place in the presence of Suraj Mohan Chaudhury alone. At the time Easbehari attested none else was present. 104. The same thing was repeated in this case. The scene is different and the actors are different, but the acting is the same and the stage manager is plainly the same--it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lakhbati AIR 1923 Pat 492, the rules laid down by the Courts of law for assisting them in determining whether a pardanashin lady understood the nature and effect of a document executed by her are rules of prudence rather than of law, and their application depends upon the particular facts of each case. 107. Each case has facts of its own, and considerations which may arise in one need not necessarily arise in another. This was clearly stated by their Lordships of the Judicial Committee in the case of Faridunnissa v. Mukhtar Ahmad. Lord Sumner in delivering the judgment of their Lordships observed as follows: The mere declaration by the settlor, subsequently made, that she had not understood what she was doing obviously is not in itself conclusive. It must be a question whether, having regard to the proved personality of the settlor the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settlor or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them. Of course fraud, dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed: Independent legal advice is not in itself essential .... After all, advice if given might have been bad advice .... The real point is that the disposition made must be substantially understood and must really be the mental act as its execution is the physical act of the person who makes it. It will thus appear that each case will have to be decided on its own merits and that the Court will have to be satisfied whether the act in question was the free act of the lady and whether she fully understood the effects and consequences of it. In the case of Sunitibala Debi v. Dhara Sundari Debi AIR 1919 PC 24, Lord Buck-master after referring to the terms of the compromise in question, which in his Lordship's opinion was simple and easily understandable, observed as follows: It is not necessary--indeed, it is undesirable--to insist in such cases upon a test which depends upon a clear understanding of each detail of a matter which may be greatly involved in legal technicalities. It is sufficient that the general result of the compromise should be understood, and that people disinterested and competent to give advice should, with a fair understanding of the whole matter, advise the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o fight a suit or deal with Court business A compromise by such a lady stands upon a different footing from one by a lady who is highly intelligent, literate and is in the habit of having direct communication with her legal advisers. 113. Let us now consider the position of the lady before us. In the case of Barkatunnissa Begum v. Debi Bakhsh, Sir John Wallis, after referring to some incidents in the life of the lady involved in that case, observed: This certainly suggests that she was a lad of strong personality and not at all likely to have left all her business in the hands of her servants, sign all the documents put before her without explanation and allowed them to do what they liked with the money paid to herself when the deeds were registered. This remark applies with even greater force to the plaintiff in the present case. At the time of the transaction she was middle aged. Her husband, who was an enlightened gentleman, had given her some education in Bengali, English and Hindi, and she know these languages to some extent. She admitted this in her evidence in the Calcutta will case. No doubt she now says that she forgot everything a few years after her husband's deat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she had been careful, while signing documents, to specify the purpose for which she was doing so. A number of vakalatnamas from her are on the record, and in almost every one of them she has clearly indicated the purpose for which she was engaging a lawyer. During her deposition there were occasions when she answered questions put in English before they were interpreted; and when her attention was drawn to this fact, she definitely stated that she knew a little of English. She used to consult lawyers herself from behind the pardah, to hear them, but convey her answers to them through an intermediary. 118. She knows the names of the lawyers who worked for her in Patna, Calcutta and Monghyr. Such is the lady who is said to have been imposed upon by a young lad who had attained his majority less than a year previously and with whom she had been fighting for many years past. Can it be said with any amount of reason that this youth was in a position to impose upon the lady or dominate her will? The signing of the petition of compromise and the receipt for ₹ 3,000 is admitted by her, but it is said that she signed them without knowing their contents and without their having been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her suit. That was simple enough. It was a maintenance of ₹ 1,000 per month, ₹ 17,000 in cash, a decree for ₹ 1,00,000 payable in instalments, a suitable house at places of pilgrimage on a monthly rent of ₹ 100 to ₹ 200 and a conveyance. For a lady with the capacity and experience described above there could clearly have been no difficulty in understanding these terms and comprehending what she was actually getting in lieu of the claims which she had made. Once we come to this conclusion, no other thing is really required to be proved. In fact there is a good deal of force in the contention of Mr. Manuk that the onus on the defendant has been discharged by the admitted and undisputed facts of the case if the story of fraud put forward by the plaintiff is disbelieved. 123. It is not her case that she entered into the compromise without understanding it. Her case is essentially either fraud or nothing. No doubt, in her petition under Section 151, Civil P.C., all possible attacks were made on this compromise. There was an allegation of fraud; there was a half-hearted suggestion of misunderstanding; there was an allegation that she was kept in a house su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this category) will not be given effect to unless the Courts are first satisfied that the mind accompanied the hand in the act of execution. In both the cases, namely when a person labouring under some deception caused by fraud executes a document believing that he is agreeing to one set of terms while the document contains another set of terms, and when a pardanashin lady does so without fully appreciating the full import of the document owing to her pardanashin character, the document is invalid on account of the fact that the physical act of execution is not accompanied by the mental act. 127. In one case there is the absence of a mental act corresponding to the physical act, because while the physical act is being performed in respect of one set of facts, the mind has before it quite a different set of facts. In the other there is an absence of a corresponding mental act on account of the deficiency in the intellectual capacity caused by the lady's life of seclusion. In the one case the party alleging fraud must prove it, by placing before the Court facts from which it can irresistibly be found. In the other the person who wants to take the benefit of the document must pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fraud or may indicate that she did not fully appreciate the terms. We will deal with this later. In this case the terms alleged by the lady are if anything, rather mere complicated than the terms contained in the petition of compromise. In the terms alleged by her, there is one, that Suraj Mohan is to manage the estate all along. 131. It could have been argued that it was necessary to explain to the lady the full import of that appointment and that she ought to have been told what would happen if he mismanaged the estate or did not make over the entire income to her. But the terms in the compromise petition are as we have said simple and required no particular explanation. However it was conceded by the defendant in the lower Court that the onus was upon him to prove that the lady signed the petition of compromise after understanding its full impart and Mr. Manuk who has argued the case on his behalf has maintained that he has discharged the onus upon him not only by proving the necessary facts from the admissions and statements of the lady herself but also by the evidence adduced on his behalf; and we desire to deal with the case from that standpoint also. 132. We have held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissal of the rest of her suit, it is clear that if the lady knew her suit and if she also knew what she was getting, she with her capacity and experience could not but have known what she was giving up. 135. It was therefore not necessary in the circumstances to give her any further explanation or warning about the rest of the suit. There is an overwhelming mass of satisfactory evidence, (in fact this is the evidence of every witness of the defendant) that what was compromised was the entire suit without any reservation. Even the lady does not say that it was not the whole suit that she compromised. The only difference between her case and that of the defendant is as to what she was to get in return for abandoning all her claims in the suit. So the question again resolves itself as we have said more than once, into the terms settled. Once we come to that conclusion, it follows that she knew that the rest of her claims was to be dismissed. 136. As to the second contention, namely that the charge to be decreed was not enforceable in execution, we will show later on that as a matter of fact the charge can under the law be enforced in execution of the decree which has been passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that the fair copy was read by her and also read to her by Ram Krishna Jha and again by Baiju Mandal in the presence of the Subordinate Judge. Whatever might be said about the reading of the petition by her or to her by other persons, there is no doubt that it was read over to her by Baiju Mandal and was heard by her--she was within hearing distance and was not really prevented by any noise or any mental disturbance from following it; and its contents were simple enough to be understood by her, and she must have understood them. 141. The next point is the question of independent advice. Now, as we have shown, independent advice is not always essential. As was pointed out by the Judicial Committee, the advice, if given might have been perverse or might really have been injurious to her interest. Nevertheless though there is no evidence that anybody advised her to compromise on these terms, there is the admission of the lady that her uncle Bidy Jha and her cousin Bodh Krishna Jha did advise her to compromise. These two could have had no motive for benefiting Suraj Mohan, and in fact no such motive has ever been suggested. As to the terms in our opinion the lady was quite compet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, and the terms of compromise were fully understood by her, and the terms in the petition were read by her and were also read to her. As we have said it is not necessary to notice the cases relied upon by the appellant. Almost all of them lay down that the burden is on the party, who wishes to enforce a document executed by a pardanashin lady, to prove that she understood and appreciated it. This is not disputed. The decisions are based upon the facts of those cases, for instance, in Kamawati v. Digbijai Singh: AIR 1922 PC 14 where a pardanashin lady who had inherited some properties from her mother's brother under the provisions of the Succession Act, relinquished her claim on acceptance of a monthly allowance of ₹ 50, the transaction was set aside mainly on the ground that the lady did not know the extent of the properties which she had inherited. We have already referred to the case of Faridunnissa v. Mukhtar Ahmad. 145. There also the question was whether the onus, which was undoubtedly upon the claimant, was sufficiently discharged. Two cases however require special notice one is a decision of the Calcutta High Court in the case of Tarubala Dasi v. Sourendra Nath M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of her father on her behalf in the presence of two witnesses and was presented by her to the Sub-Registrar, and she affixed her thumb-marks to it in his presence. There was no evidence at all that it was read over and explained to her, but there were circumstances, some of them subsequent to the transaction, which showed that she had fully understood it. The lady was accordingly held bound by it. In the present case the lady admitted before the Subordinate Judge having signed the petition of compromise, and it was made over to him in her presence. 148. It has been very strenuously contended that the compromise is unjust even if the lady agreed to it, and that it was an unconscionable bargain and an improvident act on her part, as she received very inadequate consideration for such an agreement and in fact got nothing for her personal properties in the suit such as the jewellery, gardens, etc., and got future maintenance and arrears, the house rent and conveyance, only in lieu of the estate of her husband, though she would have been entitled to maintenance in any event; and as even the maintenance given to her is very disproportionate to the income of the estate. The argument is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e set aside on the ground of fraud. 151. His Lordship observed: Sometimes also the Court proceeds to examine whether the plaintiffs claim was well-founded in law--an equally irrelevant inquiry. The proper method for a Court in approaching a case of this kind is to say to the plaintiff in effect: 'I will assume for the purposes of this case that the division effected by the compromise constitutes from your point of view a thoroughly bad bargain, otherwise you would not have attempted to get it sot aside, but you must proceed to establish, notwithstanding that assumption in your favour, that the compromise was induced by fraud.' The legal procedure for setting aside a compromise is not a procedure for setting aside a hard bargain. Ordinarily, as we have said, in a proceeding under Order 23, Rule 3 an inquiry into the merits of the suit itself is entirely irrelevant. To hold otherwise will create an absurd position: every party who wants to go back on a compromise lawfully entered into by him would ask, when the compromise is under inquiry, that the entire suit should be tried first before the compromise can be recorded. This will defeat the very object of Order 23, Rule 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er month for house rent during the period she may be away from Bhagalpur and a conveyance which would ordinarily cost about ₹ 100 per month, the total being ₹ 15,600 per annum. ₹ 1,000 per month, the maintenance itself, was to run from the time of her husband's death, and on the amount of arrears interest at 6 per cent per annum was to run. This was certainly a very heavy amount, and for a period for 14 years was beyond the capacity of an estate the net income of which (after deducting only the Government dues, etc.,) was about ₹ 65,000 annually, and which was indebted to the extent of ₹ 5,33,000 and was liable to pay a heavy probate duty. 155. Mr. Savi had estimated the net income, after paying interest only and without making any provision for payment of the principal, to be ₹ 26,000 per annum, and we think he was correct. The principal debt was ₹ 5,33,000 and if 14 years be taken to wipe off this principal as actually happened, there was hardly anything left for any other expenditure. The debt would not however have been cleared off in 14 years, had not money come from other sources. 156. Therefore a provision that the lady should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... husband's absence in England she got ₹ 25 per month for her pocket expenses. 159. Now let us see what was the maintenance of the other ladies of this family and its other branches. Jagbati, mother of Ugrah Mohan Thakur, got only ₹ 300 permonth. Sundermati, widow of Paran Mohan Thakur, the income of whose estate was larger than that of Ugrah Mohan Thakur, got only ₹ 500 per month (Ex. 1). To the widow of Sri Mohan Thakur, a member of another branch of this very family, an allowance of ₹ 200 per month was paid by the Court of Wards, though the income of the estate was ₹ 1,35,000 the estate being in debt. This is admitted by Badrinath Upadhyaya,a witness for the plaintiff. Let us consider the maintenance allowed to the widows of other families of equal or higher status. In the Banaili Raj a family of Maithil Brahmans with a very large income, the allowance to the widows was low. The income of one of these estates was ₹ 3,75,000, and the allowance to the widow was ₹ 300 per month (Ex. T), but, as appears from the evidence of Phanindra Nath Chatterji, this was gradually raised to ₹ 800 when her son died. 169. In another case of maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of succession is based upon her right to perform the funeral obsequies. The second passage relied upon, which occurs alter it is laid down that a faithful wife should take the wealth of her husband, runs thus: Taking his effects, moveable and immovable, the precious and base metals, the grains, liquids and clothes, let her cause several sradhs to be offered in each month, in the sixth month and at the close of the year. Here by the mention of the sradhs that a wife must perform, it is meant that she shall also perform the ton sradhs of her husband recently deceased, and also celebrate the obsequies annually, and take the whole estate of her lord. What has been said above is applicable in the case of a husband who has taken his share from his co-heirs. 163. These passages to our mind do not support the plaintiff's contention that a widow is entitled to get the costs of her husband's annual sradh from those who may have taken his estate. The last clause clearly shows that all the injunction about the performance of sradh apply only if the husband was separate from his co-heirs. If he was joint with them, the widow does not get anything and in that case no duty seems to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is directly in issue, and as it has not been fully argued before us, we do not propose to pursue this matter further. In the Allahabad case a widow was held to be entitled to maintenance from the adopted son from time of the death of her husband and was allowed the amount spent by her on funeral ceremonies and sradh which the adopted son was bound to perform. This case is of no help to the plaintiff. There the question was whether the widow was entitled to get a set off for the amount spent by her on ceremonies which it was the duty of the adopted son to perform. 