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1932 (10) TMI 14

a pending suit said to have been arrived at between the plaintiff (the appellant) on the one hand, and defendant 1 (Mr. Savi now dead) and defendant 2 (Suraj Mohan Thakur) on the other, be recorded. The case has a long history and in order to appreciate the various points raised it is necessary to have a general view of the protracted litigation. Ugra Mohan Thakur, a wealthy zamindar of Barari in Bhagalpur, died on 29th January 1914. 2. He left considerable properties though at any rate then burdened with heavy debts. He left surviving him his widow Savitri Thakurain (the appellant), three nephews (the sons of his half-brother Pran Mohan Thakur) and his mother Jugbati Debi. On 26th February 1914, i.e., within a month of his death, one Mr. Savi, who was the manager of the deceased's estate, filed an application before 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 pu .....

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ts to increase this amount were unsuccessful. After the disposal of the compromise matter by this Court in 1920 mentioned later the allowance was raised to ₹ 500 per month with an additional sum of ₹ 200 for house rent and ₹ 100 for conveyance. The lady was also allowed in some years ₹ 1,000 and in others ₹ 500 for the performance of the annual sradh of her husband. In this suit the plaintiff attacked the genuineness of the will and asserted that the probate was obtained by fraud. She further attacked the right of her husband to bequeath the properties to his nephew on the ground that some of the properties covered by the will were her personal properties and that the estate itself was an ancestral one, and under the Mithila School of Hindu law which governed the parties she was a coparcener with her husband and therefore her husband had no 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, f .....

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another Subordinate Judge, Mr. Ram Chandra Chowdhury, who on 6th July 1925, refused the application, holding that the plaintiff's remedy was by a separate suit Being dissatisfied with this order the plaintiff moved this Court and on 8th, June 1926, this Court (Jwala Prasad and Bucknill, JJ.), held that the order of the learned Subordinate Judge, dated 26th November directing preparation of a decree on the basis of the compromise was illegal, as there was no formal order for recording the compromise, and a decree on a compromise could not be drawn up unless the compromise was recorded. The decree was set aside, and the Subordinate Judge was directed to take up the case from the stage at which the compromise was filed. 11. Defendant's attempt to appeal to the Privy Council against this order failed, and the learned Subordinate Judge took up the matter under Order 23, Rule 3, Civil P.C. The parties seem to have contested up to this 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, .....

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subsequently added as a transferee of a Calcutta house from Mr. Savi. The plaint has four Schedules. Schedule A gives details of the estate of which the plaintiff claimed to be a coparcener with her husband. One of the items in it is a life policy of the deceased. Schedule B sets out the debuttar properties of which the deceased was the shebait. Schedule C comprises properties in which it was said the deceased had no share and which were claimed by the plaintiff as belonging to her exclusively, and Schedule D mentions the moveable properties required by the plaintiff for her personal use. 15. The plaint first of all recited the relationship of the parties and then proceeded that after the death of Ugra Mohan Thakur troubles arose about the performance of his sradh ceremonies. Objections were raised on account of the deceased having been outcasted. The plaintiff was therefore compelled to go to Gaya for the performance of the sradh. During her absence Mr. Savi with the help of 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 th .....

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ked that in case she be held not to be entitled to the estate, she be granted: (e) A suitable maintenance (she estimated it at one-third of the income of the estate) for life and due provision in the decree for regular payment of this maintenance by the appointment o# a receiver or otherwise; (f) A decree for arrears of maintenance allowance; (g) An order that ₹ 1,000 or such suitable sum as the Court thinks fit to be paid annually for the sradh of the deceased; (h) A declaration that, she was entitled to reside in the Anand Garh Palace (the chief palace of the estate) and a decree for ₹ 14,625 with ₹ 6,700 as interest for her being deprived of a residence after the death of her husband, on account o# her having been turned out from the deceased's Calcutta house where she bad been residing. 20. The house was sold to defendant Hurdutti; (i) A decree for moveables mentioned in Schedule D or its equivalent value; (j) In any event a declaration in her favour for the life-policy of her husband valued at ₹ 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 .....

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ouse for the plaintiff's residence, they were ready to allow her to reside at Ganga Nivas and that her claim to reside at Anand Garh Palace was unjustified and unreasonable. 23. These were the respective cases of the parties on which the suit was proceeding to trial. We have said that the suit was instituted on 6th April 1920, and had been pending for more than four years when the petition of compromise in dispute was handed over to the Subordinate Judge. It is desirable at this state to give in brief the circumstances leading to the filing of the compromise petition. We will avoid at present mentioning, facts which are disputed and will confine ourselves to those that are admitted or practically admitted. 24. After the death of her husband the plaintiff ceased residing at Bhagalpur. It is admitted that Mr. Savi did not allow her to reside at Anand Garh Palace; according to him she was permitted to reside at Ganga Nivas. Whatever may be the cause, she left Bhagalpur and went to reside at Calcutta at No. 31, Alimuddin Street. This house which belonged to the deceased was after his death sold by Mr. Savi to Hardutti, wife of Debi Prasad Marwari, who took ste .....

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tition was brought, the defendants signed it and the lady's signature was obtained on it and it was handed over to the Subordinate Judge who happened to be at the railway station platform. Ram Krishna Jha was admittedly present on the occasion and ₹ 20,000 was paid by the defendants either to the lady or to Ram Krishna Jha at the instance of the lady. 29. This sum, the lady says, Ram Krishna. Jha had agreed to accept in satisfaction of the money he had advanced for the litigation. The petition of compromise having thus been handed over to the Subordinate Judge, the lady was brought to Bhagalpur where she lived with Suraj Mohan in the Anand Garh Palace and remained there for some time till she left the place for Allahabad to perform the annual sradh of her husband. According to her statement it was at Allahabad that she leaned for the first time that the terms embodied in the petition of compromise were not those which she had agreed to. 30. She took steps, consulted her lawyers and ultimately on: Terms of agreement as alleged by the plaintiff. 1. The plaintiff would remain the owner and in possession of the whole estate for life .....

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:p> 1. Plaintiff's claim to the estate absolutely withdrawn. Plaintiff to get ₹ 1,000 a month for her maintenance from beginning of November 1924; the maintenance to be a charge on the estate of the deceased and to be payable on the 1st of every month. 2. No provision except a provision for conveyance in places of pilgrimage (mentioned below). S. No provision for residence at Bhagalpur but the defendants were to arrange for her residence at the places of pilgrimage in a house costing a monthly rent between ₹ 100 and ₹ 200 and provision for a carriage and a horse. 4. No provision. 5. After allowing for the payments made to her, she was to get ₹ 1,17,000, of which ₹ 17,000, was to be paid in cash and the rest in six yearly instalments, the first four of which were to be of ₹ 5,000 each and the last two of ₹ 40,000 each. This amount was to carry interest at the rate of six per cent per annum to be payable by the estate. The interest was to be paid on 31st December each year and the amount of interest was to be spent by the plaintiff after consultation with defendant 2 over scholarship fund or som .....

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n the exercise of the Court's inherent powers we should refuse to record it. All these matters will be dealt with in their proper places. We will first take up the question whether the terms contained in Ex. A were agreed to by the lady and whether she signed it intelligently. 36. In order to decide this it is necessary that we should give in some detail the respective versions of the parties as to the circumstances under which the compromise was arrived at and as to what transpired since then which terminated in the lady filing the petition under Section 151, Civil P.C., repudiating it. The lady's story is that she had gone to Simaria Ghat, a place on the bank of the Ganges, for the annual Kartik asnan (bath in the Ganges in the month of Kartik) which lasts for full one month. The party which accompanied her consisted of Bidya Jha (her uncle), Pitamber Jha (son of Bidya Jha), Durga Nath and one Khajan Dai, some servants, peons and cook. This Durga Nath has been mentioned rather prominently in the case. 37. On the one hand he has married a sister of the plaintiff, and on the other he is remotely connected with Suraj Mohan, one of his grand-d .....

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s that she took the house to be a Dharamshala, and that it was only two days later that she realised having been kept in the house of Baiju Mandal. She makes it a grievance that she was taken to this house at all. Her case is that Baiju Mandal was in collusion with Suraj Mohan, and that the latter with a design put her up in that house so that she might not be free to do what she liked and get to know the effect and terms of the compromise. 40. We ought to have mentioned that before the party reached Monghyr one Chandra Nand Missir was sent from the way to fetch Ram Krishna Jha from Patna where he was expected to be in connection with the proceedings in the High Court about the trial of issues 6, etc. Chandra Nand Missir returned to Monghyr on the 18th and brought a message that Ram Krishna Jha refused to come. The lady then asked Madhu Kant Jha to send a wire to Ram Krishna Jha. The next day (19th) Khan Bahadur Sayeed-ud-din, Government Pleader, who wss appearing for her in the suit, was brought to the verandah of the house she was occupying, and finding her surrounded by her adversaries told her to send her man to him with instructions about the terms of the compromise .....

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as alleged by her) signed it on the word for word and letter-for-letter dictation of Suraj Mohan Thakur. She could not personally satisfy herself as to the correctness of this assurance as she was perplexed, and there was a large number of persons in or about the place. As arranged, ₹ 20,000 was paid to Ram Krishna Jha. Thereafter she heard somebody reading something from outside which she could not follow. Later on somebody said that he was the Hakim (Presiding Officer of the Court) and asked her if she had compromised and she answered "ji" (yes). After a few hours she was taken by Suraj Mohan to Bhagalpur and lodged at Anand Garh. From there once she went for Koshi bath. It is admitted that she was well treated there and the wives of her nephews were all attention to her. 45. In the middle of January 1925, she left for Allahabad to perform the annual sradh of her husband, which was due on 27th January 1925, and also for kalpbas on the banks of the sacred rivers. A servant of Suraj Mohan went ahead to arrange for the huts, and Suraj Mohan himself accompanied her. After a few days he returned and as asked by her sent ₹ 1,000 for the annual sradh of .....

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ing the sradh of the deceased about which some difficulty was raised by his castemen, and accompanied her to Gaya where she went for this purpose. He was a witness before the Original Side of the Calcutta High Court in the case of the will propounded by the lady. He was admittedly financing the lady in her litigation and was in charge of her cases. He came to Monghyr at least on the 24th, was present at the railway station at any rate to receive ₹ 20,000 in satisfaction of his dues. 49. His absence from the witness-box in this case has been the subject-matter of criticism by the defendant. Though one would find from the petition under Section 151, Civil P.C., that he washed his hands of this case, was not willing to help the lady any more and had refused to do anything with the compromise, he conducted this case before the learned Subordinate Judge. Later on we shall have to comment upon the non-production of this gentleman and also of Khan Bahadur Maulvi Sayeeduddin. 50. We now turn to the version of the incidents leading to the compromise and of subsequent events as alleged by Suraj Mohan Thakur. His case as disclosed in his petition of objection and e .....

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tled at Simaria Ghat, there was no mention of any cash payment of the arrears of maintenance. Rather the arrangement was that they would never be paid in cash, and the plaintiff would only get the interest to be spent on some charities as settled between the parties. 53. There was also according to him, at that time no mention of any house rent or conveyance. The terms having been settled, Durga Nath was sent to Darbhanga to fetch Mr. Ram Krishna Jha. He was not found there, and Durga Nath came back. The party then left Simaria Ghat in the evening of the 17th. Suraj Mohan sent a wire to Monghyr asking Babu Baiju Mandal, sharistadar of the Judge's Court to arrange for a house. The telegram was not received by him till the following morning (18th November). The party therefore went from the railway station where they reached at about midnight to the house of the said Baiju Mandal and had to accommodate themselves there for the night. Next day there was some talk of the change of the house but as the lady felt quite comfortable there it was not done. Suraj Mohan repudiates the suggestion that the lady was lodged in the house of Babu Baiju Mandal with a design and that s .....

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as we have already said, that according to the plaintiff Ram Krishna Jha came to Monghyr on the 24th and according to Suraj Mohan came there on the 23rd. The defendant's version is that he put up in the same house where the lady was staying. This is denied by the plaintiff. Suraj Mohan asserts that Ram Krishna Jha saw the plaintiff and had a full talk with her, and that the draft already prepared was made over to him by his clerk Ram Bahadur and read out by him to the plaintiff and he believes that he showed it to Maulvi Sayeed-ud-din and Hito Rai. 57. On the 24th Mr. Savi came to Monghyr and expressed his inability to agree to, the payment of a maintenance of ₹ 1,000 a month as he thought that with the income of the estate he could not pay more than ₹ 500. 58. He went, back to Bhagalpur and came again on the 25th and ultimately consented to sign the petition of compromise if a clause exempting him from personal liability in this respect were added to it. A fresh clause to this effect was written on a separate piece of paper When Suraj Mohan with this piece of paper came to the house of Babu Baiju, Mandal where the plaintiff was staying, he le .....

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er the Hindu law she was not entitled to perform the Sradh. ₹ 1,500 was paid to her out of her maintenance allowance to meet the expenses of her "kalpbas" at Allahabad. The defendant further says that during her stay at Bhagalpur a sum of ₹ 3,306-12-0 was spent over her and that that was also an advance towards her maintenance allowance. 61. From Allahabad she began dismissing the servants of Suraj Mohan who had gone with her till none was left. These are the respective versions of the parties. We have stated them in some detail as their proper appreciation will be useful in weighing the conflicting evidence adduced by the parties. The first controversy is as to the circumstances under which Suraj Mohan went to Simaria Ghat. On the one hand his case is that he was invited there to settle the terms of compromise on the other the lady emphatically denies any such invitation, and asserts that Suraj Mohan Thakur paid her a surprise visit as arranged between him and Durga Nath, the latter being in collusion with the former. 62. In our opinion this controversy is of no great importance. It is admitted that Suraj Mohan went to Simaria .....

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shna Jha. What is extraordinary if in that mood she sought an interview with her nephew for a face to face talk with a view to end the litigation? It may also be that Durga Nath and Bodh Krishna Jha, realizing the effects of this ruinous litigation, in the interests of the lady herself, either at her instance or of their own, approached Suraj Mohan and suggested to him an interview with the lady. Well-wishers of a family generally intervene in such matters and if the feeling between the fighting parties be bitter they try to smooth matters over by suggesting moderation to both of them. Every body connected with the lady could not have been for the suit to continue. A lady of a respectable family was bitterly fighting with the nephew of her husband, was deposing in Courts and was being disbelieved. 67. Such a state of things could not have been pleasing to these who were her friends, and they might not improbably have arranged to have a meeting between the aunt and the nephew. The lady has admitted in her evidence that her uncle Bidya Jha and others were advising her to compromise. Let us now examine the evidence on this point. (After discussing some evidence t .....

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nts to be correct. Nothing of this sort was done, and as we have said the learned Subordinate Judge rightly refused to take that letter into evidence. On 14th April 1932, in the course of his argument, Sir Sultan Ahmad moved us by a petition to admit that letter in evidence. We rejected the application and intimated that we would give our reasons in the judgment of the case. Mr. Jayaswal, the writer of the letter, being available, his statement in the letter can in no circumstances be admitted in evidence. 71. Later on the 25th of April another application was filed asking us to examine Mr. Jayaswal as a Court witness under Order 16, Rule 14, Civil P.C. We refused that application also and promised to give our reasons in our judgment. We agree in the observations of Beaman, J., in the case of R.D. Sethna v. Mirza Mahomed Shirazi (1907)9BOMLR1044 . In that case an application was made by the defendant to examin Mr. Wadia, an advocate appearing in that case. The learned Judge said: Here there is an additional reason why I, think it would be improper to have Mr. Wadia's evidence. He has been present in Court throughout, conducting as junior counsel his client .....

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uggestion if it was at all made by the learned Judges was communicated to the lady and she refused it. The letter purports to have been addressed to Mr. Ram Krishna Jha who has not been examined and there was no proposal to examine him. Mr. Jayaswal was not a witness to this communication and refusal. His evidence would not have been of any value. Mr. Murari Prasad has been examined to prove this. Before coming to discuss his evidence we have to dispose of a grievance made by Sir Sultan Ahmed. An attempt was made to prove through Mr. Murari Prasad that the proposal to refer the case to arbitration and the suggestion of ₹ 1,000 as maintenance emanated from the learned Judges themselves. 76. The learned Subordinate Judge disallowed the question which was intended to elicit this and, in our opinion, he would have been well advised not to do so. The question was perfectly admissible and therefore for the purposes of this appeal, we will assume that Mr. Murari Prasad's evidence was that the learned Judges themselves suggested that the matter be referred to arbitration, suggesting a maintenance of ₹ 1,000. The plaintiff's case is not a bit improved by this. .....

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tances which do not make it binding upon him. In this case the plaintiff alleges that she signed the petition without knowing its contents and that she did so in consequence of the fraud practised upon her. 79. It is a well-settled principle of law that those who allege fraud must prove it, and accordingly it would have been for the lady to prove acts and circumstances constituting the fraud under which she had signed these two documents. But it is contended that this is a case of a pardanashin lady, and as repeatedly laid down by the Privy Council it is for those who want to hold a pardanashin lady to the documents executed by her to show not the mere execution of the documents by her but also her intelligent execution of them. In other words, those who want to take advantage of a document executed by a pardanashin lady must prove that she knew its contents and executed it with full knowledge of its effects and consequences and that she had independent advice in the matter. We shall deal with this topic when we come to examine the applicability of the special rule about pardanashin ladies. 80. The defendants argue that this doctrine cannot in its entirety app .....

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aintiff were, it would appear, intentionally made to run so parallel to the terms mentioned in the petition as to leave scope for advancing an argument of misunderstanding. We will deal later with the point whether there was any room for any misunderstanding. At this stage we wish to take a general view of the story of fraud in changing the terms of compromise. (After discussing evidence the judgment proceeded). We are perfectly certain that nobody would have embarked on a project to commit such a fraud without any intuition that the circumstances would come to help him and that the lady would be over-confident; Ram Krishna Jha, Bodh Krishna Jha and Ram Bahadur indifferent, the lawyers unprofessional, the Sharistadar corrupt and the Subordinate Judge credulous. According to the plaintiff all this happened and gave Suraj Mohan an opportunity to defraud her. Either the plaintiff's version is false, as we will show it is, or we must give Suraj Mohan, then a lad of 18 years, or to his associates and companions, credit for having a prophetic vision of the future. 85. We now come to direct evidence about the terms of compromise. (After discussing evidence the ju .....

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rly mentioned that Maulvi Sayeed-ud-din came to the lady and explained to her the nature of her suit and that the lady mentioned to him the terms on which she had compromised and that afterwards drafts were prepared by Maulvi Sayeed-ud-din. 88. This on the face of it made Maulvi Sayeed-ud-din a very important witness in the case. If the allegation in the petition of objection was true that Maulvi Sayeed-ud-din explained to the lady the extent of her claims in the suit and that the lady told him the terms on which she had compromised, there was an end of the plaintiff's case. Maulvi Sayeed-ud-din ought to have withdrawn from the case at least at that stage. This is not all. The defendants examined Babu Bhairo Prasad pleader and he definitely stated that Maulvi Sayeed-ud-din explained to the lady the extent of the suit and that the lady told him that she had compromised the suit on accepting ₹ 1,000 as maintenance. 89. A brother pleader of Maulvi Sayeed-ud-din's thus deposed on oath as to a fact directly in contravention of the case set up by the plaintiff. Maulvi Sayeed-ud-din, if he was aware of the progress of the case as he must have been, ough .....

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osal on a date not fixed in the case. 93. Their Lordships characterized this as a fraud upon the Court. We do not read in that judgment anything suggesting that the conduct of Babu Hito Rai was fraudulent; for the case of the plaintiff at that stage seems to have been that Babu Hito Rai had merely exceeded his authority. We are clearly of opinion that the signing of the petition of compromise by him was superfluous but not fraudulent as the petition was signed by the lady herself and admitted to be correct before the presiding officer of the Court. Having achieved her object in getting the decree set aside by throwing a little mud at Babu Hito Rai, the lady began taking work from him, and then at the time of the hearing of this case having more mud thrown at him. Suggestions were made during the cross-examination of Babu Bhairo Prasad and Babu Hem Chandra Bose that Babu Hito Rai was in collusion with the defendants. 94. The recklessness of this suggestion will be apparent from the fact that the ink of the judgment of the High Court was hardly dry when, after the plaintiff had succeeded in getting a reversal of the decree on the ground, amongst others, of want .....

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as helplessly defrauded. 97. Babu Hito Rai signed the petition, and he could not have done so unless he was satisfied that the lady agreed to the terms mentioned therein. However we can find no excuse for the plaintiff not examining Babu Hito Rai. The compromise being over, the party left for Bhagalpur. According to the defendant Bodh Krishna Jha, Ram Krishna Jha and Ram Bahadur accompanied them to Bhagalpur. According to the evidence for the plaintiff these three men stayed at Monghyr and left the next day: Ram Krishna and Ram Bahadur went to Laheriaserai (Darbhanga) and Bodh Krishna went to Supaul. We are inclined to accept the defendant's version. Babu Bhairo Prasad says that after congratulating Mr. Ram Krishna Jha he suggested to him that now that the case had been compromised, Ram Krishna Jha should accompany the lady to Bhagalpur and see that she was comfortably settled down. There is a very serious contradiction between the evidence of the only two witnesses on this point examined for the plaintiff, Bodh Krishna and Ram Bahadur. Ram Bahadur says that next morning (after the compromise) Bodh Krishna went to Supaul from Sahehpur Kamal via Mansi while .....

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here is an artistic touch in the evidence of the witnesses who have been produced for her. There is the evidence of the lady describing the incidents which took place from Simaria Ghat to Benares. The witnesses who have been produced to corroborate her are those who come in contact with her story only one at a time and they touch only the fringe of the story. As to what transpired at Simaria Ghat, there is the solitary evidence of Rasdhari Kumar, and he only hears the last part of the conversation between Suraj Mohan and the lady, and that was that Suraj Mohan told the lady "come and take your Raj." At Monghyr only one witness Bodh Krishna Jha came near the lady, and that also for a few minutes. There was no business talk between them. There is no other witness to depose as to what happened at the house of Baiju Mandal. Ram Krishna Jha, who also saw the lady though for a few minutes, has of course not been examined. As to what happened at the Monghyr railway station, there is again the evidence of only one witness Bodh Krishna Jha who was in the waiting room for a few minutes just to see the payment of the money. Ram Krishna Jha who was there has not been exami .....

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e protection which is given to pardanashin ladies of this country is not peculiar to them. Such protection has always been given by the Courts to persons who are weak, ignorant and infirm, and unable to look after themselves. In such cases generally the person claiming protection has to prove that as a matter of fact he was on account of the weakness of his power of understanding and intellect liable to be imposed upon by those who would take advantage of his position, and therefore needs protection. In the case of pardanashin ladies however the law presumes them, from the very fact that they live in seclusion, to be incapable of protecting themselves and therefore entitled to protection. We do not propose to refer to all the cases placed before us on this point during the course of the arguments. Some of them have been referred to in the judgment of Mookerjee, J., in the case of Satish Chandra Ghose v. Kalidasi Dasi: AIR 1922 Cal 203. The principle laid down by a long course of decisions is however clear and undisputed and may be thus stated. 105. The Court when called upon to deal with a deed executed by a pardanashin lady must satisfy itself upon the evidence, first, .....

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s quoted with approval by Sir John Wallis in the case of Mt. Barkatunnissa Begum v. Debi Bakhsh and applied in the case of Tara Kumari v. Chandra Muleshwar Prasad Singh. It must be borne in mind that what is given to pardanashin ladies is a protection, They are under no disability, and if transactions entered into by them are lightly interfered with as if they were incapable of freely entering into contracts, it will be dangerous for the ladies themselves. Nobody would in that case ever transact business with them, if he could help it, and the protection will place them under a great disadvantage. In the case of Kali Bakhsh Singh v. Ram Gopal Singh (1913) 36 All 81, Lord Shaw in delivering the judgment of their Lordships observed: Their Lordships, as already mentioned, have fully in view the fact that the lady was a pardanashin lady, but the evidence as to her strength of will and business capacity, and the fact that the deed as granted is not in the circumstances of her life in any way an unnatural disposition of part of her property, go far, taken together with the evidence in this case, to convince them that the deed was granted by her as the .....