167. In the Bombay case Chandavarkar, J., held that in the absence of the son, grandson or great-grandson, it was the duty of the widow to get the ceremonies performed, and that if the son was a minor, it was her duty to see that they are performed. This is quite a different thing from the plaintiff's contention that when the estate is in the possession of the nephew, she can get from him the expenses of the sradh. The defendant on the other hand contends that under the Hindu law a widow is not entitled to offer pindas to her husband though she may give charities or feed the Brahmins and the poor on the anniversary o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiff, but it is not unusual for people to acquire properties in the names of their wives as their benamidars. Ex. N series are accounts of the estate and show that the income from the gardens was entered in them. The lady herself in her deposition in the Calcutta will case stated that her husband sometimes used to give her the income of the gardens and sometimes not. She further said that he purchased the gardens for her. It is obvious therefore that the gardens were purchased from the funds of Ugrah Mohan Thakur. 171. Whether he purchased them for himself or for the plaintiff is quite a different matter. The evidence is not all available, and it is difficult to judge what would have been the result had the issues been directly tried in the suit itself. Coming to the jewellery, reliance has been placed upon the list of properties filed by Mr. Savi in the Bhagalpur probate case. There are about half a dozen articles in that list which seem to tally with the articles mentioned in the list given by the plaintiff in one of her schedules to the plaint; and in Mr. Savi's list they are described as belonging to "Mrs. Thakur." 172. Here again, as we have said, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a shebait did not appoint his or her successor and where there was no other provision for the appointment of shebait, the management of the endowed trust would revert to the heir of the founder. 175. A similar view seems to have been taken by the Judicial Committee in the case of Gossami Sri Gridhariji v. Romanlalji Gossami (26), where it was held that in the absence of any provision to the contrary the shebaitship went to the heir of the founder. The plaintiff can in no sense be said to be the heiress of the founder. No doubt it was held in the case of Panchanan Banerji: AIR1930Cal180 , that in order to succeed to the shebaitship it was not necessary to prove that the claimant was the heir of the founder; it was enough if he proved that he was the heir of the last shebait. But there the question was decided more on the construction of the will of the founder and that of the last shebait. The claim was however dismissed on other grounds. We will refer to this case later. 176. Coming to the question of the shebaitship of the trust created by Ugrah Mohan Thakur himself, the trust deed is before us. There the provision is that the shebaitship would go to his heir (waris). The word & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f it, very little chance of success as she made her charges against Tajeshwar Jha and Kishori Jha during her deposition for the Bhagalpur case and long before the decision of that case. 179. It was not a case of any fraud having been practised upon the Court nor of a fraud practised upon her, or coming to her knowledge, after the decision. If so, there is very little doubt that the plaintiff would not have been permitted to reopen the facts which were already decided in the probate case. The main contention before us has been about the effect of the will under the Mithila law. More than half of the arguments of both sides have been devoted to this part of the case. The plaintiff's case, as we have said, is that her right to the estate on the basis of the Mithila law was so very clear that she could not have compromised on the terms which have been put forward by the defendant. 180. Her case further is that at any rate those terms practically meant a confiscation of her estate, and that she was denuded of a very valuable estate in lieu of a very inadequate consideration of an insufficient maintenance. She urges that we should therefore not record the compromise. In our opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set of translators for one party differ from another set produced by the other party, but the two translators of one party sometimes differ from one another. 184. Not only this, but the translators, when under cross-examination, admitted a number of mistakes and at times took up a position which was manifestly untenable. No party relied upon Tagore's translation as it was admittedly unreliable. A portion of the book, as we have said, has been translated by Mr. Setlur in his Collection of Hindu Law Books on Inheritance. But unfortunately an important passage relied upon in this case had not been translated by him. The materials placed before us therefore are uncertain texts and inconsistent translations prepared for the parties by translators who at places admitted their mistakes. There is no reported decision on the point in question, nor any evidence to the effect that there was any instance in which such law was ever recognised by any Court or acted upon by anybody. 185. One should therefore not be surprised that this topic of the Hindu law was argued by the parties for a very large number of days. Can such a proposition of law be said to be so clear and so certain that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... da-Ratnakara, an earlier Mithila digest, and the Dvaita-Parisishta of Keshava Misra (grandson of Vachaspati Misra), or rather, that version of it which we owe to his pupil Kalyana Misra under the designation of Suslishta-Parisishta, Keshava Misra's own compilation being said to be unavailable. None of these works is self-contained; and it is an essential part of the appellant's argument that the Mithila School does proceed on such Mitakshara doctrines as that the son takes an interest in the family property by birth and that partition implies a pre-existing title, though it is not claimed that these doctrines are noticed in the authorities referred to. 189. It is therefore desirable to consider the position of the wife under the Mitakshara before turning to the Mithila authorities. Now, under the Mitakshara, a woman is by marriage transferred from her father's gotra to that of her husband, so much so that a married woman can have no other gotraja relations than those of husband: see Banerjee's Hindu Law of Marriage and Stridhana, Edn. 5, p. 506. By her marriage she becomes one with the husband, as is shown, among other things, by certain sutras (aphorisms), of Apa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, 115, a verse which will be found translated in Colebrooke's Mitakshara 1, 2, 8). Should the sons divide the family property among themselves after the death of the father, the mother is also entitled to an equal share under another verse of Yajnavalkya, 2, 123 (see Colebrooke 1, 7, 1). Although the wife thus does take an interest in her husband's property, it is held in the Mitakshara Schools, other than the Mithila School, that her ownership is not of an independent character, the Viramitrodaya (which is a special authority in the Benares School going so far as to say expressly that "her right is only fictional but not a real one," to adopt Mr. Golap Chandra Sarkar's translation at p. 165, (Ch. 3, Part 1, Section 13). 192. We have to examine the position of the wife in the Mithila School, but in the other Mitakshara Schools it is settled that she is not a coparcener of her husband. "When we speak," says Mr. Mayne in his Hindu Law, Section 269: of a Hindu joint family as constituting a coparcenary, we refer not to the entire number of persons who can trace from a common ancestor, and amongst whom no partition has ever taken place, we include onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Hindu family, there are ordinarily three rights vested in corparceners--the right of enjoyment, the right to call for partition, and the right to survivorship": See Naraganti Achammagaru v. Venkatachalapati Nayanivaru (1881) 4 Mad 250. 195. It is clear that the wife's interest in the family property does not under the Mitakshara include two of these three rights of a coparcener, and that though her right to maintenance (which is unquestionable) has sometimes been referred to her position as a co-sharer in a subordinate sense, the contention that she is a coparcener has been frequently raised but never accepted by the Courts: see such decisions as Ananda Bibee v. Nownit Lal (1882) 9 Cal 315, Jogdamba Koer v. Sey. of State (1889) 16 Cal 367, Punna Bibee v. Radha Kissen Das (1903) 31 Cal 476. It has been urged on behalf of the appellant that under the Mithila law the wife is entitled not only to receive a share when a partition does take place at the instance of others, but also to demand a partition herself; and reliance is placed in support of this contention primarily on a certain sentence from Vachaspati Misra's Vivada Chintamani, which is thus rendered by Tagore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that in translating a law-book like the Mitakshara Colebrooke had translated the words (na deyah), occurring in three successive sentences, by "should not be given" in the first and third and by "must not be given" in the second sentence. 198. It has also not been seriously contended by Mr. Jha that the original sentence is so framed as to begin by giving the view of the Vivada Chintamani and then to add that that is also the view of the Ratnakara. The only possible way, grammatically, of construing the sentence is to take it as expressing only that which Vachaspati Misra thinks is the view of the Ratnakara. The form of the sentence does not indicate whether Vachaspati Misra adopts that view as his own. It may be that the implication from the context is not so restricted, but it is equally possible, prima facie, that the particle 'tu', which has been rendered by 'however,' actually indicates a view contrary to that of Vachaspati Misra. 199. It is necessary for these reasons to examine closely what it is really that Vachaspati Misra himself held on the point. In doing so, we are at the outset confronted with the inherent improbability that V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso be matters for consideration. 202. Tagore's translation of the section on the "Ascertainment of Partition" and of other passages from the Vivada Chintamani is unfortunately so inadequate in places that both the parties have had translations specially prepared by pandits who were examined before commissioner. The evidence of these pandits runs to over 230 pages of the printed paper-books. This large volume is due in part, and only in part, to the fact that the witnesses were examined not in Court but before commissioners. It is also due in part to the fact that the witnesses not always unwillingly played the role not of mere translators but also of interpreters, and that too with not a few limitations which are apparent on the face of the record. 203. Pandit Ishwari Dutta Daurgadatta Shastri appellant's first translator, was Principal of the Dharma Samaj Sanskrit College. He has to admit that he has made no special study of the subject, so much so that he is unable to say if the Vivada Ratnakara is earlier than the Vivada Chintamani; the latter refers to the Ratnakara in the opening verses, but the pandit's learning does not enable him to say whether that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uite competent to answer such question. 205. As a layman he further claims to see little or no difference between the expressions "without their consent" and "contrary to their consent"--he thinks he has used "without" in the sense of "contrary"--though the correctness of his rendering of an important disputed passage turns on an appreciation of this and the connected point whether (vimati) is used by Vachaspati Misra in the sense of disagreement among certain persons or disagreement of another with them. These limitations do not however prevent the pandit from maintaining that Colebrcoke, Jolly, Golap Chandra Sarkar Sastri and Mr. (afterwards Mr. Justice) Digambar Chatterji, Gharpure and other translators of standing are all wrong because, forsooth, their renderings differ from what the witness, on an apparently ad hoc study of a few passages from the Vivada Chintamani, takes to be the view of Vachaspati Misra. 206. Professor Ramautar Sharma, Sahityacharya of the Patna College is the other translator put forward for the appellant. He is even more emphatic that all other translators, whatever their standing, are wrong, where they differ fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esitation in emphasizing that the term imports that of which the gift is void, but when asked if he knows that "void" is a legal term, he answers "may be; I am not a lawyer." The appellant's case on Hindu law was argued before us by Mr. L.K. Jha, Advocate, who is himself a Maithil Brahmin and whose knowledge of Sanskrit and of the Mithila authorities has been at the disposal of this Court in a number of reported Mithila decisions, out of which it will perhaps be sufficient to refer to Hitendra Singh v. Rameshwar Singh: AIR 1925 Pat 625. Mr. Jha was unable on one disputed point after another to support the translations of the appellant's pandits or to maintain that the two translations were consistent with each other. 209. He was however prevented by express instructions from conceding anything in connexion with these translations. This is why it became necessary to refer in some detail to the appellant's translator's qualifications and their limitations as indicated by the manner in which they have acquitted themselves in making and supporting the translations. It was urged that we should proceed on these translations after correcting the mista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot think that it will be fair to the appellant to proceed on Dr. Jha's translations. The translators were undoubtedly placed at some disadvantage by the uncertainties and imperfections of the texts. So far as is known, there are only two published editions of the Vivada Chintamani--one being the Calcutta edition of 1837, which was apparently used by Tagore and J.C. Ghose and in large measure also by Setlur, and the other a Bombay edition of 1898 printed and published by the proprietor of the Sri-Venketesvara Press. Both these are unscholarly editions; neither gives any apparatus criticus, nor any variae lectiones. Both moreover contain palpable misprints or inaccuracies. 213. The Calcutta edition, for instance, has (sthavare-pitih ) and (tadanumata) instead of (sthavare-piti) and (tadanumatam) on p. 37, and (patnyanamatyapeksha) and (bhagyantaranumatyapeksha) instead of (patnanumatyapeksha) and (bhagyantaranumatyapeksha) on p. 38. Similar inaccuracies of an obvious kind also occur in the Bombay edition, but it is unnecessary to give examples, because the appellant has relied on the Calcutta edition and, as the book is now rare, has put in a copy as an exhibit in the case. 214 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deed the cross examiner himself realized it--that in those contexts where a woman's (anvaya) is spoken of, the wife must necessarily be excluded. 217. A detailed treatment of the translator's evidence would take too long, especially as the record is very defective, owing to various reasons. According to the judgment of the lower Court, Dr. Anant Prasad Banerji, Shastri, was a third translator examined for the appellant. It is common ground before us that this is a mistake; but it must be observed that the evidence recorded by the commissioners is such that it would indeed be very difficult to follow it without assistance from some one with an adequate knowledge of Sanskrit. Confusion was also bound to result from the existence of so many discordant translations on the record. Further though the evidence before the commissioners covers Misaru Misra's Vivada Chandra, we are informed by the advocates that this digest of Mithila law was not properly before the Court, as it was only published for the first time in 1931 by Mr. Priyanath Mitra, one of the mofussil advocates in the case and as the original manuscript from the library of the Asiatic Society of Bengal, an extrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int right of the two in Vedio rights performable in the fire brought into being on those (various) occasions; and because of such Smriti texts as 'A rite laid down in the Smritis (is to be performed) in the nuptial fire,' (there is joint right of the two) in the Smriti rites, (and?) the avasathya and agnihotra sacrifices, such as are performable in the nuptial fire which is to be set up by both wife and husband. In the very same way there is their joint right in the fruits born of merit or sin because of the occurrence in that very section of a Vedic text like 'in heaven (the two) would commence an undying glory'; not however in such sacrifices on the regular altar and pious works of utility to others as are performable without such fires. There is certainly no possibility of the sentence meaning that there is no partition of property between them, because the text of Apastamba occurs in the section dealing with the sacrificial performances and also because it is followed (3) by the words 'from the nuptials indeed (is ordained their) association in rites; as also in the fruits of merit and demerit. (1) There is a pronoun "tau" (meaning "those two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible to accept the contention of the appellant that the Mitakshara negatives partition between husband and wife by taking all the five aphorisms of Apastamba's down to No. 20, while Vachaspati Misra holds that there can be partition between husband and wife by restricting the quotations from Apastamba to the first three aphorisms (from the 16th to the 18th) and interpreting them to be confined to sacrificial performances. 