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erstanding of the whole matter, advise the lady that the deed should be executed. 110. In the case of Ruhulla v. Hasanalli Degumia AIR 1228 PC 303 the Privy Council held that where the execution of the deed was not questioned, and the disposition of property made by it was so natural that the lady would have had every motive to make it, and it was further proved that she knew and approved of what was being done, the transaction ought to be upheld. They repeated the observation made in Kali Bakhsh Singh's case (1913) 36 All 81 that the legal protection of pardanashin ladies should not be transmuted into a legal disability. We have therefore to consider the position of the lady, her intellect and power of understanding, and her business capacity, the nature of the transaction and the person with whom she was dealing. The transaction in this case is not the disposition or transfer of any property vested in and in the possession of the lady. It was a compromise of a disputed claim in a pending suit after her two attempts in the two will cases, to establish her title to the property and defeat that of Suraj Mohan, had fail .....

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. 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 death; but several of her Hindi writings are before us and, as we have already stated, they indicate a practised fluent and well-trained hand. 114. While giving evidence in this case, she would often insist that a question in cross-examination should be put to her in the Maithili dialect. On other occasions, when off her guard, she made no difficulties about understanding questions put in Hindustani and actually answered them. Whenever any awkward question was put, she would ask the question to be repeated and make a number of excuses in order to get time to answer. She was subjected to a lengthy cross-examination in this case, and on each occasion, when in difficulty, she always had some intelligent explanation to offer. If nothing was available to explain some events, her puja and the annoyance of Mr. Ram Krishna Jha and Babu Murari Prasad were promptly mentioned. 115. Her evidence will show that she behaved very well in the examination in chief, but as soon as her cross-examination commenced, she began to fence .....

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er 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 read over to her. We have already pointed out that this is not a credible story. We have said that the signature portion on the petition contains a statement that she had read the petition, and the whole of the receipt is in her handwriting. 119. She herself says that when the petition was brought to her for her signature, she asked whether ₹ 20,000 was paid to Ram Krishna Jha, and that she did not sign the petition till the money was actually paid, and it is on the face of it impossible to believe that she signed it without satisfying herself that it contained the terms which she had agreed to. 120. Now coming to the nature of the transaction, it was, as we have said, not a transfer of any property vested in the lady, but a compromise of a disputed claim in a pending suit. It has nowhere been suggested either in the long argument which has been addressed to us or in the petition under Section 151, Civil P.C., or in the evidence of the lady that she did no .....

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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 surrounded by the people of Suraj Mohan, and there was also a plea of want of explanation and want of independent advice. Her story of being kept under restraint in the house of Baiju Mandal-the story that peons were kept to guard her can be dismissed at once. 124. It is not mentioned in the petition. For the first time it was introduced in her evidence and (in order to explain this) she said that she heard it later from Bodh Krishna Jha. What sort of restraint it was will be apparent from the fact that she had to admit that she used to go daily in the morning to the river for her bath in the Ganges and that when she wanted to come out of the house to go to the railway station there was nobody to stop her. The real contest however has been that the terms as agreed to by her were fraudulently changed and that she signed the petition of compromise on trust. We have disbelieved this and have held that she agreed to th .....

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t 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 prove that the intellectual deficiency was made good by proper explanation given to her. 128. It will thus be seen that the two cases stand upon two different footings. The case of the appellant was under the first head, but it has also been argued under the second head. We have said that the intellectual deficiency of the lady concerned must be proved to have been made good by proper explanation giver to her. What that evidence should be will vary from case to case and from lady to lady. No particular mode or quantum of proof is needed. There may be cases in which on the admitted facts of the case the Court, taking into consideration the personality of the lady and the circumstances of the case, is satisfied that the onus has been discharged, that there was no actual deficiency to be made up and that the lady concerned did fully understand the transaction in question. In our o .....

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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 that the lady knew every inch of her case and fully appreciated it. The lady claims to have known that under the Mithila law she was the joint owner of the estate with her husband, and to have been told of it by an eminent barrister. She was so firm on this point that on one occasion during cross-examination she resented the estate being called her husband's estate and maintained that it was equally hers. We have also held that Maulvi Sayeed-ud-din did explain to her the nature and extent of her claims in the suit. We have further held that the negotiations of the compromise emanated from her, and that she herself settled to terms partly at Simaria Ghat and partly at Monghyr. 133. It has been proved beyond all doubt that the draft of the petition of compromise which was prepared under her own supervision was read o .....

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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 in this case and that no fresh suit is necessary. But assuming that the contention of learned Counsel is well founded, even then an explanation of such an intricacy of law was not necessary. It was after all matter for lawyers to settle. We have held on the circumstantial evidence in this case that the draft was not prepared and settled by Maulvi Sayeeduddin, The petition of compromise moreover was as a matter of fact signed by Babu Hito Rai. 137. If a person informs his lawyer of the terms on which he has compromised a suit and asks the lawyer to prepare a draft, and if that lawyer prepares a draft, that draft would embody his advice. Babu Hito Rai, it is true, had no power to compromise the suit, but he was certainly the lady's legal adviser; and if a draft was .....

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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 competent to form an opinion of her own whether she should retire from the fight on a maintenance of about ₹ 1,300 per month with a decree for past maintenance amounting to ₹ 1,00,000, and a cash payment of ₹ 17,000. Though, as we have said, there is no evidence that anybody advised her to compromise on these terms, all these persons who could have advised her in this respect were available to her and were present and were in touch with her. 141. It is not the duty of the defendant to prove the actual conversations which took place between the lady and her friends and advisers. Expecting this would be expecting impossibilities. In fact, had any evidence of advice having been given in the presence of the defe .....

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nthly 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 Mitra: AIR1925Cal866 . There the learned Judges set aside a compromise entered into by counsel on behalf of a pardanashin lady as being manifestly unjust and unconscionable, relying upon the care of Neale v. Gordon Lennox (1902) AC 465. When the matter went to the Privy Council, the decision of the High Court was set aside and the case of Neale v. Gordon Lennox (1902) AC 465 was distinguished in Sourendra Nath Mitra v. Tarubala Dasi. It is important to note that their Lordships held that Order 23, Rule 3 "does not in terms appear to confer a discretion on the Court." They however clearly guarded against being understood to say anything which might prejudge a .....

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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 that under the Mithila School of Hindu law the lady had an indefeasible case for the estate and her suit was bound to be decreed simply on the examination of that law; that even if she had lost her claim to the estate, she would in any event have got her personal properties, i.e., the jewellery, gardens, etc., and would in any case have been allowed a maintenance on a much higher scale, and that the sum of ₹ 100 per month provided in the will was a legacy and would not have disentitled her to maintenance according to the means of the estate irrespective of it.< .....

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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. 152. In this case however we are dealing with a pardanashin lady who has set up an issue of fraud; and want of understanding and of appreciation was strenuously argued before us. We are now at a stage when we are examining whether this compromise should or should not be recorded; or, to be more explicit, whether the order of the Subordinate Judge for the recording of the compromise should be upheld. In our opinion, at this stage it will not be wholly irrelevant to examine in a summ .....

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f 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 get a maintenance of ₹ 12,000 per annum for ten years prior to the compromise and thereafter at the rate of about ₹ 1,300 a month in spite of the estate remaining indebted would have been much too liberal and indeed extravagant. If we take into consideration the position of the estate after it is relieved of the debt, the maintenance at this rate would come to about l/5th or l/6th of the income, even on the appellant's f .....

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onth (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 maintenance connected with the family of the Maharajadhiraj of Darbhanga, where the income of the estate was ₹ 33,000 per annum and the estate was in debt, the Court allowed ₹ 4,200 per annum or about 1/8th of the income (Ex. Y-2); and this was upheld by the Privy Council in Mt. Ekradeshwar Bahuasin v. Homeshwar Singh: AIR 1929 PC 128. A decree of the Privy Council in the case of .....

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recious 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 be cast upon her by the passage. It would appear to be a duty to be performed by her only if she takes the husband's estate. 164. Therefore it cannot be urged as a general proposition on the strength of this passage that in the absence of .....

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e 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 of her husband. In fact there is a very serious controversy as to what the lady did at Allahabad. She alleged that she not only performed the sajjadan and fed the Brahmins but offered pi .....

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te 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 evidence has not all been adduced for the obvious reason that the matter was not directly in issue. From the fact that the ar .....

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ppointment 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 "waris" need not necessarily mean an heir entitled to succeed in c .....

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rges 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 opinion an actual decision on t .....

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only does one 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 b .....

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in Mithila. Reference has also been made to Chandesvara Thakur's Vivada-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 become .....

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ve equal shares to his wives, if no separate property should have been given to them by him or his father (see Yajnavalkya 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 ref .....

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of English law has received judicial notice in such decisions as Baijnath Prasad Singh v. Tej Bali Singh: AIR 1921 PC 62at p. 243 (of 43 All.): Where property is held in coparcenary by a joint 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 .....

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also similarly capable of being rendered by "shall be made" or should be made," the ambiguity being due to the employment of a participle of the same kind as was noticed in Balusu Gurulingaswami v. Balusu Rama lekshamma and Radha Mohan v. Hardai Bibi (1899) 21 All 460, where Lord Hobhouse had occasion to comment on the unfortunate fact 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 i .....

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ccurs, his treatment elsewhere of the verse of Yajnavalkya regarding wives being made equal sharers, what the Ratnakara has actually said on the point, and, further, Vachaspati Misra's treatment of Daya Vibhaga (partition of heritage or inheritance) generally. Whether other works of authority in the Mithila School do or do not take the same view, and if they should take a different view, which view ought to prevail, will also 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 .....

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p. 489 of the evidence)-have found not incapable of a reasonable translation. The knowledge of Sanskrit grammar that he shows at p. 500 and other places of his evidence is far from impressive; his view leads to the manifest absurdity of requiring the consent of the donor to a voluntary gift, and when it is put to him whether he can conceive of such a gift without the donor's consent, his answer is: I think as a layman I don't think myself quite 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, Gh .....

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(hetuvannigadam) on p. 36 of the Chintamani ought to be (hetumnanigadam) leads one to wonder how far he had made himself really familiar with this branch of Sanskrit learning so as to be aware of the fact that Raghunandan, the "Smartta Bhattacharyya"of Bengal, demonstrated the correctness of the former reading of Jaimini's adhikarana long ago (see Dr. Priyanath Sen's Interpretation of Negative Precepts in Hindu Law in the notes portion of 4 G.L.J. at p. 65n). 208. The Professor has no hesitation 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 .....

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ome ground or other, rather than admit that his departures from it in cross-examination were biassed (see pp. 137-8 of his evidence). "No human work," says the witness: is perfect, and if I were asked to revise the work, I myself would find thousands of places in 7 or 8 volumes of the translation where it could be improved: the worst of all there is the printer's devil at work....... My knowledge of English is far from perfect, and as I have already said that in many places the translation could be improved even by myself. 212. We do not 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 .....

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e or the other, and it has in fact been so used by the Bar and will be so referred to in this judgment, the names of the translators being, however given for the sake of facility in tracing and appreciating the basis of each particular argument. Apart from the technical objection to expert evidence on Hindu law, the cross-examination of the translators erred sometimes in going too far and sometimes going not far enough. As an example of the latter, we have Dr. Jha's reference to certain passages in the Vivada Chintamani where the term anvaya does not include the wife; it was not noticed by any translator nor put to Dr. Jha-if indeed 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 commis .....

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ween these. If (it be said) that, because of Apastamba's text 'There is no partition between husband and wife,' there cannot at all arise the contingency of a partition between them; (the reply is) because of their being authorized jointly to set up the (sacrificial) fire in accordance with such texts as (1) "wife and husband should set up the fire"; as also because of such Vedio texts as 'with the cincture (the priest) initiates (in sacrifices) the sacrificer; with the sacrificial thong, the wedded wife,' (2) and also, 'the wedded wife (2) watches the sacrificial offering,' (and) 'the sacrificer is tying the bundle of kusha grass,' there is joint 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 .....

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e original speaks of (vakya-sesha) which literally means "the rest of the sentence." 222. The argument for the appellant is that Vaehaspati Misra, unlike Vijananesvara, chose not to take notice of these two aphorisms and thus, unlike him, restricted. Apastamba's text to religious ceremonies. But though Vijnanesvara alone did proceed to take notice here of Apastamba's 19th and 20th aphorisms which refer to property, it has to be observed that he did not use these additional aphorisms for negativing partition between husband and wife. On the contrary these aphorisms lead him expressly to say that the further text "has indicated the ownership of the wife over wealth, and not the absence of a division." It is therefore impossible 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.< .....