223. Another point that Mr. Jha has endeavoured to make on this part of Vachaspati Misra's comment is that because Vachaspati Misra says that there is no possibility of Apastamba's text meaning that there is no partition of property between husband and wife therefore according to that Mithila authority Apastamba himself provides for such partition between them. This contention must plainly be rejected; Vachaspati; Misra has said nothing of the kind, and it is one thing for a text not to forbid a partition and quite another positively to permit it. Pandit Ishwari Dutta Daurgadatti was apparently unable to see this elementary distinction, and reminds one of the way in which he treated the English expression "without their consent" as no diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a scholar, whichever of these the Professor claimed to be. The doubt or apprehension that is emphatically denied in the original is about the text meaning that there is no partition between them (dhanavibhagastu tayornasti.) Professor Sharma's translation would, moreover, make the rest of the comment (which will be immediately dealt with) entirely unnecessary and unintelligible, though this does not seem to have been put to him or to have struck him when he considered his translation as a whole. This is decisive of Mr. Jha's contention which was based on the maxim (apratishidham paramatamanumatam) "the opinion of another (book of authority) is accepted where it is not contradicted" (see Ghose's Hindu Law, p. 1033); Vachaspati Misra himself clearly did not apply the maxim here. 228. Vachaspati Misra's further comment on Yajnavalkya II. 52, up to the concluding sentence "(There is/There may be) partition, however, between husband and wife by reason of the text "wive's (shall/should) be made equal sharers"--so (says) the Ratnakara," may be thus rendered: "If (again it be said) that in the section on the wedded wife, there is ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adatti, and (2) "It is so on the ground of the natural sense of the context and the absence of prohibitory texts"--Professor Ramautar Sharma. At p. 430 of his evidence Professor Sharma says that "The translation of the word Nyayatvena would be "as it is a current saying", that his translation is free and not quite literal, and that in the context it could not be right to translate nyaya as "logical reasoning"; and the literal translation of the whole clause would, according to him, be "being a current saying, it could not supersede the text." 231. There is however no reference at all in the context to any current saying; what the author is dealing with is the (patnyadhikarana), Jaimini's discourse on the wedded wife, and the text that according to Vachaspati Misra cannot be superseded or over-ridden by it is the quotation which he has himself given us in part here, and fully as from Narada in the chapter on "non-payment of wages" though Tagore's translation at p. 92 fails to make it clear that the quotation from Narada really extends up to the point where Devala is mentioned. Pandit Ishwari Dutta Daurgadatti's rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this is the view of the Ratnakara. This interpretation is so untenable on the face of it that Mr. Jha, with all his respect for his old teacher the Professor who is now dead, was unable to support it. 234. How could anybody even be imagined to suggest that the patnyadhikarana lays down a prohibitory text against woman's capacity of holding wealth as the Professor's rendering would require us to do? The objector moreover expressly asserted in the beginning that the patnyadhikarana laid down the wife's ownership in wealth, so that it is impossible to conceive of Vachaspati Misra pointing out to him that it lays down no prohibitory text etc. The Professor's interpretation has the disadvantage also of ignoring the supposed objection based on the text of Narada. His rendering is further defective and irreconcilable with the structure of Vachaspati Misra's concluding sentence, in so far as it suggests, intentionally or otherwise, that it expresses the view of Vachaspati Misra himself. As has been already observed none of this comment of Vachaspati Misra's can be justified or even understood if the Professor's rendering of the earlier comment relating to Apast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rana. Such a view was in fact taken by Apararka in his commentary on Yajnavalkya 2. 52: (see pp. 654-5, Vol. 46 in the Poona Anandasrama Sanskrit series), though on other grounds. 238. This well-known commentator on Yajnavalkya says that the word (avibhakte) "while (the estate is) undivided" in the verse does not refer to husband and wife since there can be no division of wealth between them; for the wife as wife has ownership in the husband's wealth, so that it is impossible to divide the wealth that is common to them. He adds that Apastamba has for this very reason laid down that: there is no partition between husband and wife; for from the time of marriage they are united in religious ceremonies, likewise also as regards the rewards for works for which spiritual merit is acquired and with respect to the acquisition of property: If this be the view of Vachaspati Misra, his concluding sentence, on which the appellant's case rests, will have to be construed as follows: The Ratnakara, however holds that there may be partition between husband and wife on the basis of the text wives should be made equal sharers." The second word in this concluding sentence is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n expression of what was taken by Vachaspati Misra to be the view of the Ratnakara, would in effect be a statement of Vachaspati Misra's own position. His reference to the text from Narada would in that case be confined to showing that the premise from which the purva-pakshi started was entirely untenable; and Vachaspati Misra's conclusion would be not a negation in toto of the purva-pakshi's conclusion but an admission of it submodo. From this point of view the entire discussion on the verse about suretyship may be fairly summarised as follows: 242. Yajnavalkya's verse (II. 52) lays down that there cannot be suretyship etc., between husband and wife, inter alia, before partition. If this implies the possibility of a partition between husband and wife, Apastamba's text is not really opposed to it because it is confined to sacrificial performances. The patnyadhikarana (of Jaimini) shows that the wife has ownership over the husband's property, but this cannot give her a right to partition and prevail over a text (of Narada) which lays down that the wife--like the son and the slave--is not entitled to hold property on her own account. Even so, as the Ratnakara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith earlier in the same chapter of the Vivada Chintamani. For Vachaspati Misra's discussion of this full text, we must turn to his section on (Jivat-pitrika-vibhaga,) "partition during the life-time of the father": see pp. 228-30 of Tagore's translation. He there first deals with Yajnavalkya II. 114: when the father makes a partition, let him separate his sons (from himself) at his pleasure, and either (dismiss) the eldest with the largest share, or (if he choose) all may be equal sharers" (Colebrooke's Mitakshara I. 2. 1). His comment on this is that the father's "pleasure"--the "svechcha" of the verse--is in respect of his self-acquisitions. He goes on to quote from Vishnu, Manu and Brihaspati: (see Setlur p. 245, Tagore has failed to identify the last), and extends the father's pleasure to what Colebrooke called "ancestral" property recovered by the father by his own ability. 246. He then repeats the verse, Yajnayalkya II. 114. and says--in the words of Tagore at p, 230--that it: relates to property over which the father has full dominion, for it occurs under the subject of self-acquired property. Setlur has r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the wive's right unconditionally to demand a partition from the husband. What is recognized is a much conditioned obligation of the father which, according to the commentator, is restricted to his self-acquisitions. The obligation such as it is, may be taken to import? a corresponding right, but the right to receive a share in certain conditions cannot be looked upon as a right to demand a share where, as here, the conditions are not such as can be brought about by the demandant. A coparcener's right to demand partition, which is what the appellant seeks to establish from Yajnavalkya's quarter verse (which Mr. Jha would read as "wives shall be made equal sharers)," is manifestly a far higher right than Vachaspati Misra can be at all said to have read into Yajnavalkya II. 115. 250. Mr. Jha has argued that this treatment of Yajnavalkya's relates only to partition made during the lifetime of the father and that in such a context the wife's rights could only be discussed incidentally, while in the later section on Vibhaga-nirnaya, Vachaspati Misra had occasion to give his view of the full rights of the wife, as he has done by taking the second quarter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haspati Misra to mean that (subject to allowance for stridhan already received from the husband or the father-in-law) each wife was to get the same share as each of the sons. Taken by itself, the quarter-verse may mean that each wife was to have the same share as the husband, irrespective even of the existence of any sons, but this was not Yajnavalkya's meaning, nor is there any reason to think that it was taken to be so by Vachaspati Misra. Another possible meaning of the quarter-verse, if taken by itself, is that wives should have equal shares inter se, but this could not possibly have been intended in a context which has nothing to do with preference among wives. The very expression 'equal sharers' in Vibhaga-nirnaya thus involves a reference to other parts of the Vivada Chintamani, and cannot, without some definite reason, be so interpreted as to produce a conflict that no commentator of standing would have tolerated. The wife may thus some times get a share of her husband's self-acquisitions, according to Vachaspati Misra. 254. The property in suit is mostly ancestral, and it has therefore been also argued that though Vachaspati Misra has not expressly dealt w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m her husband, but may have Vibhaga--may be given a share--as laid down in a later verse of Yajnavalkya's. 257. This, however, is not a substantial difference. Vijnanesvara deals with Yajnavalkya's verses in the order shown by their numbers, and has thus to explain the word (avibhakte) in the suretyship verse (II. 52) before coming to Daya Vibhaga which begins with II. 114. Vachaspati Misra deals with II. 114 & 115 long before he comes to the suretyship verse in the last section of his. Chapter on Daya Vibhaga. His exposition of II. 115, like Vijnanesvara's, gives the wife a share in the conditions laid down by Yajnavalkya, and no more; and his concluding sentence on the suretyship verse is merely a summary reference to that exposition, coupled with a reference to the identical view of the Ratnakara. 258. Mr. Jha has, moreover not referred us to any passage in the Vivada Chintamani showing that according to this Mithila authority the wife has (as under the mitakshara) ownership in the property of the husband: on the contrary we are asked to believe that Vachaspati Misra deliberately stopped short of quoting the 19th sutra from Apastamba II. 6. 14, though this sutra wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lified right of partition. The appellant is not, in our opinion, entitled even with the assistance of the Mitakshara, so to read Vachaspati Misra's concluding sentence as to get rid of the conditions recognized by him, no less than by Vijnanesvara, in the comment on Yajnavalkya 2, 114 and 115. 261. As regards the form : it is a necessity of language, in speaking of a partition between two parties, to mention them together, and it is obvious that such mention does not necessarily imply that they had co-ordinate rights. It is in fact because the wife's right under the Mitakshara is not co-ordinate with that of the husband that though she may on occasion be given share, she is not entitled to claim partition; her dravya vibhaga does not, in spite of the use of the genitive, mean partition of wealth by her, in the Mitakshara on the suretyship verse II. 52, nor necessarily in ordinary parlance. Has Vachaspati Misra said anything to show that the wife's position in this respect in Mithila is at all different from her position under the Mitakshara? Mr. Jha has not been able to place his finger on any express statement in the Vivada Chintamani, nor is it pretended that his con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anesvara's introduction to Yajnavalkya II. 115 speaks of division at the pleasure of the father only, and this prevents the direct application of that verse to partition at the instance of the sons so as to entitle the mother to an equal share at such a partition. The principle can however be applied in such cases as Mr. Jha concedes, under the doctrine of (atidesa) extension by analogy, and this in substance is what was done in Laljeet Singh v. Rajcoomar Singh (1873) 12 Bom LR 373. Another indication in the same direction is furnished by Vijnanesvara's comment on the first half of Yajnavalkya II. 121, where he interprets the vibhagabhak as importing allotments to both parents when the sons divide from the father: (Vibhagabhak) what is distributed, is a distribution. The distribution is of (sic) the allotments of the father and mother. He shares that and so he is a vibhagabhak (who is entitled to a share in the distribution). In other words he obtains, after (the demise of) his parents, both their portions. as Gharpure puts it at p. 199, rendering the original more closely than Colebrooke I. 6. 2. This points to the allotment of a share to the mother even when the sons en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of a share to the mother; in fact he makes no comment on the word Vibhagabhak except that it means "is worthy of a share" (Setlur p. 261) or perhaps more accurately, "is entitled to a share". 267. But this does not affect the right of a son to claim partition of ancestral property, and it may be assumed that Vachaspati Misra did not differ from the Mitakshara as regards that right. If so, the line of reasoning adopted in Laljeet Singh's case (1873) 12 Bom LR 373 would be applicable, and the wife could, under the Vivada Chintamani also, be held entitled to a share in the event of her husband either choosing or being compelled by the sons, to make a partition of the ancestral property, even though, like Vijnanesvara, Vachaspati Misra takes Yajnavalkya II. 115 to apply to a division of the father's self-acquisitions only into equal shares. The son's right to claim a partition of the ancestral property and the wife's right to a share on such a partition has not, we are informed by Mr. Jha, been disputed in any Mithila case, and seems to have been freely conceded in Krishna Lal Jha v. Nandeshwar Jha: AIR1918Pat91 . 268. But does this go beyond s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection of the Vivada Chintamani, even though that section is not confined to woman's peculium but extends to (bhartri-daya) a word interpreted by Vachaspati Misra not in the ordinary sense of "husband's heritage" but in the wider sense of "husband's wealth" whether devolving on the wife by inheritance, or coming to her by gift inter vivos. 271. When Mr. Jha could not find any passage in the Vivada Chintamani dealing with the wife's right in the husband's lifetime to a share in the ancestral property, and could not point to any substantial difference in respect of such a right between the treatment of Yajnavalkya's verses by Vachaspati Misra and Vijnanesvara, he laid stress on the fact that the wife is said as a result of the marriage to be born into the husband's gotra, and on the further fact that Narada's verse in Vachaspati Misra's comment on Yajnavalkya's suretyship verse places the wife on the same footing as the son. Vachaspati Misra however is not alone in introducing such a text, for in his comment on Yajnavalkya II, 49, Vijnanesvara notices the corresponding verse from Manu, VIII, 416, making the following commen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned right to a share in the ancestral property when a son obtains partition from the father should not be derived by (atidesa), analogy, from the provisions of Yajnavalkya II. 114-5 under the Vivada Chintamani as under the Mitakshara in Laljeet's case (1873) 12 BLR 373. The wife's position in respect of ancestral property under the Vibhaga Nirnaya passage of Vachaspati Misra does not seem to us any better than under the Mitakshara. 274. Vachaspati Misra's concluding sentence in the comment on Yajnavalkya's suretyship verse, as has been already observed, is in form a statement of what he took to be the view of the Ratnakara, another leading authority in the Mithila School. The view actually taken in the Ratnakara is specially important in this connexion because the appellant, as has been already indicated, can only take advantage of Vachaspati Misra's sentence on the footing that his view was the same as that of the Ratnakara. Sarkar and Chatterjee have rendered the relevant part of the comment of the Ratnakara on Yajnavalkya's suretyship verse as follows: Although Apastamba says that there is no partition between husband and wife, still, because in some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is also the law in the other Mitakshara Schools. 277. Vachaspati Misra has, perhaps, put this most pointedly not in the section on partition during the life-time of the father, though he has occasion to mention it more than once in this section (see Tagore, pp. 232 and 239), but in the section on Succession in default of a Son, where immediately after quoting Balarupa on the text of Harita, he comments: When the husband dies without partition with his co-heirs, he has no share at all; what then could his wife receive? It cannot be argued that she is entitled to a share like her husband, because there is no authority for this; nor should it be argued that the preceding texts are authority for her receiving a share, because they merely allude to the separate property of her husband": (Tagore, p. 291.) 278. Mr. Jha has argued that this does not affect the position contended for by him that the wife is a co-owner with the husband. The interest he contends for to meet the point under discussion is the interest of the wife while she continues to be a wife, an interest which ceases on the death of the husband. This is not unintelligible, but such an interest is only a hypothetic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man's rights not only over stridhan, moveable or immovable but also over her husband's property which becomes hers on the death of the husband in default of other heirs-(Setlur, p. 256). 281. He quotes a verse which is thus rendered by Tagore (p. 261): Katyayana says, that a woman, on the death of her husband, may enjoy his estate according to her pleasure; but in his life-time she should carefully preserve it. If he leave no estate, let her remain with his family. Setlur's translation of the same verse (p. 256) is: Whatever was given by the husband, a woman may enjoy as she pleases when he is dead; but when he is alive, let her preserve it or reside in the family (of the husband). The discrepancy in these translations is partly due to the fact that the original for Tagore's 'his (i.e., the husband's) estate' and Setlur's 'whatever was given by the husband is (bhartri-daya), which Vachaspati Misra expressly interprets as the husband's wealth, whether devolving on the wife, on his death, in default of other heirs, or whether becoming her property with his permission, or as Tagore has put it, "enjoyed" by her with his consent, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her to be compensated with the adhivedanika fee. There is however no trace of any such right in Vachaspati's entire treatment of stridhan. The respondent's argument is of course negative. While therefore too much stress must not be laid on it, we may observe that the comment on the word "avibhakte" in Yajnavalkya's suretyship verse is plainly much less suitable an occasion for dealing with the wife's right contended for on behalf of the appellant than is furnished, though not availed of, by Vachaspati. Misra's treatment of the (adhivedanika and bhartri-daya) in the section on stridhan. 285. How is the matter regarded by the other Mithila authorities placed before us? It has been shown already that the comment of the Ratnakara on the suretyship verse leaves no doubt that Chandesvara Thakur read no more into the word "avibhakte" than is to be found in Yajnavalkya II, 115., that is to say, that he did not consider that the wife was unconditionally entitled to claim partition herself from the husband. The Dvaita Parisishta, as edited by Keshava Misra's pupil Kalyana Misra, deals with the suretyship verse on p. 39. This author also propounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to accept the appellant's contention that a wife in the Mithila school is entitled as a matter of right to demand partition from her husband at her own discretion. The other passages from the Vivada Chintamani relied on by the appellant occur in the chapter on "Subtraction of what has been given"-(Tagore, p. 72). The dispute between the parties will be rendered clearer if the whole context is considered. Vachaspati Misra begins the Chapter by quoting three verses of Narada, IV. 1 to 3, which have been translated by Dr. Jolly in Max Muller's Sacred Books of the East, Vol. 33, at p. 128 as follows: Where a man wishes to resume what he has given, because it has been unduly given by him, it is called 'Resumption of Gift' a title of law. What may be given (a) and what not; (b) valid gifts; (c) and invalid gifts; (d) thus the law of gift is declared fourfold in judicial affairs. Again, what may not be given (b) is eightfold, what may be given is of one kind only; of valid gifts (c) there are seven species, and sixteen sorts of invalid gifts (d). 289. Vachaspati Misra's comment on these verses is-- The 'undue' character of a gift (may arise) eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stinction is made between a son and a wife on the one hand and (sarvasva), "the entire wealth," and (pratishruta), "what has been promised," on the other, which however is ignored in the summary at the end and is perhaps not very clear, but seems to imply that apart from the texts the donor is independent (svatantra) in regard to the sarvasva and the pratishruta only, but that as regards the son and the wife, their consent is a factor to be taken into account. 291. The summary also leaves out one of the eight adeyas given in the versa, namely joint property which is dealt with in the beginning. The Bombay reading of this passage is only a little better, but contains a palpable mistake (putradaradisarvasvapratishruteshu), instead of (putradarasarvasvapratishruleshu), which has been already referred to and which will have to be referred to again. The word (anvaya) has been left untranslated in the above passage; it has been the subject of much dispute, as will be seen later. Briefly, the appellant would take it to mean "heirs including the wife" while the contention of the respondent is that it means "issue" or "offspring" and can in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving quoted near the beginning of the chapter a verse of Narada's in which it was said that what may not be given is eight-fold, Vachaspati Misra's first comment on these varses is directed to showing that though the things mentioned in these verses in fact seem to number nine, the number must be taken to be eight. The comment is: Son and wife are here included in one compound and thus form one single predicable; (and) from this unity (of the two) the eightfold character (of things that may not be given still remains). 294. Then comes the following comment, including a quotation from Katyayana: The meaning is that even in a time of distress, a son, a wife, and the entire estate may not be given without the consent of (the anvaya namely, the son, the wife and the like/The son, the wife and the like, and the anvaya). (But) Katyayana says that with their consent (the former) may be given: (These) should not be subjected either to a sale or to a gift, (if they be) unwilling -a wife and a son; as to (a) the entire estate, it should be applied to one's own use only. In a time of distress however a gift or a sale may certainly be made; one should not act otherwise. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ati Misra has in fact interpreted the texts to mean that the wife's consent is essential and taken that to be the law in Mithila notwithstanding what he states to be the view of the Smritisara. 297. It will be observed that Brihaspati, who is first quoted in the adeya section, mentions sarvasva sans phrase among the eight things that may not be given. In the earlier part of his comment on. Brihaspati's verse Vachaspati Misra introduces the qualification that sarvasva is not to be given by one who has any anvaya. The next text quoted by Vachaspati Misra is Narada's which lays down that sarvasva may not be given if there be any anvaya; Dr. Jolly has rendered this by saying that "the whole property of one who has offspring is inalienable." Vachaspati Misra says that the meaning of Narada's verses is that even in a time of distress a son, a wife and the entire estate may not be given, without the consent of certain persons-who these are is in controversy-and heat once proceeds to quote Katyayana for the purpose of showing that with the consent of those persons, a son, a wife and the entire estate may be given. 298. Whether Katyayana's verses quoted by Va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own way such conflicts as he chose to notice in those Smritis or others. 300. But it was out of the question for him to differ from any of them. Katyayana, as a matter of fact, says nothing about the anvaya, but Vachaspati Misra himself has already introduced anvaya in his comment on Brihaspati, in view (doubtless) of the text of Narada and possibly other Smritis (e.g. Yajnavalkya II. 175), and in the comment on Narada he adopted the interpretation that the consent of the anvaya is necessary. Mr. Jha's contention on this point must therefore be rejected; it is entirely inconsistent with the views so emphatically expressed just before and just after the quotation from Katyayana. 301. We thus come to the question, who, according to Vachaspati Misra, are the persons, with whose consent a son, a wife and the entire estate may be given, but without whose consent they may not be given? It is to be noticed in the first place that Vachaspati Misra's comment just before and after the quotation from Katyayana makes it clear that he used the expressions vimatau, "without (their) consent,' and sammatau (or anumatau)," with (their) consent," as contradictory and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antive to which it refers. But when the substantive qualified includes words of several genders, the rule is that the adjective must agree with them in their combined number, and that as regards gender, the adjective must be masculine if the words qualified be some of them masculine and some feminine, and neuter if they be some of them masculine or feminine and the rest neuter. In accordance with this rule, the first predicate (na) neyah will go with the wife and the son as the subject of the first sentence. It is however possible as a matter of Sanskrit grammar to read the predicate (na) neyah with the word sarvasvam-taking it as in the nominative case-by the linga-viparinama process (see for easy reference Apte's Sanskrit Guide, Sections 21.22). 304. But the adjective anichchavah cannot, even with a not impossible modification of gender and number, be read with sarvasva because in the nature of things there can be no question of the consent or want of consent of sarvasva to its sale or gift. In his Digest of Hindu law (Book 2, Ch. 4, Section 1, verse 7) Colebrooke gives the following rendering of Katyayana's verse: A wife or a son, or the whole of a man's estate, sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich indeed led to the quotation from Katyayana. The first part of this later comment is that in the absence of the consent of those three, these three should be enjoyed by one's own self. 307. The demonstrative pronouns "those" and "these" in Sanskrit, as in English and other languages (such as Persian), refer to objects regarded as distant or near respectively. "These three," it is common ground, are the wife, the son and the sarvasva; and they are mentioned one after another in the second half of Katyayana's first verse. One would, therefore, naturally look for "those three" to something earlier in the passage. The first half of the verse mentions no persons at all, and it would thus appear that the reference was to the putradaradyanvayanam found near the beginning of Vachaspati Misra's comment on the adeya character of putradarasarvasva. The appellant would take "those three" to mean the wife, the son and the donor himself, or, according to the looser order adopted by Professor Sharma "one self (i.e. donor), wife and son." But the donor himself is only mentioned in the last quarter of Katayayana's first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain persons or bodies of persons, putradaradyanvayanam, but may be given with their consent. In support of the latter position he cites Katyayana, and then continues that without the consent of "those three" these three" should be enjoyed by one's own self, but that with their consent, there may be a gift. According to the appellant the expression putradaradyanvayanam means "of the anvayas, namely, the son, the wife and the like": the compound (samasa) being the appositional karmadharaya, and not the copulative dvandva, and anvaya, the last member of the compound being qualified by the adjectival putradardi which itself would be taken as a bahuvrihi. (Adi means the beginning, and putradaradi, construed as a bahuvrihi, would mean 'at the beginning of which are the son and the wife,' 'headed by the son and wife.' The karmadharaya would thus mean the anvayas 'headed by the son and wife,' but Mr. Jha prefers the rendering 'the anvayas, namely, the son, the wife and the like'). According to the respondent, however the word putradaradyanvayanam is probably a misprint or an inaccuracy in the manuscript used for the Calcutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be corrected according to grammar and sense, but it is a recognized principle that efforts ought to be made to interpret the texts as far as possible according to the readings actually found, and that caution should be exercised in correcting such readings. 313. It is convenient however to deal first with the emendation adopted by the respondent's pandits. They would read the word as putradaranvayanam; and if that be the correct reading, it is beyond question that the sentence would mean that the son, wife and sarvasva are, even in a time of distress, not to be given away without the consent, respectively, of the son, the wife and the relations included in the term anvaya. It is true that whether or not we leave the word adi out of the compound putradaradyanvayanam, there would be nothing in the sentence directly to show that it is the consent or want of consent of the three entities putra-the son, dara--the wife, and the anvaya respectively that bears on the gift of the son, the wife and the sarvasva. But it is a rule that things named in order should be referred respectively to terms placed in similar order; as in the example, he cuts a Dhava, and a C' hadira tree, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aya, the same is prohibited even in dire distress, by the text "in a time of distress (gift and the like) however may certainly be made," gift and the like should be understood to be, in the case of the wife and son, with their consent, and in the case of sarvasva, with the consent (2) of the anvaya; there can be no gift and the like of unwilling wife and son, nor of the sarvasva without the consent of the anvaya (3) thus there is no inconsistency. (1) This apparently refers to a quotation from Daksha, which however omits the son. Narada IV. 4 and 5 and Yajnavalkya II. 175 are quoted before Daksha. (2) Sammatimadaya. (3) Ananumatya. This also, as far as it goes shows that it was the consent of the anvaya only that was considered essential to the gift of the sarvasva, and that to the gift of the son and wife their consent only was considered essential. 316. Much the same considerations would apply even if the correct reading of the compound be taken to be putradaradyanvayanam. According to the respondent's contentions, even on this reading the compound would be a dvandva and it would be the consent of the son that would be essential to the gift of the son, the conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... faintly suggested for the appellant that with the adi the yathasankhya rule would be difficult to apply. 318. But the difficulty suggested only was that the dvandva way of dissolving the compound involved a tautology on the ground that a son must in any view of the matter be included in the anvaya. There is however no substance in this; if the consent of three bodies of persons required to the gift of three things respectively it is by no means necessary in logic that the three bodies should be mutually exclusive. As has been already observed in dealing with the readings that the respondent's pandits would prefer, there are other passages in Vachaspati Misra's comment both before and after the disputed expression putradaradyanvayanam, which suggest that the consent of the three-the putra, an individual, and daradi (if that be correct reading) and anvaya, two bodies of persons-to be taken distributively in regard to the gift or sale of the son, the wife and the sarvasva. 319. The appellant's reason for pressing the view that the disputed compound is a karmadharaya and not a dvandva is the difficulty of otherwise establishing the inclusion of the wife in the anvaya. Nei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at according to a passage from Medhatithi's commentary on Manu VIII. 46 (Gharpure's number is. 47) which was put to Dr. Jha by one of appellant's advocates below, kula which is given in the Amarakosha as a synonym along with gotra of vansa and anvaya, means a part of the gotra, that there is a controversy regarding the fictional gotra of the wife after her death-see the Mitakshara on Yajnavalkya I. 254, and that the fictional birth of the wife into her husband's gotra does not seem to have taken by any vyavahara authority to place her on the same footing as her husband's santati, another synonym for vansha. 322. In his commentary on Kalidasa's Raghuvansa. I. 4, Mallinatha defines vansha as i.e., a line of descendants - santana marked by unity on account of birth; and Stenzler in his Latin translation of that classical work of Kalidasa (published by John Murray, London, 1832) renders the word vansha by stirps; This may be compared with the Sabdakalpadruma, a well-known Sanskrit lexicon prepared at the instance of Raja Radha Kant Deb of Calcutta towards the end of the last century, in which the word anvaya is said to mean the son, the grandson and others born ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he last two examples, a given descendant has been called an anvaya, but this will not make the word anvaya before us quite intelligible if it is to consist of or denote the son, the wife and others of a like character. Even with her change of gotra, the wife is not placed on the same footing as a son, it would be absurd to regard her as a descendant of the husband. In Kalidas's Sakuntala, Dushyanta, a descendant of Puru, refers to a child as belonging to the same anvaya as himself on hearing that the boy was a descendant of Puru. Without elaborating the point any further, it seems safe on these references, including the dictionaries, to say the word anvaya is not usually employed to denote an individual and that its ordinary meaning is race or lineage, or also as subsequent quotations will show, the body of relatives called descendants, issue, progeny. 325. In the context before us, the word is plainly used not in the abstract sense of vansha, but in the sense of descendants which is derived from it by a natural transition and is found in the dictionaries as a matter of actual usage. The question then is whether in the sentence about the adeya character of the sarvasva the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the issue succeeds in their default" - see Colebrooke's Mitakshara, I. 3. 12. This was in answer to the question "who takes the residua of the mother's goods if there be no daughter." The Mitakshara here explains anvaya by putradih which Colebrooke takes to mean "the son or other male offspring." Visvarupa makes it sons only (see Ghose Vol. 2, p. 21). The context of course excludes the possibility of the word anvaya including the wife, but such interpretations are in accordance with Amarasinh's synonym santati, or santana. 328. This verse is also quoted by Vachaspati Misra in his section on succession to a woman's separate property, and his comment on the word anvaya which comment is ignored by Tagore altogether though he translates the word by "issue": (see p. 268), is that it means the granddaughter and the grandsons, according to the text of Manu: (see Setlur, p. 258). The word anvaya is also found in another verse, Narada XIII. 2, quoted by Vachaspati Misra in his first section in the Ghapter on partition. The Calcutta edition contains one obvious misprint in this verse - the long u of the second word being printed as shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo verses are quoted under Tagore's heading "of a coheir" in which the expressions tadvanshasya and tadanvayasya occur; these are rendered by Tagore (p. 241) as "(of) his male descendants" and "(of) his lineal descendants," Setlur Tendering both vansa and anvaya by progeny. Much reliance has been placed by Mr. Jha on Vachaspati Misra's comment (along with its sequel) on a verse of Katyayana's in the section on "Succession to property of re-united parceners"-(Tagore, p. 307, and Setlur, p. 273). 331. The verse is thus translated by Colebrooke in his digest Book V. Ch. 8, Section 1, verse 427: on failure of nearer claimants, re-united brothers must be considered as heirs of those who are re-united and disunited brothers of those who are disunited; (for) they reciprocally share (the estates) if they have no progeny. Neither Tagore nor Setlur has rendered Vachaspati Misra's comment on the verse at all closely, and the attempt of the appellant to get a translation of it from Dr. Jha in his cross-examination was not very successful. That comment seems to be as follows: He (Katyayana) qualifies by "nirbija etc." the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s text is thus rendered by Colebrooke "or the widow of a childless man: and she may either remain chaste, or may seek offspring," the last word "offspring" being the rendering of bija in the original. 