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be renderings of one and the same sentence (dhanavibhagastu tayornasteeli vakyarthasyashankapinasti.) They differ from each other substantially, and when questioned in this connexion, the witness for once thought that there was some discrepancy in his answer, and said that the whole thing would have to be studied before he could answer the question what corresponded to the second piece above. This was at the end of a long day, and after studying the text the witness said the next day that the first piece was intended to be the marginal note, but had been wrongly transposed by the press to the main body of the translation, and that the second piece was the actual translation of the Sanskrit sentence given above (see his evidence at p. 429). 227. This answer is even more amazing for a pandit 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, .....

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er he was referred to a number of verses from Manu where these and other words are used to indicate a wife of as high a standing as the patni: see Manu IX. 45, IX, 8, IX. 46, IX. 6, 7 & 9, V. 156 read with IX. 3, & V. 153). As will be seen later, the Dvaita Parisishta modifies the objection on this ground, but the difference does not seem to be of any importance for appellant's purposes. (1) The case in the original is the genitive, which often connotes agency. 230. The words (tasya nyayatvena vachanabadhakatvat) which have been rendered "since being ratiocinative, it cannot override a text," following Dr. Ganganath Jha, have been rendered as follows by the appellant's translators: (1) "It does not go against the above mentioned text on the ground of propriety"-Pandit Ishwari Dutta Daurgadatti, 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 lite .....

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, line 4 on p. 254 near the beginning of Vachaspati Misra's comment on Yajnavalkya II. 52. 233. As has been already observed, there has been much controversy about the exact import of this comment. Professor Sharma takes the passage to mean that the purva-paksha-the "objection" that with the wife's ownership in the husband's wealth there would have been partition by the wife from the husband had there been no express prohibition-is at first simply denied, and that the purva pakshi (supposed objector) then quotes the line from Narada, whereupon Vachaspati Misra replies that the patnyadhikarana lays down "no prohibitory text against woman's capacity of holding wealth," and then concludes that there is of course partition between husband and wife by virtue of the text "wives shall be made equal sharers," adding that 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 a .....

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Apastamba's text is no bar-but could only be a denial, not necessarily in toto, of the premise or the conclusion or both. 237. It is not impossible that the denial was primarily intended to refer to the premise, for Vachaspati Misra gives as his reason the text of Narada and proceeds to point out that the patnyadhikarana which is the basis of the premise has no bearing on the incapacity of woman to hold property on her own account which incapacity is based on a text that he points out, cannot be shaken by mere logic. If this be the right way of interpreting the comment, it would appear that by completely demolishing the premise of the supposed objector, Vachaspati Misra was inclined, on the authority of Narada, to take the view that there can be no partition between husband and wife, notwithstanding the limitation of Apastamba's text to sacrificial performances and notwithstanding the patnyadhikarana. 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) & .....

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reement with that Mithila authority when necessary. As an example, reference may be made to a passage at p. 128 of the Calcutta edition (corresponding to p. 199 of the Bombay edition) where Apastamba (II. 6. 13. 13) is commented upon. Tagore's translation of this passage at p. 233 is wholly inadequate, but Setlur's rendering (at p. 246) is close enough. "The Ratnakara reads "while living;" but that is incorrect; for the fact of his being alive being evident from his making the partition, the word is superfluous." A conflict between the Ratnakara and the Vivada Chintamani need not therefore be assumed where this can be avoided, and it does not require a strained interpretation to construe Yachaspati Misra's reply in the comment under consideration without a conflict between him and the Mithila minister of justice and commentator Chandeswar Thakur who wrote the Ratnakara. 241. On this footing, the concluding sentence, though in form an 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 .....

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ext and as shown by a predecessor of standing in Mithila; this would at once remove whatever difficulty may have appeared at first sight-in view of such texts as those of Apastamba and Narada-in applying the word "avibhakte" to husband and wife, and would suffice to make the verse not unintelligible. Vahaspati Misra is a writer of standing in Mithila, a province "celebrated as a seat of learning from ancient times" (see p. 11 of Sarkar and Chatterjee's Introduction to their Translation of the Vivada Ratnakara); and it is impossible to imagine that he would have failed to see what as a matter of ordinary logic was a sufficient answer to the question discussed by him. 245. In giving his answer he does not seem to have considered it necessary-nor could it be regarded as essential-to quote his authority in full. He does not even name that authority-Yajnavalkya-probably because not only was the text so well-known but Yajnavalkya's full text on the point had also been already dealt with 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, .....

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e in which Yajnavalkya lays down that wives (shall/should) be made equal sharers appears to be as follows: In the first place, the father is under no obligation to divide his self-acquisitions. 248. He may however choose to divide them. If he does so, he is further under no obligation to divide them into equal shares. In the event of his choosing to divide them into equal shares for his sons, he is required to make his wives equal sharers. But even in this last case, there is the proviso or qualification that the wives to be made equal sharers have not received as much stridhan from the father or from the father-in-law. If, as has been urged for the appellant, the word :, (karyah), imports a (vidhi) or positive obligation, it is only when the husband chooses to divide his self-acquisitions with his sons, and further to divide them equally, that the obligation arises, and even then it is not an unqualified obligation, for wives need not still be given the same shares as sons if they should already have received some stridhan. 249. Clearly, this falls far short of recognizing the wive's right unconditionally to demand a partition from the husband. What is re .....

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stom and usage, to say nothing of the fact that it is not easy to conceive of a Hindu custom requiring a husband unconditionally to divide his wife and thus impliedly giving the wife an unqualified, right to demand partition from him. 252. It is true that in a discussion on partition during the lifetime of the father, the wife comes in only incidentally, but is that a good reason for holding that Vachaspati Misra with all his reputation for acuteness saw no inconsistency at all in giving her a very limited right in the earlier discussion and freeing that right, quietly and unnecessarily, from the conditions then recognized on that very text when he came to deal with the topic of Vibhaga-nirnaya or merely how to determine whether or not a partition has been already effected; Vachaspati Misra's high standing as a commentator must itself make such a construction of his comment impossible. Nor can it really be seriously maintained that the word (samansikah), equal sharers, does not involve a reference to other parts of Yajnavalkya's verse. 253. As the earlier discussion shows, the wives' equality of shares was there taken by Vachaspati Misra to mean th .....

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t this did not prevent him from holding in his comment on Yajnavalkya II. 52 (which has already been referred to) that though the wife has "ownership" over wealth (dravya-svamitva) she is not entitled to partition (dravya-vibhaga) at her own will, but (may receive a share) at the option of the husband on the strength of Yajnavalkya's later verse: if he makes the allotments equal, his wives should be made equal sharers (or as Gharpure puts it, 'should be given equal shares'). 256. As was observed by a Full Bench of the Allahabad High Court in Sham Lal v. Banna (1882) 4 All 296 too much stress should not be put on any of the (mitakshara and other) texts which speak of the ownership of the wife in her husband's property. She is a co-owner in a subordinate sense, and though she is entitled to a share in certain circumstances and may thus be a necessary party to a suit for partition of the family property, she has no such interest as will enable her to maintain such a suit. Mr. Jha lays stress on the fact that while commenting on Yajnavalkya II. 52 Vijnanesvara, unlike Vachaspati Misra, expres .....

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sufficient to confer upon her the right to demand partition from her husband. Nor is the wife the only person who, inspite of a definitely recognized antecedent title- (svamitva), ownership-in her husband's property, is held by the Mitakshara to be disentitled to claim partition; the son also takes an interest by birth in the paternal (as well as the ancestral) property-(Colebrooke I. 1. 27. and I. 5. 10), but that does not entitle him to claim a partition of the paternal property if the father be unwilling and the mother not past child-bearing. An antecedent title- (svamitva), (svamya) (svatva) are all among Mitakshara ways of describing it-does not therefore under the Mitakshara necessarily give a right to obtain partition. 260. There is a palpable fallacy in the argument for the appellant that the wife's vibhaga implies her antecedent title, which in its turn implies her right to claim a partition. If you take the antecedent title from the Mitakshara conception of vibhaga, it must plainly not be overlooked that the Mitakshara does not regard such a title as importing an unconditional right to claim partition. The title to be inferred from the use of the word v .....

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uced (Colebrooke I. 1. 27) by an elaborate discussion of the question "whether property arise from partition, or the division be of an existent right" (Colebrooke, I, 1. 17), enables that authoritative commentator to hold that "a distribution of the grandfather's estate does nevertheless take place by the will of the son," even when the father does not desire partition-(Coledrooko, I. 5. 8), or as he puts it again a little later, that "the father however reluctant, must divide with his sons, at their pleasure, the effects acquired by the paternal grandfather"-(Colebrooke, I. 5. 11). In the event of the sons exercising this right of obtaining a partition of the ancestral property, Vijnanesvara has already held in his comment on Yajnavalkya II. 115 that: if the wealth descended to him from his father, an unequal partition at his pleasure is not proper; for equal ownership will be declared"; Colebrooke, I. 2. 6. 264. Thus according to the Mitakshara, the ancestral property may be divided not only at the father's pleasure-that was apparently beyond question-but also on the son's demand, and in either case the division .....

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sons according as the property in question is self-acquired or otherwise. We have already quoted a passage where the father's independent power (svatantrya) over his self-acquisitions is spoken of. A little earlier just before the quotation from Manu (IX, 209), we have "and the powerlessness of the sons is also only in respect of such property" (Setlur, p. 245), as the conclusion of a comment on Vishnu which begins: (Svayamupattam) self-acquired. Similarly also as to property recovered, conformably to the text of Manu. There the fact of the non-injury to the paternal wealth is material. But the wealth acquired by using the paternal wealth is certainly common (sadharana)": (Setlur, p. 244) 266. Ancestral property and property acquired by using it is thus, according to the Vivada Chintamani as according to the Mitakshara, common to father and son, while over his self-acquisitions the father has svatantrya or independent power. Vachaspati Misra has a small section on "property not subject to partition", (Tagore, p. 249), which, as Mr. Jha has pointed out, also indicates the son's interest by birth in the ancestral property. When V .....

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He has urged that Vachaspati Misra's concluding sentence on Yajnavalkya's suretyship verse is not confined to self-acquired property. It seems to us however that that sentence merely bears on the possibility or otherwise of a separation in estate between husband and wife, irrespective entirely of whether the property is ancestral or self-acquired. The question of such a possibility of a separation merely arose on the word (avibhakte) in Yajnavalkya's verse, and the section on Vibhaga Nirnaya was primarily meant for a discussion of the wholly different question of how to determine whether or not a disputed partition has in fact been affected. 270. The wife's right to the ancestral property is admittedly not dealt within the section on partition during the lifetime of the father. Mr. Jha has urged that this was only to be expected from the title of the section. But it is to be borne in mind that it is in this section that such right as the wife has to a share in her husband's self-acquisitions is discussed, and that in spite of the title the section also contains discussions on topics treated in the Ratnakara, in Chs. 3 and 4 under the titles "part .....

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imply the birth of the wife into the gotra of the husband. The Mitakshara was also apparently of the same view, (the dispute really being about her gotra after death) but is not prevented by that doctrine of the wife's fictional birth from holding expressly that the wife has no right to claim a partition, while basing the son's right to claim a partition, of ancestral property in the hands of the father on his right by birth. 273. Mr. Jha has not referred us to any passage in the Vivada Chintamani from which it can be inferred that Vachaspati Misra took the view that by her fictional birth into the husband's gotra the wife acquires such a right or interest in his ancestral property as will enable her to claim any partition from him. Her right to maintenance is a different matter, and may, as Mr. Jha himself has contended, be asserted against the husband's property whether self-acquired or ancestral. Her so-called right to a vibhaga of his self-acquisitions must, on Vachaspati Misra's discussion in the Jivat-pitrika-vibhaga, be taken to be subject to the conditions in Yajnavalkya II. 114-5. It seems to us that Vachaspati Misra's concluding sentenc .....