333. Several other passages have been referred to on behalf of the appellant in order to make out a case for the inclusion of the wife in the term anvaya. It does not however appear that they really go far towards establishing the contention. There is, for instance, a verse from Manu VIII.198 which Vachaspati Misra has quoted both in the Chapter on "Sale Without Ownership" and in the chapter on "Women and Other Matters,'" where Tagore has put in a heading "Gift or Sale without Ownership," which does not occur either in the Calcutta or in the Bombay edition, (Tagore, pp. 56 and 222). In the later chapter the Calcutta edition prints the word on which reliance is placed by the appellant as svanvaya but in the Chapter on "Sale with out Ownership" both the Calcutta and the Bombay editions print the word as sanvaya. The Ratnakara (p. 103) reads svanvaya. In Manu the word appears as sanvaya, and Dr. Buhler translates it as &q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... twice-born man who does not study the vedas but applies himself to other (and wordly) studies soon falls to the condition of a sudra with his anvaya. Dr. Buhler at p. 61 translates the word sanvaya by "descendants" Kulluka renders sanvayan by putrapautradisahitah, with his son, grandson and the like,' and if this be somewhat vague, Medhatithi renders it by the expression putrapautradisantatya saha "with his progeny (santati) headed by the son and the grandson." The explanation given by these commentators in this contest seems to exclude the wife from the denotation of the term anvaya used as a collective noun, the use with which we are concerned. 336. We have not been referred to any context with the word anvaya in it which is more helpful in interpreting the same word in sarvasvam chanvaye sati. Reference was also made to the interpretation by the commentators Medhatithi and Kulluka of the word kula in such verses of Manu as II. 184, VII. 9, VIII. 46 and IX. 7. The last two however are plainly against the appellant-the "first makes kula a part of the gotra, and the second by the context excludes the wife and also the issue from the kula. In the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to, says that the plural (vibhajatam) in Yajnavalkya II. 123 was (avivakshita). The reason is that the Smritis must be taken as they are while the commentators have to make the texts applicable to all manner of changed conditions. That principle however cannot apply to the comments of the author of the Vivada Chintamani, who cannot be lightly assumed to have used a plural where a singular would have been quite sufficient. 339. Other reasons for regarding the compound as a dvandva instead of a karmadharaya have already been given and no reason has been shown to us why the yathasankhya principle of interpretation should not apply in the context. The plural ending of the compound is, thus, another reason for holding that the compound is a dvandva, and not a karmadharaya, and that the comment means that what is necessary to the gift of a son, a wife and the sarvasva is the consent, respectively, of the son, the wife and the like, and the anvaya. If the adi after the dare be really a misprint or an inaccuracy in the manuscript, the vagueness introduced by that word in connexion with the consent necessary to the gift of the wife will disappear; but the term anvaya is itself vague ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The reading in the Calcutta edition may be closely rendered as follows: Except however (1) the whole estate and the dwelling house, what remains after the maintenance of the family - the wealth which is (self-acquired/one's own) may be given; that may not be given which is other than this. Then comes the comment: Even (out of) what is one's own, that, which is in excess (i.e., of the maintenance of the family) may be given. In giving what is not in excess, (one incurs) sin; but as regards that which is in excess, (one obtains) merit. Here, as (the text is) that "donor's religious merit will otherwise be... (2) (scil. When that is given away which is not in excess of the maintenance of the family), it is not only that there is no acquisition of merit on the ground the that is not done which is ordained, but sin is) also (incurred) for doing that which is forbidden. Nevertheless the gift does take effect, as there is sufficient reason seen (for it, viz., in the title of the donor). (1) 'tu' in the original. (2) Last quarter of Brihaspati's verse quoted above. 343. All this comment is found in what appear from the Calcutta edition to be two sentence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dayo' nvayagatam, regarding the interpretation of which the parties are not agreed as shown by the alternative renderings given above according to the appellant and the respondent respectively. Vachaspati Misra's next sentence in the Calcutta edition is: (All) this (is) by way of illustration. (The gist is) that whatever becomes one's own in any manner whatsoever, (if) not owned in common with, others, (may be given) simply at one's own pleasure, but (if) owned in common with others, may be given when consented to by them. Property inherited from an ancestor, (1) though immovable, must (in the above reference be) undivided. The comment continues: For it is said: When however a marriage gift, or inherited property, (2) or what has been obtained by valour, is given with the assent of the wife, kinsmen, or supreme ruler, the gift acquires validity-(Dr. Jolly's translation of Brihaspati XV. 6 at pp. 342-3 loc. cit. 345. Vachaspati Misra then begins his comment on this verse of Brihaspati as follows: Marriage gift (3) (means that) which is received at (the time of) marriage for use by the bride; it is only when such property is being given away by the husband t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quot; Yajnavalkya II. 118 the word dravya is used for the word "estate" in Colebrooke's rendering (I, 4. 1) "whatever else is required by a coparcener himself, without detriment to the father's estate..."; and in the next verse the "hereditary property" of the translation is kramadabhyagatam dravyam. The Mitakshara comment on Yajnavalkya's suretyship verse, which has been quoted already, speaks of dravya-vibhaga irrespective of whether the property is moveable or otherwise. The word is similarly used in the opening verse in the present Chapter on gifts. 348. It is not necessary to labour the point any further; to restrict the word to moveable property is to disregard well-known passages from the Mitakshara and treat with indifference the logic of the verse. It is also impossible for similar reasons to attach much importance to the appellant's contention that svaka in the verse means not merely "one's own," which would be expressed by sva without the addition of ka, but "acquired by one-self." Pandit Ishwari Dutt went the length of suggesting that metrical exigencies might have led Katyayana to use svaka instea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Another point that has been disputed in connexion with this verse is whether it is correctly read with sarvasva as a member of a compound ending with variant or varjjam, (meaning, except), or as a noun in the nominative case, in the form sarvasvam, so as to be the subject of the sentence. The Calcutta edition gives the former reading, and this is also found in the Smriti Chandrika. The Bombay edition and the Vivada Ratnakara give the other reading, which is also found at p. 149 of the Vivadarna-vasetu, p. 144 of Hemadiri's ChaturvargaChintamani and p. 255 of the Parasaramadhava in the Bibliotheca Indica Series. If we take the reading of the Calcutta edition of the Vivada Chintamani, a man may give away whatever is his own with three exceptions: (1) the entire property (2) the house and (3) whatever is necessary for the maintenance of the family, though the last item is not expressed in the form of an exception like the other two which are governed by the ending varjjam. 352. The difficulty that arises on this reading is that if the house is not to be given away, and if further a man must not part with whatever may be necessary for the maintenance of the family, there seems li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w and how much the view of Vachaspati Misra himself. At the same time, there is nothing in the passage as printed in the Calcutta edition (or in the Bombay edition either) to indicate that Vachaspati Misra was here giving expression to a view in which he did not himself concur. It will be seen later, when we come to Brihaspati, XV. 7 or XXV. 93, that he apparently adopted the factum valet view in the present comment for himself: the gift does take effect and cannot be resumed 355. The words, moreover, that intervene between the mention of the Smritisara and that of Brihaspati can only be taken as Vachaspati Misra's own comment: "As to consent, that is necessary only in the case of what is joint and not what is not joint." This passage will have to be referred to again when we deal with the quotation dampatyor madhyagam dhanam from the SraddhaViveka, because here too we have the word madhyaga which has been translated as "joint." Much stress was laid on behalf of the appellant on Vachaspati Misra's comment on the verse from Manu, dayo' nvayagatam. The appellant would translate this by "Daya (means) what has come from an anvaya," the objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the gift of kramayata property taking effect, just after the verse which denies "the bestowal of the whole." Mr. Jha has contended that the word bhagi, sharer, in this sentence will apply to the wife because of Vachaspati Misra's concluding sentence in the comment on Yajnavalkya II. 52. We are not prepared to accept this contention for the reasons already indicated; whether in the husband's self-acquisitions or in the ancestral property, the wife is only to receive a share in conditions which cannot be brought about by her, and as the discussion about the consent of the anvaya to the gift of sarvasva does not show that Vachaspati Misra considered her consent necessary, we cannot suppose that he used the word bhagi in the present context to include her among other coparceners as ordinarily recognized. 358. The discussion of deya in the Vivada Chintamani thus seems to show that the sole owner of an estate is entitled to alienate it, provided he does not part with the house and with whatever may be necessary for the maintenance of the family, that a gift will stand even if it violates the injunction that what is necessary for the maintenance of the family must be ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, and which can be identified with Brihaspati (XV. 7 or) XXV. 93 and has been translated by Dr. Jolly (p. 384, Sacred Books of the East. Vol. XXXIII) as follows: Whether kinsmen are united or separate, they are all alike as regards immovable property as no one of them has power in any case to give, mortgage or sell it. The comment on this is: Some (say) on the authority of the words actually found (lit. heard) here that one (alone) has no power of sale and the like regarding even divided immovables. That is not so, because it is opposed to many texts. But where though (kinsmen are) divided, there has been no demarcation of their shares, (i.e., the immovable property) still remains common (1), and since it is thus common (2) (to many), one (alone) has no power. As regards all divided property without exception (1) (a transaction) takes effect which is carried out by (an) independent (owner) only; otherwise the precept (in the texts) would come to ought (2). (1) Madhyaka. (2) Sadharana. 361. After this we have Brihaspati's verse on the eightfold adeya XV. 2 (Dr. Jolly p. 342) which has been already referred to. The comment on this verse is as follows: Here also (it is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and wife and the existence of anvaya were both of them conditions which made the text prohibiting the gift of sarvasva applicable. They even went the length of maintaining that the words chanvaye sati were an anticipatory quotation from Narada. It is true that two verses from Narada containing these words are actually given a few lines afterwards, but quotations consisting merely of a conjunction cha and a locative absolute anvaye sati and conveying no complete idea by themselves and not marked by the usual iti are not often found. What is more, Brihaspati mentions among his eight adeyas the son and the wife as well as the sarvasva, and neither Brihaspati nor Narada--between whose verses the comment occurs--says any thing about the absence of consent of the son and wife in regard to the gift of the sarvasva or even of the son and wife as is commonly read into Katyayana's verses. The author's comments about ownership over the wife and the sale of his wife by Harischandra also suggest that he did mean to deal with the sale of the wife in addition to the sale of the sarvasva in his first sentence on Brihaspati's adeyas. The words chanvaye sati are in the context more th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quot; In a foot-note he says: I can nowhere find the text cited at full length: this much of it has been frequently quoted; but the author of it (Datta) is here named for the first time, and he does not rank among legislators. 366. The context in which this quotation occurs in the Sraddha Viveka was put to the respondent's translators and deals with the question of whether a deceased wife is entitled to pindas independently of her husband or receives them through him. A quotation from such a context would prima facie be but a poor basis for a new construction of the Vivada Chintamani. It has not been shown that Vachaspati Misra himself has anywhere adopted the quotation. On the contrary, appellant has laid stress--as we have already said--on the omission of Vachaspati Misra, when commenting on Yajnavalkya II, 52 to take notice of Apastamba's 19th Sutra which makes a wife an associate of the husband "with respect to the acquisition of property." The dictum dampatyor madhyagam dhanam has been noticed in several Hindu Law books, but has nevertheless not enabled any of the commentators concerned to hold that the wife's interest in the husband's property is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssarily implies that the wife is not really a co-owner of the husband's self-acquisitions, at any rate in the sense of being entitled to prevent him from giving them away. The maxim dampatyor madhyagam dhanam, if it be assumed to be applicable to such property according to the view of Vachaspati Misra, will therefore mean no more than that as long as such property is actually undivided, she is entitled to enjoy it in common with the husband. As regards ancestral property, we have already said that we have not been referred to any Mithila authority who deals with the position expressly. That the husband in Mithila may hold property independently of the wife, and thus irrespective of the maxim dampatyor madhyagam dhanam, will also appear clear from such texts as Manu IX. 199 which has been dealt with in the Ratnakara VIII. 2. This verse of Manu's, which has been already referred to, lays down that: women shall not make abstraction from family (property) common to many--Kutumbad bahumadhyagat--nor even, without the husband's permission, from his own property--svakad vittat. 369. The comment of the Ratnakara, on this verse is thus rendered by Sarkar and Chatterjee (p. 33) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by Tagore (p. 224): Property over which the father has an independent right shall be divided at his pleasure while only, he is living. Therefore his demise is essential to the partition of the above mentioned property. But what is the necessity for the demise of the mother? She has no right whatever over it. Vachaspati Misra does not meet the objection by saying that all property is common between the father and the mother,--dampatyor madhyagam dhanam--and that the mother is a co-owner with the father. On the contrary, he first puts out of the way a text of Sankha that: "They are not independent who have their father living, and so while their mother is living," with the remark that this text is meant not to bear on partition but to eulogies a mother possessing good qualities. He then re-states the objection in the form; according to Tagore (p. 225): How can dependence, with regard to the partition of an estate, upon a person who has no right over it, be consistent with reason? and meets it by saying that the term (paitrika), "paternal" in Manu's verse, being formed by an ehasesha (uniresidual compound), includes the mother's property as well, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own, concedes the ownership of the wife in the husband's wealth, but nevertheless does not recognize her as a coparcener of his in the sense of entitling her to demand partition from him, or avoid alienations made by him on his own account, or take his property by right of survivorship as a son does on account of his interest by birth. As a matter of fact there is no great difficulty about the translation of the maxim dampatyor madhyagam dhanam, though the respondent's translators made many difficulties about it. 375. The translation of the other passages relied on for the appellant was however a different matter, and we have so far dealt principally with the arguments that were addressed to us on that point only. We have said that the translations or interpretations that the appellant asked us to place on those passages were novel, and the point of that observation is that it will be impossible, by a decision founded on a new construction of the words of Vachaspati Misra or other Mithila treatises, to run counter to what appears to be the current of modern authority--see Thakoorain Sahiba v. Mohun Lall (1867) 11 MIA 386. The argument advanced on Vachaspati Misra's con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing among other remarks on the case: Vachaspati Misra comparatively is a modern Mithila writer, and however respected he may be for his learning, his authority for the exclusion or degradation of the daughter's son cannot avail against the many strong texts of Munis, decisive of his right, and the concurring opinions of expounders including writers of Mithila. It is then more of curiosity than importance to investigate what really is the doctrine of the author of the Chintamani on the subject.... It seems therefore that Vachaspati Misra has omitted the daughter's son from the series of heirs, but in a mode which exposes him to the imputation of ambiguity and inconsistency.... 378. A foot-note against the last sentence quoted above says: A popular rumour is said to exist in Mithila that Vachaspati Misra was dissatisfied with his own daughter's son, his presumptive heir. 379. Mr. J.C. Ghose is not the only modern writer on Hindu law who expresses the view that the translation of the Vivada Chintamani into English before the Vivada Ratnakrar made the former a book of superior authority, though during the time of the Hindu Kings the Vivada Ratnakara had unquestioned au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition in the section on adeya that the entire wealth may not be given even at a time of distress except with the consent of the anvaya, it is useful to bear in mind that the great great grandson is a conceivabe example of a person included in the anvaya who nevertheless does not by birth acquire an interest in the ancestral property, that the gift of the deya has no particular reference to a time of distress, and that in this later section it is repeatedly affirmed that consent is only necessary in the case of madhyaga or avibhakta property, that the consent of the sharers must be taken in such a case, and that a man is free (svatantra) to give away his separate property. 