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ment of the Ratnakara in full, but merely gives a summary of it by saying in effect that the Ratnakara recognizes partition between husband and wife on the basis of the text about wives being made equal sharers. The Ratnakara does not in fact restrict the quotation from Yajnavalkya to the second-quarter of the verse II. 115, but gives the first-quarter as well, which may be literally rendered "if (he) should make equal shares..." It is thus clear that the Ratnakara did not lay down an unconditional partition between husband and wife, and as from the context it is clear that Vachaspati Misra merely followed the Ratnakara, we cannot assume that he intended to be taken to have read the Ratnakara in any other sense. 276. It is indeed, unlikely to a degree that one of the leading authorities of the Mithila School should have represented another well-known authority of the same school as laying down unconditionally what the latter had clearly indicated to be subject to conditions by saying kvapi and actually quoting the first quarter Yajnavalkya II. 115. We now come to Vachaspati Misra's treatment of Daya Vibhaga (partition of heritage, or inheritance) generally. .....

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those passages in the Vivada Chintamani where it is shown that the wife of an undivided deceased brother is not entitled to a share at a partition of the family property. 280. The case moreover so elaborately sought to be made out for the appellant that the Vibhaga Nirnaya gives the wife a right to claim partition, that the Chapter on Resumption of Gifts makes the wife's consent essential to a gift of his entire property (sarrasra) by the husband, and that taking these special Mithila propositions together, the appellant was a coparcener of her husband is moreover argued for a widow who desires to have her husband's bequest of the bulk of the property to a nephew under a will purporting to bear her signatures set aside. This aspect of the matter was not always borne in mind when the Mithila wife's rights as a wife were argued. If they do not entitle her to take the husband's property by survivorship-and this cannot be disputed on the passages at pp. 232, 239 and 291 of Tagore's book-it does not seem that in the circumstances of this case the appellant stands to gain anything by establishing her alleged rights as a wife if they came to an end on her hu .....

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kanksha or expectancy already referred to-why, while on the topic of the Saudayika (stridhan), he considers it necessary to deal with property inherited by a woman from her husband. Nor can the classification of bhartri-daya be regarded as other than exhaustive on the ground suggested by Mr. Jha, viz., that it does not include the share that the wife is entitled to in the husband's self-acquisitions under Yajnavalkya 11-115. That share is after all given by the husband, and the conditions in which it must be given, as we have already observed, are not such as can be brought about by her, but depend entirely on his own volition. 283. There is therefore no reason why it should not come within Vachaspati Misra's second class of bhartri-daya. Anshare obtained by the wife on a partition forced by her as a matter of right upon the husband would be on an entirely different footing and seems to be so foreign to the spirit of Hindu law that we need not be surprised if it does not fit very well into and is not noticed in Vachaspati Misra's scheme. It is also significant that in this section on Stridhan Vachaspati Misra quotes Yajnavalkya II. 148 and explains:

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y the second quarter of Yajnavalkya II. 115. It is interesting to observe that he then deals with and negatives a contention based on Jaimini's discourse on the wedded wife. The contention is as a matter of fact slightly different from that dealt with by Vachaspati Misra, because a distinction is made between the patni and other wives. But Keshava Misra's reply to the contention is exactly the same as that of Vachaspati Misra up to but not including the concluding sentence which has been the subject of so much argument before us. If he leaves out Vachaspati Misra's concluding sentence, the reason plainly is that he had already stated that position before turning to the objection based on the (patnyadhikarana). 287. The Mitakshara which is also an authority in Mithila denies to the wife any right to demand partition from the husband. The position thus is that out of four Mithila authorities, the Mitakshara is expressly against the appellant; the Ratnakara, by necessary implication from the express statement that the wife sometimes gets a share in accordance with the first half of Yajnavalkya II. 115, is also against the contention of the appellant t .....

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ts, joint property, a son, a wife, a pledge, one's entire wealth, a deposit, what has been borrowed for us, and what has been promised to another"-(Translation by Dr. Jolly, loc. cit., p. 342) (a) Corresponding to 'Deya'; (b) 'Adeya'; (c) 'Datta; and (d) 'Adatta,' respectively in the original Sanskrit. He makes the following comment on the verse: Joint property' is that which is owned by several persons; there, (1) in regard to joint property, a son and a wife, the gift fails of accomplishment by reason of (the donor's) want of independence. And want of independence (arises) in regard to joint property from the fitness of things: in regard to a son and a wife, who do not consent, (it arises) from the authority of texts: in regard to the entire wealth of one who has (any) anvaya and to a thing (that has been) promised by any person at all (to another), (it arises) only from the authority of texts: thus a gift is precluded by want of ownership in the case of a pledge, a deposit and what has been borrowed for use, and only by the authority of texts, in spite of (the donor's) independence, in t .....

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does not say whether or not this is his view also. According to the appellant the use of the word "however," corresponding to "tu" in the original, indicates that this was not the view of Vachaspati Misra himself. The point is arguable, but it will be remembered that it would have been destructive of the appellant's case on Vachaspati Misra's concluding sentence in his comment on Vajnavalkya II. 52 if the same word occurring in that sentence had been construed in the way now contended for. Reference has already been made to the number of senses in which the particle "tu" can be used in Sanskrit; its precise significance in any particular sentence must depend on one's interpretation of the whole context. It will be seen later that Vachaspati Misra not only holds that the entire wealth may be given with the consent of the anvaya, a term usually taken to mean issue or descendants, but also shows that consent is only necessary when what is given is madhyaga, joint property. 293. Vachaspati Misra then quotes two verses of Narada, IV. 4 and 5, which have been translated by Dr. Jolly as follows: An Anvahita (1) deposit, a yak .....

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o:p> 295. This is the comment that has given rise to much discussion. In para. 1 the appellant's interpretation of the compound (putradaradyanvayanam) has been shown above that of the respondent. Some light will be thrown on the matter in controversy by the following continuation of Vachaspati Misra's comment above: As to the son's consent itself, Vasishta (says): 'Man formed of uterine blood and virile seed proceeds from his mother and his father (as an effect) from its cause. (Therefore) the father and the mother have power to give, to sell, and to abandon their son' (b). Here too, the case of an only son being special, he himself lays down: 'But let him not give or receive (in adoption) an only son; for he (must remain) to continue the line of the ancestors. Let a woman neither give nor receive a son except with her husband's permission' (b). An only son, though (he be) agreed to the gift, may not be given, since the text provides a reason, as it were, by laying down 'for he (must remain) to continue etc. (a) To express the effect of "tu" in the original. (a1) Sic. in the Calcutta edition.< .....

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nt of "these" there may be a gift of "them." He concludes this portion of the comment with the observation: Others, however, hold that the entire wealth may not be given even with the consent of the anvaya, as gift is prohibited because of the mere existence of it (i.e, anvaya), Regarding the identity of "these" three things (if we may call them so for convenience) whose alienability or otherwise is discussed, there is no dispute; they are a son, a wife, and the entire wealth, though in Katyayana's first verse the wife is placed before the son. It also seems clear that Vachaspati Misra's view, as expressed in this part of his comment, was that these three things may not be given even at a time of distress without the consent of certain persons but may be given with their consent. It has indeed been argued, in this Court, for the appellant that Vachaspati Misra's concluding statement of the opinion of "others" on Katyayana's verses-that the mere existence of anvaya bars a gift of the sarvasva-represents his own view; but that was not the appellant's case below. 299. It is true that these San .....

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agreement among three persons including the donor himself. Vachaspati Misra first speaks of the son and wife being vimata, non-consenting, when commenting on Brihaspati's verse. He again refers to the vimati of certain persons before coming to the verses of Katyayana and this also (like the first) in a sentence which does not include the donor among the parties whose vimati is mentioned. 302. It will be seen later that in the corresponding passage the Ratnakara speaks of the ananumati, non-consent, of the anvaya as distinguished from its sammati, consent. These terms make the dichotomy quite clear. Vachaspati Misra evidently used the word vimati for ananumati, and the context shows that when he spoke of the vimatt of three persons (or bodies of persons) he did not mean disagreement among them but only their non-consent-the absence of their consent-to the donor's acts. In order however to appreciate the point in issue clearly, it is desirable first to deal with Katyayana's verses which intervene between the two parts of Vachaspati Misra's comment. These verses do not expressly speak of any consent at all. All that they appear to do is to forbid, .....

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olebrooke had before him. In the verse before us the only word that could at all correspond to Colebrooke's translation "without the assent of the persons interested" is anichchavah. 305. In the first sentence of the comment of Jagannath as rendered by him, Colebrooke shows parenthetically that the persons interested are the son, wife, kinsmen and so forth, and this points to a different original than the one before us. In a foot-note on this sentence he says that he has omitted Jagannath's, grammatical disquisition justifying the use of the masculine gender in the instance of a participle governed by unconnected words of the three genders. But this would apparently refer to the predicative participle neyah; and Mr. Jha with his knowledge of Panini has not been able to suggest how any rules of grammar could make the attributive adjective anichchavah, unwilling, applicable to dead matter like sarvasva, an entire estate. Pandit Ishwari Dutt, who has translated anichchavah by "without their assent" actually gives a footnote to say that the persons referred to there are the wife, the son and the donor; but it does not appear .....

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asva occur in a different case or cases in the third quarter of that verse. 308. The appellant's interpretation has thus the disadvantage of including in those three" the atma mentioned not before, but after these three." Sufficient attention does not appear to have been paid to this aspect of the matter by the appellant's pandits. It must, however, be observed that too much stress ought not to be laid on Vachaspati Misra's pronouns, if reliance is to be placed on the Calcutta edition or even on the Bombay edition of the Chintamani, for the Calcutta edition in Clause 2 of the sentence speaks of the consent of "these" to the gift of "those," this last pronoun being also found in the Bombay edition. Apart, however, from the use of the pronouns employed in the comment, the interpretation contended for by Mr. Jha suffers from a double disadvantage in including the atma (oneself) among "those three" whose consent or otherwise is being considered, for this word (as already observed) does not occur in Katyayana's verse in the same (nominative) case as the wife and the son, and further it seems idle to require the consent o .....

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ed at p. 441 of Vol. 2 of Part 3 of the paper-book wrongly reads putradaradi instead of putradaradhi in Brihaspati's verse, and the Bombay edition wrongly reads putradaradi, instead of putradara, before sarvasva - pratishruteshu in the comment on that verse, showing how one is liable to add a wrong adi to putradara. 311. The same word-putradaradyanvayanam -is, however, found in the Bombay edition, and we have not been referred to any other editions or to any original manuscripts. The appellants has also filed a copy of the Vivadarnavasetu published at Bombay by the Sri Venkatesvara Press in 1888, which at p. 148 gives the same reading. This last work is however plainly unreliable to a degree. The publisher has solemnly prefixed a Sanskrit introduction called "request to the learned," in which he says that the work was compiled by a number of pandita under the orders of Ranjit Singh, the Lion of the Punjab. The names of the pandits are mentioned and agree almost entirely with the pandits who are mentioned at the end of the manuscript of the Vivadarnvasetu (the Digest of Hindu Law prepared in 1773 under the directions of Warren Hastings and given to English r .....

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see Colebrooke's Digest, Book 2, Oh. 4, Section 2, verse 28, para. 14 of Jagannath's comment, at p. 433, Vol. 1 of Higginbotham's edition of 1874. 314. This principle of interpretation is familiar to students of ordinary Sanskrit literature under the name of-yathasankhya and is also found applied by Jamini himself at least in one place: see his sutra IX. 3. 33 api va dvisamavayorthanyatve yathasankhyam prayogah syat; and an exact parallel is furnished by the Arabic (laff o nashr murattab). Vachaspati Misra in the section on Deya quotes Brihaspati, XV. 6 (translated by Dr. Jolly at pp. 342-3) which contains an example of the respective consent of stri (wife), jnati (kinsmen) and svami (supreme ruler) joined together in a dvandva compound, and which must plainly be understood on the yatha-shankhya principle. The importance of this principle is that it at once leads one to take the compound as a dvandva: putrah + dara + anvayah = putradaranvayah. Such a compound as a whole would be in the plural number, even though anvaya, the last member of it, be, as usual in literature, used in the singular number. Other reasons for adopting this reading would be that in his .....

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the gift of the son, the consent of daradi to the gift of the wife, and the consent of the anvaya to the gift of the sarvasva. This construction was resisted below on the ground that a bahuvrihi ending in adi is adjectival and cannot be compounded with nouns like putra and anvaya into a dvandva. No definite grammatical bar was however indicated, and Mr. Jha after being referred to about a dozen compounds, in which one of the members was a bahuvrihi ending in adi and used , as a noun, which were found on a random inspection of about ten pages of the Viramitrodaya, (Sarkar's edition from p. 55 onwards), gave up the contention that on account of the adi in the middle, putradaradyanvayanam could not be a dvandva, as suggested by the respondent, but must be a karmadharaya. It was after this that the respondent found an unquestionable dvandva of this character-putrapatnyadisansrishtinam- in the Mitakshara, II. 10. 1, which is thus rendered by Colebroke; "of the son, the wife and other heirs, as well as the reunited parcener"; the son in this rendering is the putra of the original, "the widow and other heirs," the patnyadi, and the reunited parcener, the sansrishti .....

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the difficulty of otherwise establishing the inclusion of the wife in the anvaya. Neither of the appellant's pandits was able to cite one instance either from classical Sanskrit literature or from Smriti literature where the word anvaya has been so used as clearly to include the wife. The word is derived, according to the evidence, from the prefix anu and the root "i" or "ay" meaning "to go." The prefix is usually taken to mean "after," but as pointed out by Professor Sharma, it also means "on," "along with" etc. The word thus means succession; association, connexion; race, lineage, descendants. We have been referred to V.S. Apte's Sanskrit-English Dictionary, which is so useful for its citations to the Dictionaries of MacDonell and Monier "Williams, and also to the monumental Sanskritworterbuch of Bohtlingk and Roth (St. Petersberg, 1855). There is really nothing in them to show that the word (anvaya) is ever used in a sense which would include the wife. 320. It is true that they mention "family" as one of the equivalents, but this is only in association with such words as race, lineage a .....

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towards the end of the last century, in which the word anvaya is said to mean the son, the grandson and others born in the vansha. In Raghu. I. 9 the poet speaks of the anvaya of the Raghus, and the word anvaya is translated as strips by Stenzler, being rendered in the same way on Raghuvansa III. 27. In Raghu. I. 12 the poet speaks of Dilipa being born in the anvaya of Manu, and Stenzler, renders this by saying "in ejus ... pregenie natus est ... Dilipa" the same expression in Raghu. VI. 41 is rendered "in ejus presapia natus...." In Raghu. XII. 33 Surpanakha is said to have mentioned her anvaya to Sita, and Stenzler renders this by "originem suum ... narrans." This gives an idea of the meaning of the word anvaya as equivalent to vansha. When the word occurs in a compound indicating an individual, the compound is usually dissolved in such a way as to bring out the fact that it means his descent, pedigree or stock. 323. Thus in Raghu VI. 46 Kalidas speaks of a certain king as nipanvaya and Malinatha interprets it as 'born in the vansha of the Nipas', the compound (abahuvrihi) meaning that he was "of the anvaya of the Nipas," .....

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d 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 word anvaya was taken by Vachaspati Misra to include the wife even if it cannot be shown that it is ordinarily so used. The wife's natural descent is of course different from that of her husband and cannot be altogether obliterated - see for example Yajnavalkya I. 53 and 254 - but does her connexion by marriage bring her within the denotation of her husband's anvaya? The only Smriti quoted by Vachaspati Misra in this connexion which mentions the anvaya with the sarvasva is Narada, and Dr. Jolly has translated saravasvam chanvaye sati in the verse as "the whole property of one who has offspring" this translation of course excludes the wife. 326. The Smriti-Chandrika, which is an exhibit in the case, plainly takes the word in this very context to mean (santana) which clearly excludes the wife (see the last line on p. 442, and Raghu. I, 34 where Stenzler renders by "prolis caussa," though we are not dealing with a woman's anvaya. Yajnavalkya in II. 175 says Nanvaye sati sarvasvam which Gharpu .....

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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 short. It also prints the concluding word of the verse as tadanvayan, but this seems to be a misprint for tadanvayah for the context does not require the plural, anvaya being a collective noun in ordinary use. 329. The parallel verse from Yajnavalkya II. 117 uses the singular; the Bombay edition, Dr. Jolly and the Vivada Ratnakara (p. 456), and also the Mitakshara which quotes the verse at II. 11. 18, all have the singular; and we have not been referred to any work which in such a context uses the plural. Vachaspati Misra in his comment on the verse seems to agree that the word means the sons of the daughters in whose default they are to take the property. Here again the context makes it impossible for the word anvaya to include the wife but it is noteworthy that Vachaspati Misra does not suggest for the word a wider interpretation than that of Vijnanesvara on Yajnavalkya II. 117. Dr. Jolly's foot-note on this verse at p. 189 of the Sacred Books of the East, Vol. 33, is that acco .....

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ment 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 statement already made that in default of one, another is to take the property. The meaning is that being without issue (anvaya), they inter se take each other's property. This will become clearer if it is observed that the second half of the verse speaks of abhave, "in default," and of nirbijanyonyabhaginah, "without issue, taking on another's shares." Vachaspati Misra in the first sentence takes the abhave to mean not the default of nearer heirs (as Colebrooke apparently did) but the death of one of the persons spoken of re-united or otherwise; according to the Ratnakara however, the word means bharyadyabhave, "in default of the wife and the like," but it has not even been argued that this makes any difference to the point that the appellant has endeavoured to make. The contention is that as Vachaspati Misra has paraphrased the term nirbijah by niranvayah, and has said that .....

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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 "A kinsman" (of the owner) - Sacred Books of the Bast, VII. 15, p. 289. As the verse prescribes different penalties for offenders according as they are or are not kinsmen of the owner, and as the latter are indicated by the term niranvaya, the contrasting term for the former would appear to be sanvaya and not svanvaya. Whichever reading is taken as the correct one, it does not appear that we have here anything very substantial affecting the question in issue. 334. Sanskrit grammar is too flexible to restrict us to any way of dissolving the compound svanvaya or the compound patyanvaya which has also been referred to from Medhatithi's paraphrase of the word sapinda in Manu IX. 59, so as to compel the interpretation of anvaya by itself as a relative: we may for instance compare the ways in which the compound sanvaya is dissolved and interpreted in this verse and in Manu II .....

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tion 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 two the word is used in an extensive sense, and on Manu VII. 9 Kulluk specifically includes the wife in the kula. But the word is not only capable, as already shown, of meaning part of the gotra but is used in Raghu III. 1 with the word santati, an Amarakosha synonym of vansha but here used in the sense of continuance or perpetuation. This shows clearly that the synonyms given in the Amarakosha are always interchangeable - a proposition which should have been obvious but was ignored in the reasoning followed by Professor Sharma. In our opinion the word anvaya in Narada's verse is not shown to have been taken by Vachaspati Misra to include the wife as belonging to the gotra. 337. The position thus is that according to overwhelming usage the word anvaya denotes the lineage or the descendants or posterity, that it is a collective noun, when referring .....

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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 in contexts where degrees of descent are material, and its precise denotation will have to be gathered as best as may. The gloss (dayo' nvayagatam), which occurs in the section on Deya and will be dealt with later, and Vachaspati Misra's later remarks about the necessity of consent, would seem to suggest that anvaya is restricted to heritable issue; Mr. Jha himself would confine it to heirs but not to issue or descendants. The word is also used in literature to mean retinue or attendants, but even the appellant does not contend that that sense is applicable here. 340. There is nothing in the present context to show that the wife is one of the persons included in that body of relations which is denoted by the word anvaya. In putting his own gloss upon the texts Vachaspati Misra, like other comme .....

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s 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 sentences, the first ending with the first sentence in the above rendering. Having regard to the contents of the various; sentences in the original, the punctuation appears to be defective. Vachaspati Misra continues: Consequently it cannot be resumed; thus a gift of what is not one's own cannot be effected, similarly in the case of immovable property also: so (says) the Smritisara. As to (3) consent, that is necessary only in the case of what is joint (4) and not what is not joint, He next quotes two verses of Brihaspati, XV. 4 and 5, which have been thus, rendered by Dr. Jolly (loc. cit. p. 342): When any field (or house) is given away, belonging to a number of houses or fields acquir .....

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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 that the consent of the wife is necessary, for this is consistent with reason, but not clothes, etc., which are received by the husband even for his own use, because that would involve extending the Smriti to unintended (lit. unseen) objects. Even in respect of inherited property, (2) (which is) undivided, (whether) immovable or moveable the consent of other sharers is necessary (for a gift to others).... The first point in dispute between the parties on this treatment of deya by Vachaspati Misra is what it is that according to him may be given. Acc .....

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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 instead of svoparjita, a word which would unmistakably mean "self-acquired." It will however not be difficult even for a school boy to replace the svaka of the verse by svoparjita and read that quarter of the verse as (dravyam svoparjitam deyam). The affix ka more often than not makes little or no difference in the meaning. In the section on persons excluded from inheritance, for instance, Vachaspati Misra quotes Yajnavalkya II. 140 after quoting Manu IX. 2 .....

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ve 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 little point in providing that he may not give away his whole property; the exception of the sarvasva will only operate in the very rare, if not practically impossible, case of a man who has no house and who requires nothing for the maintenance of the family. The other reading is shortly resisted by the appellant because it would make the sarvasva alienable, and it is pointed out that if the word be read in th .....

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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 object being to establish that the wife is an anvaya of the husband because the husband does sometimes inherit to her. The compound anvayagatam is capable from a grammatical point of view of being dissolved in more than one way. Appellant's way has the disadvantage of taking the word anvaya in a sense - the sense of an individual relative - which is not found in the dic .....

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t 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 excepted, and that it is only in respect of undivided, inherited or other property that the consent of other cosharers is necessary to a gift. Why the question of consent should arise at all in respect of divided property is not discussed in the portion translated, but a little later, there is quoted a .....

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ble 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 meant) that a gift does not take effect by reason of the texts in case of the absence of the consent of the son and the wife, and (in case) of one's entire wealth when there is (a .....

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licable. 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 than, capable of fairly introducing a second instance of failure of gift by reason of the text, while the word putradaravimatu, r .....

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uch 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 such as to entitle her to claim a partition from him. The maxim was before the C .....

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t 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): .....

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objection which is thus put 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 (unires .....

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leading Mithila authorities on Vyavahara or Law proper. The Mitakshara, as has been already shown, 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 .....

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trine held by other Mithila authors and the texts of Manu and other Munis. 377. We have before us the 1873 edition of the volume (published by Sreenauth Banerjee and Brothers, Calcutta) which makes the following 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 .....

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self in excess of what may be necessary for the maintenance of the family, that a gift which does not except the maintenance nevertheless does not fail, and that the consent of others is only necessary in the case of property owned in common with others. 382. In contrasting this with the proposition 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 ver .....

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t is enjoyed in common, and that where so divided, each can do independently whatever he likes"-(Setlur, p. 274). 386. It would therefore appear that according to Vachaspati Misra the gift of his entire property by the sole owner, whether he takes the consent of the anvaya or not, is on the whole not void even though the family may be left without 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 th .....

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and Vachaspati Misra's comment, as we have already shown, indicates, when read with his dicta in allied contexts, that in his view a gift is not invalid merely because it does not except the maintenance of the family. 389. The easiest way of reconciling the conflict would appear to be to uphold the gift subject to a charge for maintenance. Jagannath commenting on this verse gives the definite Dayabhaga view that a gift of the entire 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, d .....

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2, Sreenarain Rai v. Bhya Jha (1312) 2 Ben Sel Rep 29 at p. 34, the pandit of the Saddar Dewanny Adwlut gave the following exposition, which does not seem to have been challenged in any subsequent case: If a man appoint another his adopted son, that person, so adopted, stands in the relation to him of a son, and offers up his funeral oblations, and is heir to his estate; but the person, so appointed, does not become the adopted son of the adopter's wife, nor does he offer funeral oblations to her, nor succeed to her property. If a woman appointed an adopted 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 .....

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tion put in for her bear date 16th November 1924 (Pandit Iswari Dutt) and 16th July 1928 (Professor Ramautar Sharma). The arguments that we have dealt with in this case were being built up from day to day during the protracted hearing of the appeal. It is plain therefore that appellant's story that: she had been strongly advised by eminent counsel in England and in India that her right to get possession of the entire disputed estate was unassailable, under the Mithila law, in spite of the will set up by the other side which, even if genuine (which is denied) was void under the Mithila law, 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 .....

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right to the estate in spite of her husband's will. For the purposes of the negotiations she may have been entitled to assume that that was so, but it is impossible to conceive of eminent counsel in England and in India advising her that her right to get possession of the entire estate in spite of her husband's will was unassailable under the Mithila law. 399. In our opinion the Mithila law does not entitle her to do so; she has signally failed to show that she was a coparcener of her husband, a claim which, if it means anything at all in the circumstances of this case, means a right of survivorship and the consequent right to avoid the husband'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 s .....