383. The Dvaita Parishista, as already shown, expressly approves of the doctrine that the entire wealth may not be given even with the consent of the anvaya as the gift is prohibited in case of the very existence of anvaya and Vachaspati Misra's comment on Brihaspati's verse enumerating the eight kinds of adeya property does not make it clear whether he accepts, or like his grandson the author of the Dvaita Parisishta, differs from the opinion of the Smritisara that a gift of one's entire property doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the means of supporting themselves. At the end of his section on Adatta, the fourth and last section in the Chapter on "Resumption of Gifts," he cites a verse of Narada IV. 12 which is thus rendered by Dr. Jolly (p. 130): Both the donee who covets invalid gifts and accepts them from avarice, and the donor of what ought not to be given who yet gives it away, deserve punishment. "Invalid gifts" is Dr. Jolly's rendering of Adatta in the original; Tagores makes it "what is deemed ungiven": "what ought not to be given" is of course adeya in the original. It will be noticed at once that the verse treats as an offence the gift, but not the receipt, of what ought not to be given; unlike some other commentators Vachaspati Misra does not deduce from this the culpability of the receipt also--see also Colebrooke's Mitakshara I. 1. 10. The Mitakshara, after dealing with Yajnavalkya II. 175, a verse which lays down that the entire wealth may not be given--is not deya--when there is issue (anvaya), introduces the next verse requiring acceptance to be public, especially of immovable property, as follows: Having thus mentioned property which ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re estate is not invalid. Modern scholars of standing like Mr. Golap Chandra Sarkar, Shastri, (Hindu Law, Ch. 16) and Dr. P.N. Sen (Hindu Jurisprudence, Tagore. Law Lectures 1909) take "the rule that the extent of a person's gift should not be such as to deprive his family of the means of subsistence" or "the prohibition of the gift of the entire property when there are sons to be provided for" to be "nothing more than a moral or religious injunction and the excess of the limit thus laid down cannot be a ground for holding the gift invalid"--Tagore Law Lectures, 1909, p. 85. 390. In Balwant Singh v. Hani Kishore (1898) 20 All 267 their Lordships of the Judicial Committee, dealing with the texts bearing on the alienation of immovable property acquired by a Mitakshara father, observed: It appears to them that the subject is one of those in which from the earliest times there have been two conflicting principles of law, one favouring the perpetual integrity and the fixed succession of family property, and the other the free use of such property for the circumstances of the day, The controversies and conflicting decisions on the father's powers o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opted son, he stands in the relation to her of a son, offers to her funeral oblations, and is heir to her estate; but he does not become the adopted son of her husband, nor offer to him funeral oblations, nor succeed to his property. If a husband and wife jointly appoint an adopted son, he stands in the relation of son to both, and is heir to the estate of both. If the husband appoint one person, and the wife another, adopted son, they stand in the relation of sons to each of them respectively, and do not perform the ceremony of offering funeral oblations, nor succeed to the estate of the husband and wife jointly; such is the usage of Mithila. 393. The husband can adopt in this form without any religious ceremonies and independently of the wife, and vice versa; land the Kritrima son adopted by the husband takes his property as heir to the exclusion of the wife. A son adopted in the duttaka form--a form which is not yet obsolete in Mithila: see Chandreshwar Prosad Narain Singh v. Bisheswar Partap Narain Singh (3), also excludes the wife; but unlike the Kritrima son he becomes a member of the adopter's family and thus incurs obligations to the adoptive father's wife. The Mit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , must be unfounded. We are clearly of opinion that Vivada Chintamani does not give the wife the right to demand partition, and that all that that authority can be taken to have laid down is that, as under the Mitakshara, the wife is to receive a share equal to that of a son when her husband chooses to make an equal division of his self-acquisitions, or chooses or is forced by the sons to divide the ancestral property. This qualified right, if it may be so called, to receive a share does not constitute her a coparcener of the husband. 396. We have observed that the maxim from the Sraddha Viveka regarding property being common to the married pair has not been shown to have been adopted by any of the leading Mithila authorities on Vyavahara, and that the Vivada Chintamani, like the Mitakshara, definitely lays down that in an undivided family a widow takes nothing by survivorship. This in fact led Mr. Jha to dwell on the rights of the wife as a wife, though what the appellant was seeking to enforce is her right not as a wife, but as a widow, in order to avoid the bequest. We are also of opinion that that consent that Vachaspati Misra speaks of is the consent of the anvaya and that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd's testamentary disposition of the property against the survivor's right to take the estate on his death. She has also failed to show that as a widow she is entitled to avoid the will on the ground that it was made without her consent. It follows that we must treat as entirely unfounded her contention that the compromise should not be given effect to because it is an unconscionable bargain. 400. These being our views, we are clearly of opinion that the plaintiff had very little chance of success in her suit for the estate on the ground of fraud, and in all probability equally little chance of success on the basis of the Mithila law as urged for her. It is contended on behalf of the plaintiff that the maintenance, house rent and conveyance which the compromise gave her was what she would have got in any case even if her suit, for possession of the estate had failed. The decree for arrears of maintenance was also for no more than was due to her, as under the Hindu law she was entitled to maintenance from the time of the death of her husband, She therefore received no consideration whatsoever for surrendering her claims to the estate and her right to the jewellery and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our law as in the civil law and systems derived from it, is not the sacrifice of a right but the abandonment of a claim. In dealing with a compromise, always supposing to be a thing that is within the power of each party, if honestly done, all that a Court of Justice has to do is to ascertain that the claim or the representation on the one side is bona fide and truly made, and that on the other side the answer or defence or counter-claim is also bona fide and truly made. 403. In the case before us, whatever may be said about the claim put forward by the plaintiff on the basis of fraud in connexion with the probate proceedings and on the basis of the Mithila law, or in respect of the jewellery and gardens as being her personal properties, there is no doubt that the defendants, who had obtained a probate of the will of Ugrah Mohan Thakur, honestly believed that they were justified in resisting the claim of the plaintiff and that she was not entitled to get anything more than the ₹ 100 per month which was allowed to her under the will of her husband. Their agreeing to suffer a decree for past and future maintenance and for house rent and conveyance was good and sufficient c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I, p. 198, basing upon the case of Stapilton v. Stapilton (1789) 1 Atk. 2 already referred to, says as follows: From the case of Stapilton v. Stapilton (1789) 1 Atk. 2 down to the present day the current of authorities has been uniform, and wherever doubts and disputes have arisen with regard to the rights of different members of the same family . . . . and fair compromises have been entered into to preserve the harmony and affection, or to save the honour of the family, those arrangements have been sustained by this Court, albeit, perhaps, resting upon grounds which would not have been considered satisfactory if the transaction had occurred between mere strangers. 406. In Williams v. Williams (1867) 2 Ch A 294 it has been held that a family arrangement may be such as the Court will uphold, although there are no rights in dispute and if sufficient motive for the arrangement is proved, the Court will not consider the quantum of the consideration. This principle has been followed repeatedly in India. In the case of Helan Dasi v. Durga Das Mundal (1906) 4 CLJ 323, Mookerjee, J., held that if parties settle a dispute, such settlement would not be set aside on the ground that it gave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against each other, agree to compromise these claims, and the knowledge, or means of knowledge, of each of them with respect to the mode in which, and the circumstances under which, his claim arises, stand upon an equal footing, and there is absence of fraud or misrepresentation, the transaction is binding, although the conclusion at which the parties may have arrived is not that which a Court of Justice would have arrived at had its decision been sought. The real consideration which each party receives under a compromise being, not the sacrifice of the right, but the settlement of the dispute, and the abandonment of the claim. It is no objection to the validity of the transaction that the right was really in one of the parties only, and that the others has no right whatever. If, for instance, two parties claim adversely to each other the inheritance of a deceased person, and, in order to avoid litigation, agree to divide the inheritance, it is no ground for setting aside the agreement that only one was heir, and that the other gave up the right which he really possessed. The fact that the one may have had no claim is immaterial, if he was honestly mistaken as to his claim. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, but this assumption is in our opinion entirely unjustified. 411. We have already discussed the financial position of the estate and have shown that it would have prevented any Court from allowing her maintenance at that rate from the death of her husband. For the first 14 or 15 years she would have got much less than this. Possibly the Court would have ordered a somewhat higher maintenance to take effect after the debt was discharged, but one cannot be sure of this. If under the circumstances the compromise was for maintenance at an uniform rate of ₹ 1,000 per month on the condition that the lady surrendered her claim to the estate, jewellery, gardens, etc., the compromise cannot be said to be without consideration, and cannot be ignored on that ground. This being our conclusion, we hold that the compromise was neither unjust to her nor an improvident act on her part. 412. The question therefore of exercising the inherent power of the Court, assuming that there is any such power in spite of the mandatory provisions of Order 23, Rule 3, Civil P.C., does not arise. If we have any such power, this is certainly not a case in which that power can reasonably be exercised. Reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the appellant against the lawful character of the compromise and against its being recorded. These are: (1) That the com promise cannot be recorded as no decree can be passed on its basis under Section 42, Specific Relief Act. (2) That a compromise not specifically enforceable cannot be recorded and that the compromise in question is not so enforceable. (3) That the contract to compromise stands rescinded on account of the defendants not having performed their part of the obligations arising under it. (4) That all the defendants not having joined in the compromise, it is unfit to be recorded. (5) That the compromise is unlawful, as it involves a transfer to the defendant of the shebaitship right of the lady and such a transfer is void under the Hindu law. (6) That some of the terms of the compromise and the identity of the parties to it are vague and uncertainable, and as the vague and uncertain part cannot be separated from the rest of the compromise, the whole of it is void. (7) That the compromise is unlawful, as Mr. Savi being an execution had no power to compromise the suit and create a charge on the estate without the permission of the Probate Court. 416. Three groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the instalments, the properties could not be sold in execution of the decree, but that a separate suit was necessary under Section 67, T.P. Act. The second case laid down that where a decree declared the amount payable to the plaintiff in respect of future maintenance and made it a charge upon the estate of the testator, such a charge was properly enforceable by suit and could not be given effect to in execution. Reliance has also been placed upon the case of Gobinda Chandra Pal v. Dwarka Nath Pal (1908) 35 Cal 837 where a suit was brought on the basis of a compromise decree which created a charge upon immovable property. The suit was decreed, and the High Court on appeal upheld the decree, this implies that the initial compromise decree could not be enforced in execution. 419. Further reliance is placed upon the case of Sarada Prosad Roy v. Mohan Saha: AIR1925Cal819 for the proposition that when a plaintiff abandons the other reliefs claimed in the suit, or does not offer evidence in support of them, this amounts to his not suing for such other reliefs at all. The considerations which arise on the contentions for the appellant on this branch of the case are these: (1) Wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e charge as directed by the first decree, and that deed was the basis of the second suit. That such a decree can be enforced in execution has been clearly explained by Sir Dinshaw Mulla in his commentary on the Civil Procedure Code, Edn. 9, p. 938, under Order 34, Rule 14, where the learned commentator has indicated that in order to come within the prohibition of that rule the mortgage or charge for which a suit is necessary should be prior to the decree. 422. The plain meaning of Order 34, Rule 14 and authority alike leave no doubt that so far as the decree for the past maintenance is concerned, it can be executed and that no separate suit will be necessary for enforcing the charge. As regards the future maintenance and the provision for house and conveyance, the compromise does not expressly say that the liability of the defendant in these respects can be enforced in the execution department, but there is nothing to prevent the Court from passing an executable decree for them as well. A "decree" has been defined in the Civil Procedure Code as: the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicate the amount of maintenance and to order the defendant to pay it. The plaintiff and defendants have agreed that the amount shall be ₹ 1,000 per month. It cannot be seriously maintained and nothing has bean urged before us to show, that had the case been decided on contest and had the Court fixed the amount of maintenance payable to the plaintiff, the Court would not have been competent to order the defendants to pay the amount, or that such an order would not have been enforceable. What difference can it make if instead of the Court determining the amount of maintenance to be paid to the plaintiff, the amount is settled by the parties themselves? We are therefore of opinion that on this compromise the Court below was not incompetent to pass an executable decree. 426. No doubt a practice has grown up according to which when a suit is compromised, a formal decree is not drawn up specifying the orders of the Court, but the decree drawn up says that the suit is decreed or dismissed (as the case may be) in the terms of the compromise and the petition of compromise is attached to the decree as an annexure. Nevertheless as soon as the petition of compromise is adopted as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for on such an assumption the only decree possible would be a declaratory one and Section 42, Specific Relief Act could thus have no application. It was however contended that though such a decree can be passed under the law, it cannot be passed in the present case, as it has not been provided for in the compromise and it will be going beyond the terms of the compromise to pass an executable decree. 429. We however do not think so. In our opinion, as we have already indicated an order passed under Order 23, Rule 3 to a party to perform an obligation, which he has himself undertaken, is not an interference with the compromise. The parties have asked the Court to pass a decree according to the terms of the compromise, and in doing so the Court has to add its command to the undertakings of the parties. Assuming however that the Court is precluded from passing an executable decree for future maintenance under the terms of the compromise, even then Section 42, Specific Relief Act, will not bar the passing of such a decree. The plaintiff in fact did sue for all the reliefs to which she was entitled to at the time. Therefore in our opinion, the requirements of Section 42, Specific Relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise was on the same footing as if it were a suit for specific performance of a contract, that a proceeding under Order 23, Rule 3 is a speedy remedy alternative to such a suit, that the terms of the compromise, at any rate several of them, are not specifically enforceable and two of them not enforceable at all, and that therefore the compromise cannot be recorded as an order for recording a compromise means the passing of a decree, which in effect would be a decree for the specific performance of a contract. It is urged that the obligation of the defendant to provide a house and a conveyance for the plaintiff cannot be specifically enforced. The payment of the future maintenance on the due date (the first of each month) cannot also be specifically enforced nor the payment of the past maintenance. There are however two terms which cannot be enforced at all, namely, the one contained in para. 6 of the petition that the defendant will be obedient to the plaintiff and look after her, and the provision in para 3 that the interest on the arrears of maintenance will be spent by the plaintiff in consultation with Suraj Mohan on a scholarship fund and religious work. 433. There must be mut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t itself, and that the remedy of the party, who wanted to stand by it was to sue the repudiating party for specific performance of the contract: see Hara Sundari Debi v. Dukhinessur (1885) 11 Cal 250 but this view was overruled by the Full Bench in Brojodarlabh Sinha v. Ramanath Ghosh (1897) 24 Cal 908. In the case of Ruttonsey Lalji v. Pooribai (1883) 7 Bom 304, Scott, J., holding that a disputed compromise could be inquired into the suit itself, observed: I think the legislature introduced this rule to meet the case where parties having agreed together, subsequently fell out. It was devised as an alternative and more expeditious course than a separate suit for specific performance, which remedy still remains open to the parties. 435. This observation of Scott, J., was quoted with approval in the case of Kuruppan v. Ramasami (1835) 8 Mad 482 and Appasami v. Manikam (1885) 9 Mad 103. The fallacy however in the contention of the appellant is that it confuses a suit for the specific performance of the contract to compromise the suit in a particular way with a suit for the specific performance of the obligations mutually agreed to be performed after the disposal of the suit on such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self in order to avoid multiplicity of suits. In this case the defendants have applied for the compromise to be recorded. They are in the position of a plaintiff, while the plaintiff is in the position of the defendant. 439. The prayer of the defendants would, if the proceeding were framed in the terms of a suit, be that the plaintiff be specifically compelled (in the proceeding itself) to have the original suit disposed of on the terms agreed upon by the parties, while the defendants are ready and willing to submit to the decree which he agreed to have passed against him. No doubt, in a suit for specific performance of contract, mutuality is essential, and the Court will not pass a decree for the specific performance of a contract unless the plaintiff could also be compelled to specifically perform his part of the obligation. But in the present case, regarded as a case of specific performance, the obligation which the defendant undertook was to have a decree for past and future maintenance and for providing a house and conveyance passed against him in consideration of the plaintiff having her other claims in the suit dismissed. 440. The Court, if there had been a suit for speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court can refuse to record it and pass in accordance with it a decree which may contain terms that are not specifically enforceable. The difficulty of the execution in such cases has been provided for in the Code of Civil Procedure. Order 21, Rule 32, provides that where a party against whom a decree for specific performance of contract .... has been passed has had an opportunity of obeying the decree and has willingly failed to obey it, the decree may be enforced .... by his detention in the civil prison or by the attachment of his property or by both. 443. Let us give an example. Supposing A has brought a suit against B, claiming damages of ₹ 5,000 on account of B's failure to deliver 5,000 maunds of wheat of a certain quality as contracted by him. The parties compromise the suit; the claim of damages is given up, and B agrees to have a decree passed to the effect that he would deliver to A 5,000 maunds of wheat of a particular quality within six months at a certain rate. There is nothing in Order 23, Rule 3 to prevent a decree being passed on this compromise, though it is obvious that the undertaking to deliver wheat of a particular kind is not specifically enforceab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmance of the new contract to have the suit disposed of in a particular manner--a contract which did not exist at the time of institution of the suit as was pointed out by Sanderson, C.J., in Tarubala's case (72). And this decree in the suit itself follows as a matter of course. 446. The analogy between a suit for specific performance of contract and a proceeding under Order 23, Rule 3 should not be carried too far. There is one obvious difference between them; while the Specific Relief Act gives the Court discretion to refuse specific performance of a contract and has specified cases in which specific performance of a contract cannot be granted, no such exception has been made in Order 23, Rule 3, Civil P.C., under which it is obligatory upon the Court to record a compromise if the Court is satisfied that the parties have settled their disputes by a lawful compromise. In the one case the matter is left to the discretion of the Court, but in the other no such discretion has been left to the Court, as was pointed out by their Lordships of the Privy Council in Sourendranath Mitra v. Tarubala Dasi (15), 447. That there is this difference between granting a decree for specific pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode of relief. The argument under consideration therefore applies, whichever of the two rival constructions is adopted, and cannot be treated as affording any special objection against either. Further, the tendency of the decisions in England and of the changes introduced under the Judicature Act seems as Scott, J., pointed out, to be unfavourable to this agreement." (The portions within brackets are ours.) 449. He then referred to the case of Eden v. Naish (1878) 7 Ch D 781 and after quoting the remarks of Sir C. Hall, V.C., proceeded: It is true, that the English cases arose under a system, which allows the Court a discretion to refer the parties to a regular suit; and for that and other reasons they are not strictly speaking authorities under Section 375, if that section is construed as being absolutely imperative. Still assuming the section to be imperative, the tendency of English legal opinion is not altogether without weight here. For the Indian legislature would appear to have gone a step or two further in the same direction for the purpose of avoiding multiplicity of judicial proceedings in this matter . . . There is doubtless some force in the argument adduced by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thinks fit and shall pay the balance to the judgment-debtor on his application. 451. For breach of a contract not specifically enforceable the aggrieved party is entitled not to specific performance but to damages. Similarly, the Civil Procedure Code provides a remedy in case a decree for specific performance of a contract is passed, but cannot be specifically enforced; damages may be in such a case be granted to the aggrieved party even after the decree has been passed. Reliance has been placed on behalf of the appellant upon the case of Blackett v. Bates (1865) 1 Ch Ap 117. The facts there were that under the award of an arbitrator defendant was to execute to the plaintiff a lease of the right to use such part of a certain railway made by the plaintiff as lay upon the land of the defendant, the lease to be in the words set out in the award; and the defendant was to have the right of running carriages over the whole line on certain terms and of requiring the plaintiff to supply engine power, while the plaintiff was to have an engine on the railway and during the term to keep the whole railway in good repair. The lease did not provide for these privileges awarded to the defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , excepting two terms namely about Suraj Mohan being obedient to the lady and to look after her and about the expenditure of interest on the arrears of maintenance on scholarships and religious works with the consultation of defendant 2, there is no other term in the compromise which cannot be lawfully enforced. The future maintenance can be definitely secured to her even by independent means apart from its being made a charge on the estate. No doubt, the punctuality of payment cannot be enforced, as no decree for payment of money can directly ensure that the defendant judgment-debtor be punctual, but any irregularity in the payment can always be remedied in suitable modes in the execution department and the plaintiff can be amply compensated if the payment of her future maintenance is delayed, or default is made in the payment of the instalments of the arrear maintenance or the interest on it. 455. The provision for a house and a conveyance can very easily be secured. If the defendant fails to provide a suitable house or a conveyance, the executing Court may have them found by a commissioner appointed by the Court at the cost of the defendant; or, as a last resort, it may allow t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompromise in respect of his interest in the property, and in their judgment the terms agreed to are such as to be susceptible in every detail to an effective order in the nature of specific performance against any party to the compromise who seeks to escape from his obligations thereunder. 458. This case is no authority for the proposition that a compromise cannot be recorded unless the terms are specifically enforceable. The effective order is spoken of as an order "in the nature of specific performance," and not an order of "specific performance." In fact a number of terms in that compromise were not specifically enforceable, such as the term about Bharat witnessing the deed, or releasing the claim, etc. or that things would be done, by a certain date In the case before us every material obligation which the defendant has undertaken can be enforced against him and every advantage gained by the plaintiff can be suitably secured to her. 459. We now proceed to consider the positions created by the compromise containing two provisions, which we hold to be unenforceable, namely, about Suraj Mohan being obedient and looking after the plaintiff and about the expend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he lady which she may or may not accept. Mr. P.R. Das, who appeared for the Savis and Mr. Ghose who appeared for defendant 2, expressly stated before us that the defendants do not want to enforce this. 462. Fry in his standard book on Specific Performance, Article 346, says that the uncertainty of description of the subject-matter may be got over by the election of one party to the contract where the effect of the contract is to give such a right of election. In this case there is an uncertainty about the object of the expenditure, namely, religious work (dharam) and there is also uncertainty as to the consequence of the lady not accepting the advice given by defendant 2. Defendant 2 now elects not to insist upon this condition. The condition was a restriction upon the free right of the plaintiff to spend the amount of interest in any way she liked. The condition was in favour of defendant 2, and he elects to abandon it. The rest of the contract is perfectly valid. Reliance has been placed by the appellant on the case of Sarbesh Chandra Basu v. Khetra Pal Singh (1910) 5 IC 236, where the question was the setting aside of a consent decree, a part of which was obviously illegal. Moo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore does not save the defendant. 465. This argument again suffers from the same fallacy as the one which we have just dealt with on the last topic, in that it confuses the specific performance of the contract to compromise the suit with the specific performance of the terms of the compromise itself which were to be performed after the disposal of the suit and in accordance with the compromise decree to be passed in the suit. The contract between the plaintiff and the defendant was that on her part the plaintiff would abandon her suit in respect of the estate, gardens, jewellery, etc., viz., all claims except to the maintenance agreed upon, and that on his part the defendant in return for the plaintiff doing so would submit to a decree of the Court making him liable for past maintenance to be paid in certain instalments with interest, and for future maintenance at the rate of ₹ 1,000 per month, besides paying ₹ 17,000 in cash towards the past maintenance and providing a house and conveyance for her. 466. The promise of the defendant to suffer to a decree on certain terms was the consideration for the promise of the plaintiff to have the rest of her suit dismissed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of maintenance; in fact, her maintenance was overpaid and the instalments of the past maintenance as fixed by the compromise had not till then fallen due, nor had any interest become payable by that time. After the filing of the application under Section 151, the defendant stopped payment of the maintenance. The plaintiff made attempts to secure payment of the monthly maintenance agreed upon, while she was prosecuting an application under Section 151, Civil P.C., to avoid the very compromise under which she was to get the maintenance allowance. The defendant resisted this attempt and was successful. When the compromise decree passed on 26th November 1924 was set aside by this Court on 8th June 1926, and the defendant formally applied, on 16th August 1926, to have the compromise recorded, and the case became sub judice once more, the Court ordered the defendant to pay to the plaintiff allowance at the old rate of ₹ 150 together with another ₹ 50 as house rent, and this amount the plaintiff continued to get till the order appealed against was passed. Since then the defendant has been depositing ₹ 1,000 every month in Court, out of which ₹ 500 per month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at for maintenance, be dismissed. There was always an offer by the defendant to perform this promise, and his right under the contract subsists. The contract was completed on 25th November 1924. On the next date, he paid the court-fees on behalf of the plaintiff (the plaintiff's suit having been instituted in forma pauperis) in order to enable the Court to pass the decree against him. When, on the 7th April, the plaintiff applied to have the decree set aside the defendant resisted her attempt. When the plaintiff was unsuccessful in the Court below and came up to the High Court, the defendant resisted her appeal, and since the decree was set aside, he has all along been fighting to have a decree passed against him in terms of the compromise. Nothing more could be done by the defendant. Sir Sultan Ahmed further relied upon Section 39, Contract Act. This section says that: when a party to a contract has refused to perform, or disabled himself from performing his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance. 472. Again, this section helps the defendant Regarding the part to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force the contract against the defaulting party. 474. It is really unnecessary to refer to the cases relied upon by the appellant, as the law seems to us to be perfectly clear under the various sections of the Contract Act. Those cases lay down that when a party is in default, he cannot cue for specific performance of contract; but in this case, as we have shown above, there has been no default on the part of the defendant. He was all along not only ready and willing but anxious to submit to a decree: and, in fact, the essence of the whole of the present litigation is that while the defendant wants a decree against him in terms of the compromise, the plaintiff wants to repudiate the compromise. Apart from this, though it is not material for the purpose of this case, it is clear that up to 7th April, when the plaintiff filed her application repudiating the compromise, the defendant was not in default but discharged his obligations under the decree. We would however like to refer two cases relied upon by the plaintiff. One of them is Ardeshir H. Mama v. Flora Sassoon AIR 1923 PC 203. 475. There the defendant agreed to sell a certain house on Malabar Hill in Bombay to the plaintiff. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty; but he executed the decree for the realization of the ₹ 2,200 from the plaintiff. The High Court disallowed this execution and held that to enable the defendant to succeed there must be performance by him of his part of the contract. His offer to perform it, after the plaintiff deposited ₹ 13,000 was not an unconditional offer, and therefore it was held that the defendant could not realise the ₹ 2,200. It is obvious that this has absolutely no bearing on the present case. In that case, the payment of ₹ 2,200 by the plaintiff to the defendant was to be made on the defendant getting a release of his property, though that release also was dependent upon payment of ₹ 13,000 by the plaintiff. There were three promises, and the performance of the third promise by the plaintiff to the defendant was dependent upon the performance of the second promise by the defendant to the plaintiff. 478. Here, there are only two sets of promises: one by the plaintiff to the defendant to let her suit for other claims dismissed, and the other by the defendant to the plaintiff to let a decree be passed against himself for maintenance, etc. Both of them are to be simu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on not to perform his part, it was not necessary for the first party to go further and do a nugatory act. In In re Bayley Worthington & Cohen's Contract (1909) 1 Ch 648, Parker, J., said: Default must I think, involve either not doing what you ought or doing what you ought not, having regard to your relations with the other parties concerned in the transaction; in other words, it involves the breach of some duty you owe to another or others. It refers to personal conduct and is not the same thing as breach of contract. If A contracts that B shall do something by a certain day, and B does not do it by the day named, A commits a breach of contract; but if the question arises whether the delay be due to A's default, A's personal conduct has to be considered, and the question will be whether he has committed some breach of his duty towards B. Later on the learned Judge observed: In my opinion the repudiation of the contract by the purchaser relieved the vendors during such time as the purchaser insisted on repudiation from proceeding with their part of the bargain. 482. Reliance was placed upon the cases of Jones v. Barkley (1781) 2 Doug 684. In another case British and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Mohan, he would be entitled, if the will were to be found invalid, to succeed jointly with Suraj Mohan to the estate after the lady's death, and partly because he was a co-sharer of the Kanchangarh estate which had taken the lease of the estate of Ugrah Mohan Thakur. Similarly Debi Prasad was joint on account of his being the trustee of the Kanchangarh estate, and Hardutti was joined as a transferee from Savi, the executor of the estate, of one of the Calcutta houses. 485. The compromise was between the plaintiff on the one hand and Savi and Suraj Mohan on the other. They were the parties mainly interested in contesting the plaintiff's suit. Having given up her claim to the estate and being satisfied with a maintenance for which the estate was sufficient security, the plaintiff need not have troubled about the other defendants. A compromise with some of the defendants cannot be illegal, even if a plaintiff wants to proceed with the suit against the other defendants if he still requires any relief against them; the suit against the remaining defendants would in such a case be disposed of on contest as against them only and by contest as against the defendants who are part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There the shebaitship was transferred to a stranger, and the lady got some benefit under the arrangement. 