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e and Tudor, 9th Edn. Vol. 1, p. 185) the law on the subject has been thus enunciated: The compromise of doubtful claims, whatever may be the actual rights of the parties has, from the policy of preventing litigation, been generally upheld in all enlightened systems of jurisprudence. ... In our law, it is clear that if a person, after due deliberation, enter into art agreement for the purpose of compromising a claim made bona fide to which he believed himself to be liable, and with the nature and extent of which he is fully acquainted, the compromise of such a claim is a sufficient consideration for the agreement, and a Court of Equity, without inquiring whether he was in truth liable to the claim, will compel a specific performance. . . . The real consideration and motive of a compromise, as well 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, a .....

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r decision on that point cannot affect the position that in a compromise of bona fide claims, the real consideration received by each party is the abandonment of his claim by the other. In Knowles v. Roberts (1888) 38 Ch D 263 in an action to enforce the compromise of a former action brought in assertion of a right plaintiff was not allowed to set out in his statement of claim allegations as to his right and the corresponding liabilities of defendant which were contained in his former statement of claim. Such allegations were ordered to be struck out. 405. It should be borne in mind that the compromise before us is not a compromise between strangers but substantially between members of the same family, the widow of Ugrah Mohan Thakur on the one side and his nephew and residuary legatee on the other. About family settlements, "White and Tudor, Edn. 9, Vol. 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 doubt .....

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to avoid expense and delay by legal inquiry, they agreed to settle the contest by an amicable arrangement, such transaction is not to be disturbed on the ground of the inequality of benefit which either party may eventually have received from it. 408. There the heirs of the deceased had given up a moiety of a right which was doubtful at the time but become quite clear subsequently, and it was urged that the respondents should not be allowed to take advantage of it. In the case before us there was no mistake. The lady has deposed that she knew her position under the Mithila law; and if she compromised willingly as we have held she did, she is bound by it. In the case of Ram Nirunjun Singh v. Prayag Singh (1881) 8 cal 138 their Lordships quoted with approval Kerr on Fraud and observed: Mistake in law is not a ground for setting aside a compromise, if the parties to the transaction were in difficulty and doubt, and wished to put an end to disputes and to terminate or avoid litigation. If one or more parties having, or supposing they have, claims upon a given subject-matter, or claims against each other, agree to compromise these claims, and the knowledge, or mean .....

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s actually depend. Here the compromise was not even of a doubtful claim but of something much weaker, of a novel claim based principally on a novel reading of imperfect editions of the Vivada Chintamani and the Dvaita Parisishta. 410. In our own Highs Court similar views have been taken in the case of Jagdam Sahay v. Rupnarain Mahton where it was held that where there was a supposition of the right in both parties and the right is a doubtful one, an agreement of compromise entered into by the parties is binding on them irrespective of the fact whether in truth the properties in dispute belonged to one party or to the other, and in the case of Gajadhar Prasad v. Lachhuman Lal in which it was held that if there was a bona fide claim made, although it might turn out in the end that there was not substance in it, an arrangement come to by all the members of the family to settle that claim was a valid agreement and binding upon all the parties concerned. The contention of the appellant assumes that the plaintiff would have necessarily been awarded maintenance at ₹ 1,000 per month from the date of her husband's death, but this assumption is in our opinion .....

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have to be determined in accordance with the law in India, and that it by no means follows that implications of authority, which are readily inferred in other countries, ought to be established in the conditions which prevail in India. 414. Under our law should a grossly unfair compromise come before a Court, as for example where a helpless person, such as an inexperienced pardanashin lady, has been induced to agree to an unconscionable bargain, such a compromise would be ignored or relieved against without relying upon the principle laid down in Neale v. Gordon Lennox (14). For the Court will be entitled in the circumstances to presume that such a compromise could not have been entered into by the helpless person except under the influence of fraud or coercion, etc., or that it could not have been intelligently entered into; in other words, that the act of physical execution was not accompanied by the necessary mental act. For these reasons we are of opinion that the compromise cannot be interfered with on the ground urged, viz., that the terms are unjust to the appellant and that it was improvident on her part to accept them. 415. We now come to the various .....

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enforced in execution proceedings. In respect of the arrears of maintenance the compromise provides for an executable decree, but it is urged that as the compromise provides their being charged upon the estate, this also cannot be enforced in execution of the decree, but will require a separate suit. This being the case and the plaintiff being entitled to other reliefs than a mere declaration, Section 42, Specific Relief Act, it is urged, bars the passing of any decree. It is further contended that the plaintiff's abandoning her other reliefs amounts to her not suing for them at all and thus Section 42 of the Act, comes into operation, and no compromise can be recorded unless the Court is in a position to pass decree in accordance with it, while the only decree which the Court can pass in this case being a declaratory one is barred by Section 42, Specific Relief Act. Reliance has been placed upon the case of Aubhoyessury Dabee v. Gouri Sunhar Panday (1895) 22 Cal 859 and Matangini Dassee v. Chooneymoney Dassee (1895) 22 Cal 903. 418. The first of these cases laid down that where a consent decree ordered the payment of .....

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ive executable decree can be passed, as has in fact been done by the learned Subordinate Judge. 421. So far as the arrears of maintenance are concerned, the compromise itself expressly provides for the passing of an executable decree. The objection about the decree not being executable on the ground that it created a charge on the estate is untenable. The two cases from 22 Calcutta relied upon by the appellant were decided before the passing of the Civil Procedure Code of 1908. Since then Section 99, T.P. Act, which required the institution of a separate suit to enforce a charge has been transferred with Some modification to Order 34, Civil P.C., and as a result a decree creating a charge is now clearly executable. The change in law was pointed out in Calcutta in the case of Tarak Nath Adhikari v. Bhubaneshwar Mitra (1914) 42 Cal 780 and in this Court in Brajasundari Debi v. Sarat Kumari (1916) 2 Pat LJ 55 a case arising out of proceedings in execution of a decree which awarded maintenance and charged it on an estate. Sharfuddin and Chapman, JJ., held that if a charge is created by the decree itself, no fresh suit is nece .....

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f he is in need of. If, on the other hand, a declaration is not enough, the Court will order the party, who has infringed the right of another, to restore that right to the rightful party as found by the Court, or as admitted by the other party. What the parties do in a compromise of a suit is to adjust their rights and liabilities outside the Court, and then come and ask the Court to recognize those rights and liabilities and pass its formal expression of adjudication accordingly. 424. This is what is provided in Order 23, Rule 3. The Court is required to record the compromise, which thus really takes the place of a judgment in a contested suit. In the present case the defendants have by the compromise accepted a liability to pay maintenance at a certain rate and to provide a house and a conveyance. The actual words of the compromise are: Defendants 1 and 2 agree to pay and will pay to the plaintiff till her death ₹ 1,000 per month for her maintenance from the beginning of November, etc., etc. The said maintenance will be a charge on the estate of Babu Ugrah Mohan Thakur aforesaid. 425. Similar is the term about the house and the conveyance, .....

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performance might be necessary. 427. This, of course, is the practice in England. In India it has been held that a compromise attached to a formal decree has the same effect as if it were embodied in the decree itself. Order 23, Rule 3 imperatively lays down that the Court after recording the compromise shall pass a decree in accordance therewith, and though the decree actually drawn up in this case is not strictly formal, the compromise petition having been simply attached to the decree, we propose while dealing with the connected Civil Revision No. 483 of 1932 to order a fresh and formal decree to be drawn up as required by law and as indicated by Seton. 428. That an executable decree can be passed for future maintenance, that is a decree entitling the decree-holder to realize such maintenance in execution proceedings admits of no doubt. Such a decree was held to be executable by a Full Bench of the Calcutta High Court in the case of Ashutosh Banerjee v. Lukhimoni Debya (1891) 19 Cal 139 (FB), and was as a matter of fact passed by their Lordships of the Privy Council in Ekradeshwar Singh v. Janeshwari Bahuasin (20a) though the precis .....

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ee to be passed in the suit. Apart from this, in our opinion the plaintiff need not have sued for any relief, except a declaration, so far as the future maintenance is concerned. 431. Future maintenance had not fallen due, and the plaintiff had no cause of action in respect of it. Though it has been held that an executable decree for future maintenance can be passed, it has nowhere been laid down that a plaintiff must sue for such a decree. If a plaintiff chooses to seek a declaration only for future maintenance for which the cause of action has not accrued, Section 42, Specific Relief Act, cannot stand in his way where the words "able to seek further relief" mean "able to seek" it on the date of the suit: see Govinda v. Perumdevi (1888) 12 Mad 136. It is obvious that the plaintiff cannot be said to have been able to seek the relief of realization of the future maintenance, which had not fallen due till the date of the institution of the suit. Therefore the plaintiff if she had so chosen could have sought a declaration of right regarding her future maintenance and for fixing its amount, without asking for an executable decree .....

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usband and wife that, "the Court will recognize a settlement of difference, and an agreement of compromise entered into is valid and may be made an order of the Court or may be enforced in the Chancery Division." 434. Sanderson, C.J., in the case of Sourendra Nath Mitra v. Tarubala Dasi: AIR1925Cal857 , while dealing with the application for leave to appeal to the Privy Council against the judgment of the Calcutta High Court, observed as follows: An application to record an adjustment under Order 23, Rule 3, is in some way a very special matter, because it is a matter as to which a party is allowed to stand upon and to enforce an agreement which was not in existence at the date of the suit. It is a method whereby for convenience a party is allowed to enforce what is really a new cause of action altogether and this is done in order to avoid the necessity of abandoning one suit and starting another, Lord Halsbury in the case of Neale v. Gordon Lennox (14) at p. 469 already referred to above, observed: The Court is asked for its assistance, and I entirely repudiate the technical distinction between what is called an application for .....

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edier remedy provided under Order 23, Rule 3 were not available, B could have recourse to a suit against A for specific performance of the contract to compromise the suit on the terms agreed to, and if successful, he will get a decree compelling A to have the suit decreed on the terms agreed to by him though A would have no obligation to discharge after the decree in the first suit, but on the contrary B would be under an obligation to pay ₹ 1,000 to A after three years. No other remedy of specific performance would be either necessary or available to B. 437. Suppose, on the other hand, that A stands by the compromise and B backs out of it, the suit which A, if he so likes, will institute against B for the specific performance of contract on the basis of the compromise will be that B be compelled to submit to a decree for ₹ 1,000 payable after three years, and not for the payment of ₹ 1,000 which has not according to the terms of the compromise fallen due up till then, being payable three years after the date of the decree. Therefore in our opinion the analogy between an inquiry under Order 23, Rule 3 and a suit for specific performance of contract does .....

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that is specifically enforceable. We are unable to accept the contention of the appellant that in order to enable the Court to record a compromise the terms, which are to be complied with after the decree, should be specifically enforceable under the Specific Relief Act. 441. To hold this will mean the exclusion of a large number of cases from the purview of Order 23, Rule 3. For instance, suits for realization of money will not be compromisable, and parties will be precluded from settling their disputes about monetary liabilities by fixing amounts to be payable by one to another or by fixing instalments. All such suits will go outside this section, because obligations for payment of money though certainly enforceable are not specifically enforceable in the sense that a specific sum of money cannot be made payable like, say, a specific book, picture or article of furniture. If the terms settled by the parties be enforceable under the law, we do not see why the compromise should be held to be other than perfectly lawful. There is no reason, and we have no power, to import into Order 23, Rule 3 restrictions which are not to be found there. If one of the parties agreed in a .....

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, but A is not satisfied and feeling that the painting has been spoiled, refuses to give B the balance of ₹ 800. Two suits are instituted: one by A against B for the damage alleged to have been caused to the painting and the other by B against A for recovery of ₹ 800. The parties compromise on the terms that A is to give up his claim for damages on B's undertaking to repair the painting to the satisfaction of an artist, and that he is to consent to a decree in B's suit. In pursuance of this compromise A lets a decree for ₹ 800 passed against himself. Thereafter B backs out of the compromise. 444. Supposing that the special remedy provided under Order 23, Rule 3 were not available, what would be the remedy of A? Can he not sue B for specific performance of the contract in order to compel him to consent to a decree in A's suit on the terms agreed to by B? We are of opinion that he can, and the Court would compel B to specifically perform his part of the contract by consenting to or suffering a decree in A's suit to the effect that B will repair the painting to the satisfaction of the artist. Similarly, if A applies in his suit u .....