488. In this case there was a perfectly bona fide compromise of a really disputed claim, and we do not think there is anything illegal in it. It was held in the case of Niradbarani Dassi v. Shiba Das Pal (1909) 36 Cal 975 that an alienation of the office of shebait to a closely connected member of the family and without any idea of personal gain was valid under the Hindu law. The case perhaps want a steep further, and its authority, seems to have been doubted in Panchanan Bannerjee's case (24). We are however not dealing now with an alienation by a de facto shebait but with an abandonment of a suit by a claimant to the shebaitship, without any personal gain to herself, in favour of a man who was in possession as a shebait, and who would at any rate have been entitled to the shebaitship after her death even if she had succeeded in the suit. This is perfectly valid: see Giris Chandra Sew v. Upendra Nath Giridas: AIR1931Cal776 . It will be convenient at this stage to dispose of the cross-objection of the respondent about this part of the case. The learned Subordinate Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne. 491. It is contended that the house which the plaintiff is to get is not sufficiently described, nor the conveyance clearly specified, and that the executing Court will find difficulty in securing these things to the plaintiff if the defendant should make any default. Now the provision for the house and conveyance is contained in para. 4 of the petition of compromise which runs thus: Defendants 1 and 2 will arrange a house for the residence of the plaintiff according to her position at a monthly rent exceeding ₹ 100 and not exceeding ₹ 200 at Benares or some other place, and the payment of rent thereof shall rest with defendants 1 and 2. Besides that they (defendants 1 and 2) will provide a carriage with horse for going to the Ganges for bathing and for darshan of deities (paying visits to idols). The rent of the house and the carriage expense will be in addition to ₹ 1,000 for the maintenance allowance. We do not find any uncertainty in this. Our attention was drawn to Section 29, Contract Act, which says: Agreements the meaning of which is not certain or capable of being made certain are void. Particular stress has been laid upon Illus. (f) to that sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out is about the words "estate of Ugrah Mohan Thakur." It is contended that the words are indefinite, in that they do not make it clear whether the estate meant is the estate as it stood when Ugrah Mohan Thakur died, or the estate as it stood on the date of the compromise. This also can easily be made certain. The estate of Ugrah Mohan Thakur so far as the immovable property was concerned continued to be the same, except that one Calcutta house has been sold and another house in Calcutta has been acquired by the Improvement Trust and the estate has been leased out for some years to the Kanchangarh Estate. The sale proceeds of the house have not however been shown to have been taken away from the estate and were apparently used in the administration in meeting the debts left by Suraj Mohan. The lease to Kanchangarh was intended to last only a few years more. 495. The estate as it stood on the date of the compromise was ample security for the plaintiff's maintenance. The plaintiff was content to drop her entire suit on getting the maintenance, etc., provided in the compromise, and did nothing, before applying under Section 151, to indicate that she meant to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys: A disposal of property by an executor or administrator in contravention of Sub-section (2) or Sub-section (3) as the case may be is voidable at the instance of any other person interested in the property: see the Eastern Mortgage and Agency Co., Ltd. v. Rebati Kumar Roy (1906) 3 CLJ 260 followed in Charu Chandra Pal v. Kalidas Chandra (1910) 10 IC 269. 499. The only person interested in the property of the deceased is the residuary legatee under his will, namely, Suraj Mohan Thakur. The plaintiff cannot complain of the charge after giving up her claim to the estate, and Suraj Mohan Thakur not only does not object to the creation of the charge, but was a party to it and has all along been endeavouring to maintain the compromise. Now we take up the considerations of law which have been put forward as barring any inquiry under Order 23, Rule 3 into the genuineness and lawfulness of the compromise. They are, as we have said, res judicata, want of registration of the petition of compromise, and waiver. 500. It is contended that the compromise gave rise to a cause of action, on the basis of which a decree was passed by the Subordinate Judge on 26th November 1924. That decree was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bar be first removed before the plaintiff is allowed to proceed to the trial of the suit, and this is what was meant by the application to record the compromise, and the learned Subordinate Judge by his order under appeal has held that the bar exists and has recorded the compromise and a decree is to follow in accordance with it as a matter of course. Reliance is however placed upon a remark of Sir Dawson Miller, C.J., and Foster, J., in the course of the defendant's application for leave to appeal to the Privy Council against the orders of Jwala Prasad and Bucknill, JJ. The observation was made on an application of the plaintiff for the expeditious hearing of the application for leave to appeal and for maintenance. 503. The sentence relied upon runs as thus: We have been asked in this case to return the record of the original suit to the trial Court to enable that Court to proceed with the suit and we think that it is just and proper that we should do so. The words "to proceed with the suit" are relied upon as being an interpretation of the order of Jwala Prasad and Bucknill, JJ., by the late Chief Justice and Foster, J., and reliance has been placed upon the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of Savitri Thakurain that the compromise decree has in effect been set aside by this Court and that the learned Subordinate Judge under the order of this Court should proceed to dispose of the suit. The learned Subordinate Judge rejected this contention and has fixed a date for disposal of the application which was presented in April 1925. 505. The learned Judges did not express any dissent from the view taken by the learned Subordinate Judge. The plaintiff was, however, not satisfied, and the matter was pressed once more before this Court in Civil Revision No. 259 of 1927. The order runs thus: The first point taken by Mr. Pugh is that the order of Jwala Prasad, J., in this Court precludes the Court below from entering into the question of compromise. I do not read the order of Jwala Prasad, J., in the way in which Mr. Pugh reads it and for myself I am concluded by my own decision, dated 17th December 1925. This point must accordingly be overruled. The order of 17th December is the one which we have just referred to. Sir Dawson Miller himself while rejecting the defendant's application for leave to appeal to the Privy Council said as follows: The order in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings, filed by the parties, or of order made by the Court. 508. In Pranal Anni v. Lakshmi Anni (1899) 22 Mad 508 the Judicial Committee held that the razinamah, in so far as it was submitted to and was acted upon judicially by the learned Judge, was in itself a step in a judicial proceeding not requiring registration. The above two cases were followed by the Madras High Court in Natesan Chetty v. Vengu Nachiar (1909) 33 Mad 102. There have been a number of decisions of various High Courts to the same effect. It is sufficient if we refer to a few of them. In the case of Appasami v. Manikam (1885) 9 Mad 103, where the question was whether a disputed compromise can be recorded under Section 375 of the old Civil P.C., one of the questions raised was that as the compromise created a charge on immovable property, an oral agreement was in effective in view of Section 59, T.P. Act. 509. The Madras High Court held that: the intention of the parties to the agreement was, not that it should of itself create a charge on immovable property but only that it should create a right to obtain a decree by way of specific performance. It is in the nature of a preliminary contract intended to be pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of the suit or proceeding. It is to be noted that the award which did not require registration under Act 16 of 1908 or the earlier Act was taken out from the exception and also a decree based upon a compromise which affected properties not within the suit. It is inconceivable that the legislature exempted a compromise decree from registration, provided the compromise is within the scope of the suit but intended that the compromise petition itself should require registration. 511. Such a construction will make the exception in Clause 6 nugatory. Compromises were in the consideration of the legislature, and if they wanted that a petition of compromise should be compulsorily registrable but not the decree, they would have said so. The fact remains that a decree based upon a compromise which does in fact create or extinguish a right is exempt from compulsory registration. The compromise petition which, on the other hand, only asks the Court to create or extinguish that right cannot be held to be compulsorily registrable. No authority has been placed before us for such a proposition, which is entirely against the intention of the legislature as expressed in the year 1929. 512. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue Courts which were sought to be used later on in civil suits as a basis of the title created by those petitions. No case has been placed before us showing that a petition of compromise before a Court of justice cannot be acted upon by that Court itself unless it is registered. 515. That there is a distinction between a petition being used in the Court to which it is presented and its being subsequently used in another Court for the purpose of proving the right, if any, under that petition, has been recognized by their Lordships of the Privy Council in the case of Vyaravan Chetti v. Subramanian Chetti: AIR 1920 PC 33 where Lord Buckmaster said: and if, on the other hand, there are two distinct provisions, the one relating to rights of property and the other with regard to the division of the realisation moneys then, as these proceedings relate merely to the question of the realized money, it need not be registered for the purpose of being given in evidence in this suit, although it may be that it would require to be registered for the purpose of being given in evidence in a suit relating to the regulation of the rights against the estate itself. 516. We therefore hold that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ick baths in the Ganges. On or about 16th of that month Durga Nath who was married to the plaintiff's sister came to Suraj Mohan and invited him to see the lady at Simaria Ghat. On this invitation Suraj Mohan went to Simaria Ghat. 519. There the main terms of the compromise were settled viz. that the lady would retire from the contest of the suit if given a maintenance of ₹ 1,000 per month from the date of her husband death, the arrears for the past period to remain in deposit with the estate and interest thereon at 6 percent per annum to be paid to her for religious and charitable objects. These terms having been settled, Durga Nath was sent to fetch Ram Krishna Jha from Darbhanga where he was then practising as an Advocate. Ram Krishna Jha is a first cousin of the plaintiff, had been financing her, and has been in fact the life and soul of this case. Durga Nath could not find Ram Krishna Jha, as the latter had presumably come to Patna to file the revision application of 18th November in this Court in connexion with the suit. 520. Thereupon the lady and Suraj Mohan all came to Monghyr. The hearing of the suit had been fixed for 21st November. At Monghyr the party put u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's) went to Bhagalpur with this draft to obtain the consent of Mr. Savi. Mr. Savi at first refused, as he thought that the estate was not in a position to bear the burden of so much of maintenance of the plaintiff, but he ultimately agreed if a clause of personal exemption for him was added to it. 522. This was agreed to by the lady, and the petition of compromise with this clause added was duly fair-copied at the house of Rai Bahadur Lakshmi Prasad Singh in the presence of Bodh Krishna Jha. In the meantime the lady had left her residence and had gone to the railway station. The petition was taken there, and she signed it there, after reading it and after fully understanding the contents. Ram Krishna Jha did come to Monghyr either on 23rd or on 24th November; the former is the date according to the defendant and the latter according to the admission of the plaintiff; the actual date to our mind is not of importance. According to our finding he put up in the same house as the plaintiff and the two had full consultations about the terms of the compromise. 523. We believe that the petition of compromise was read by Ram Krishna Jha at the railway station, and he read it over to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Bahadur obtained a copy of the petition of compromise for her, and Bodh Krishna Jha and Ram Krishna Jha visited her at Bhagalpur during the month of December 1924. In January she went to Allahabad for Kalpbas. Suraj Mohan went along with her and helped her comfortably to settle there and came away after giving her ₹ 1,500. The plaintiff's story that ₹ 500 was given for her kitchen expenses and ₹ 1,000 was sent later through Balbhadra for the (barkhi) sradh of her husband is devoid of truth. So is her story that it was at Allahabad that for the first time she came to know of the terms of the petition of compromise (Ex. A). 526. The story that Balbhadra brought these terms to her notice at Allahabad is unworthy of credence. No fraud was practised upon her. There was in our view no opportunity even for any fraud, for during the whole course of the negotiations and the settlement of the terms of the compromise, she was all along accompanied and surrounded by several of her admitted well-wishers and advisers and those who were looking after her case. We have also found on the evidence on the record that the defendant has discharged the onus, if it lay upon him, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han Thakur is not illegal. Our finding is that all the essential terms of the compromise are neither vague nor uncertain. Two terms only, viz., those about Suraj Mohan, being obedient to the lady and looking after her, and about the interest on the arrears of maintenance being spent on scholarships and religious works in consultation with the defendants, are certainly unenforceable, but they are severable parts of the contract, and the defendant has elected to forego the condition that he is to be consulted as regards the expenditure. 530. The compromise is not void on account of Mr. Savi, who was the executor of the estate of Ugrah Mohan Thakur, not having obtained the permission of the Probate Court. He was fully empowered to compromise. Even if such permission be considered necessary, that would only make the compromise voidable at the option of a person interested in the property. The only person so interested under the will is Suraj Mohan Thakur who wants to abide by the compromise and was himself a party to it. Enquiry into the genuineness and validity of the compromise is not barred on the ground of res judicata; the petition of compromise did not require registration; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... honours of the lady of the house, the allowance given to her was not very liberal. By his will her husband left her a very small allowance of ₹ 100 per month. In those circumstances, if she took into her head to fight the will of her husband, one might have excused her; but she had no justification for carrying the litigation on after the compromise with Suraj Mohan, a young lad, who admittedly used to look upon her almost as a mother. We have said that, according to the plaintiff herself, the boy went to Simaria Ghat and lay prostrate at her feet. 534. He agreed to all the terms the lady desired for the compromise, paid her ₹ 20,000 which she made over to. Mr. Ram Krishna Jha, brought her to Bhagalpur and admittedly looked after her there satisfactorily. When she went to Allahabad, the boy accompanied her, and she was comfortably lodged there and given ₹ 1,500. Her maintenance, as we have held, was overpaid. Unfortunately, at Allahabad, obviously under evil advice, she thought of starting the fight once more. In our opinion this was entirely unjustified the respondent not unnaturally characterised it before us as a blackmailing attempt and as another turn of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The plaintiff, after the order to record the compromise was passed by the Court below, preferred two appeals: one, against the other recording the compromise, and the other against the decree which was passed in consequence of that order. The appeal against the decree was accompanied by a petition for permission to appeal in forma pauperis, as the plaintiff had instituted her suit as a pauper. Two appeals, namely, the present miscellaneous appeal against the order recording the compromise and the appeal against the original decree, were preferred as the plaintiff was apparently in doubt about the correct remedy open to her, in consequence of a decision of the Calcutta High Court in Bengal Coal Co. Ltd. v. Apcar Collieries Ltd. to the effect that an order recording a compromise followed by a decree merges into the decree, and that it is the decree that is appealable, and not the order. The appeal against the order was however admitted by a Bench of this Court Savitri Thakurain v. F.A. Savi and it was held that an appeal lay against the order as expressly provided in the Civil Procedure Code, Order 43, Rule 1(m), and it was indirectly held that no appeal lay against the decree itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decree had been presented, as in fact none could be properly presented under the law. The dismissal of the appeal, on the grounds stated above, does not preclude us from proceeding to determine the appeal against the recording of the compromise. Our thanks are due to the Bar for the great assistance they have so willingly rendered to us; one and all they have been of great use to us. The result is that the appeal of the plaintiff against the order recording the compromise is dismissed with costs. We fix the hearing fee at ₹ 5,000, out of which ₹ 250 will go to Mrs. Savi and Miss Mouna Savi, respondents 1 and 2, and remaining ₹ 4,750 to respondents Suraj Mohan. 542. These respondents will also get their other costs incurred by them in this appeal. The other respondents will bear their own costs. The cross-objection of Suraj Mohan is allowed. The observations or finding of the learned Subordinate Judge in respect of the debutter properties is set aside, Suraj Mohan is allowed all the costs incurred by him in the Court below, since the time the matter was sent back to that Court by the order of this Court, dated 8th June 1926; pleader's fee ₹ 3,350. A de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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