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e Farran, J., also agreed in those views. A question was raised in that case whether a compromise can be recorded under the provision of Section 375 of the old Civil P.C., if one party repudiated it. The Calcutta High Court had already held in Hara Sundari Debi v. Dukhinessur (73) a case already referred to, that the inquiry could not be conducted in the suit and that a separate suit was necessary. The Madras High Court had taken another view, namely, that such an inquiry could be held even under Section 375, old Civil P.C. The Calcutta Full Bench decision in Brojdarlabh Sinha v. Ramanath Ghosh (74) was not pronounced till then. 448. It was contended before Telang and Farran, JJ., that while the power of the Court to grant specific relief was discretionary, the provision of Section 375 was mandatory, and that the legislature could not have contemplated an inquiry as to the fact of compromise and its lawfulness in a summary inquiry in the suit itself. Telang, J., observed: The other point raised is that whereas if a suit was brought for the specific performance of such an agreement as is referred to in Section 375 i.e. the agreement to compromise the suit, the .....

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difference in treatment between the specific performance of the agreement to compromise a suit when dealt with in the suit itself and a suit for specific performance of the contract, and referred to the case of The Hero (1891) P 294 and then proceeded: These remarks seem to be very applicable in the present case specially when it is remembered that the Specific Relief Act and the Civil Procedure Code were under consideration of the legislature almost about the same time. But however that may be, and it is not absolutely necessary to decide the point now, it is enough for the purposes of the present case to say that I am not prepared to hold that the agreement under consideration ought to leave the Courts to put a different interpretation on the words of Section 375 than that which has been above indicated. 450. This was the view about the mandatory nature of the provisions of Section 375 of the old Code taken by the Full Bench of the Calcutta High Court and of the Bombay and the Madras High Courts, it being unanimously held that the provisions of Section 375 were mandatory and that no question of discretion in granting a decree for spe .....

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was granted by the trial Court, but was refused on appeal. Lord Cranworth, L.C., observed: The rights of the parties in respect of specific performance are the same as if the award had been simply an agreement, between them. Had it been an agreement, would there have been a case for specific performance? I think not, and for this short and simple reason-that the Court does not grant specific performance unless it can give full relief to both parties. Here the plaintiff gets at once what he seeks-the lease; but the defendant cannot get what he is entitled to, for his right is not a right to something which can be performed at once, but a right to enforce the performance by the plaintiff of daily duties during the whole term of the lease. The Court has no means of enforcing the performance of these duties, all it can do is to punish the plaintiff by imprisonment or fine, if he does not perform them. 453. This case has no bearing upon the one before us. First of all there was no mutuality of obligations in the award; while it imposed the execution of a lease upon the defendant, no such obligation was imposed upon the plaintiff. Secondly, an award stands upon a di .....

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to refer to a decision which has been relied upon by the appellant to support the contention that a compromise can only be recorded if its terms are specifically enforceable This is the case of Mehdi Ali Khan v. Ghanshiam Singh. The facts of the case were the respondent Ghanshiam had mortgaged two villages to the appellant Mehdi Ali Khan, and the latter instituted a suit to enforce his security. One Bharat Singh claiming to be an adopted son of Ghanshiam intervened in that suit. 456. His position as an adopted son of Ghanshiam was disputed by Mehdi Ali Khan. Bharat's application was rejected, and he instituted a separate suit, impleading Mehdi Ali Khan, some other mortgagees of Ghanshiam and Ghanshiam himself. This suit was compromised, and this compromise was the subject-matter of dispute before the Privy Council. The compromise was to the effect that Ghanshiam would sell 15 biswas of land to Mehdi Ali Khan in full discharge of his dues and that Mehdi Ali Khan would bear the expenses of the sale and pay ₹ 5,000 to Ghanshiam for part payment to another mortgagee of his, one Gokul Chand, and that Ghanshiam would see that these 15 biswas are transferred to Mehdi .....

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ships and religious works with consultation with the defendant. It was also conceded by the respondents that none of these can be enforced. They are far too vague and general to be capable of enforcement in any manner. Regarding the first of these provisions, as we have already said, it was not an integral part of the contract but was merely put down to produce domestic happiness, and is severable from the rest of the contract. Leake on Contract (Edn. 6, p. 571) says that: where a contract contains several promises, or a promise to do several matters, some of which are illegal, a promise which can be separated from the illegality may be valid. 'The general rule is that where you cannot sever the illegal from the legal part of an covenant, the contract is altogether void; but where you can sever them, whether the illegality be created by statute or by the Common law, you may reject the bad part and retain the good.' So a bond may be good, though the condition is good in part and illegal in part. 460. This was the view taken by the Calcutta High Court in the case of Poonnoo Bibi v. Fyez Bukhsh (1875) 15 BLR App 5. The defendant, a Mahomedan husband, exec .....

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o:p> It may be observed that there is authority for the proposition, Price v. Griffiths (1851) 1 De GM & G 80, that where an agreement to grant a lease of an entire property cannot be enforced as to the whole, it will not necessarily be enforced as to a share, because as Knight Bruce, L J., puts it, a lease of an undivided moiety may be a very different thing from a lease of the whole. 463. This case has no application to the present one, because the illegal severable part is in no way connected with the legal part of the contract. Here, as we have said, everyone of the terms entered into by the defendant in favour of the plaintiff is enforceable. The two unenforceable terms are not an integral, unseverable part of the compromise, and therefore the compromise is lawful, and under the, mandatory provisions of the law must be recorded. 464. It is contended that the proceeding being analogous to a suit for specific performance of a contract, the defendant is not entitled to have the compromise recorded as he himself failed to perform his part of the obligation, viz., that he did not continue paying the plaintiff her maintenance of  .....

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e plaintiff to have the rest of her suit dismissed and vice versa. It is true that a party is not entitled to specific performance of a contract unless he shows that he has all along been and is ready and willing to perform his part of the contract. If the proceeding under Order 23, Rule 3, be regarded in the light of a suit by the defendant for specific performance of a contract, what the defendant seeks is that the plaintiff should be compelled to let her suit be dismissed in respect of other claims and that he is ready and willing to submit to a decree to be passed by the Court against him in terms of the compromise. It was not, in our opinion, at all necessary for the defendant to carry out the obligations that were to arise only after the passing of the compromise decree, when the plaintiff herself was resisting the passing of the decree. It is an admitted fact that after 7th April, the defendant did not perform the obligations which were to arise under the compromise decree. Unsuccessful attempts were made by the plaintiff to force the defendant to carry out those obligations, while she herself was repudiating the compromise. In our opinion, the defendant was entirely justifi .....

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een depositing ₹ 1,000 every month in Court, out of which ₹ 500 per month is being paid under provisional orders to the plaintiff as her maintenance. 469. Under a later order of this Court the plaintiff has also been getting ₹ 200 as house rent, and ₹ 100 for conveyance, for which separate deposits are being made by the defendant. Out of the moneys deposited, certain sums have been allowed to the plaintiff for the purpose of this litigation and for her husband's sradh. Therefore as we have said, it cannot be disputed that after the 7th April, when the plaintiff filed her application under Section 151 repudiating the compromise, the defendant, though always ready and willing to submit to a decree and then carry out the terms of the decree, has not been carrying out the terms of the disputed decree which itself was set aside on 8th June 1926. The defendant has always maintained that so long as the plaintiff was attempting to have the compromise revoked, she was not entitled to get the benefits of the compromise. The point therefore is, has the defendant forfeited his right to have the compromise recorded? In our opinion, he has not. 4 .....

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gnified, by words or conduct, his acquiescence in its continuance. 472. Again, this section helps the defendant Regarding the part to be performed by the defendant, he was the promisor and the plaintiff the promisee. Sir Sultan Ahmed argued that on account of the defendant's having refused to perform his part of the contract, the promisee plaintiff did put an end to the contract; but, as we have shown, there was no refusal on the part of the defendant to carry out his part of the promise, viz. to have a decree according to the compromise passed against him. The default is by the plaintiff in performing her part of the promise, and it is the defendant and not the plaintiff that is entitled to put an end to the contract. Section 54, Contract Act, is another section relied upon by the appellant. It runs: When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed, till the other has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the .....

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aintiff. 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. The promise was not performed. The plaintiff sued for specific performance but later on abandoned his claim and pressed for damages only. The suit was dismissed. The plaintiff appealed to the Privy Council, and their Lordships held as follows: Where the injured party sued at law for a breach, going, as in the present case, to the root of the contract, he thereby elected to treat the contract as at an end and himself as discharged from its obligations. No further performance by him was either contemplated or had to be tendered. In a suit for specific performance on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness, and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it inevitable dismissal of the suit.< .....

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/o:p> 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 simultaneously performed, and if one refuses to perform his part as the plaintiff is doing in this case, the defendant can insist upon the plaintiff performing it, as long as he is ready and willing to perform his own part simultaneously with the part to be performed by the plaintiff. 479. On the face of the clear section of the Contract Act, which we have referred to, it is not very essential to refer to the various cases, some of which have been referred to by the learned Subordinate Judge. However we would like to examine, in passing, Ram Sahai Singh v. Dhnnookdharree Singh (1864) 1 WR 265 where it was held that a promise entered into a former suit, no fraud being alleged, is not annulled by non-performance by one of the parties. The other parties may sue for its enforcement, but they cannot revert to their original rights. The ratio decidendi of this case apparently is that the consideration for a com .....

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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 Beningtons, Ltd. v. North Western Cachar Tea Co. Ltd. (1923) AC 48 at p. 63 Lord Atkinson followed Jones v. Barkley (1781) 2 Doug 684 and relied upon the remarks of Lord Mansfield we have quoted above. In the case before us, since the plaintiff applied to the Court to set the compromise decree aside, the defendant was not bound to continue to carry out the terms of that decree. In our opinion however the performance of the terms of the decree is absolutely immaterial for the purposes of this case. 483. We would like in this connexion to deal with a contention advanced by Mr. Manuk, on behalf of the respondent, that as long as the plaintiff did not refund all the benefits which she had received under the compromise, she could not be permitted to resist the defendant's applica .....

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ient 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 parties to the compromise. This is in accordance with the view taken in this Court in the case of Abhayanand Singh v. Rameshwar Singh where some of the defendants compromised the suit and the Subordinate Judge deferred passing a decree against the consenting defendants and proceeded to hear the suit as against the others. 486. In the present case no relief was claimed against the remaining defendants personally, and as against them all that she asked for was that she should get the entire estate free from the transfers made by the executor. If she gave up this claim, she had nothing further to do with the other defendants and these latter were not in any way interested in the compromise. We do not find anything unlawful in the compromise because several .....

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nt 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, while dealing with this question, seems to have been under the impression that the debuttar claim of the plaintiff has been decided in her favour. His remarks are: The compromise petition does not contain any mention of any debuttar in it. It only speaks that the maintenance allowance shall be a charge on the estate of Ugrah Mohan Thakur. . . . Therefore the contention that the compromise could not deal with it falls to the ground. If the debuttar property does not form part of the estate, then it does not affect the question of the validity of the compromise. The petitioner may as an heir of Ugrah Mohan Thakur administer the same. 489. This view of the learned Su .....

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f 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 section: A agrees to sell to B my white horse for ₹ 500 or ₹ 1,000. There is nothing to show which of the two prices is to be given. The agreement is void. 492. This illustration has however no application as the uncertainty is incapable of being removed in any manner. "Certum est quod certum redai potest." There is in the case before us nothing in the terms about the provision for a house and a conveyance which cannot be determined with reasonable certainty. The specification that the rent of the house is to be not less than ₹ 100 nor more tha .....

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d 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 proceed with the suit against the other defendants. In our opinion the words "estate of Ugrah Mohan Thakur" in the circumstances obviously meant the estate as it stood at the date of the compromise and it was substantially the estate as it stood at the time of the death of Ugrah Mohan Thakur. There is no uncertainty in this respect. 496. Regarding the uncertainty of the parties to the compromise, much need not be said. It was contended that while the body of the petition mentions that the parties have compromised, really s .....

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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 set aside by a Division Bench of this Court (Jwala Prasad and Bucknill, JJ.). The decree having been set aside, no fresh decree, it is contended, can be passed on the basis of that compromise. It is even contended that the order of this Court setting aside the decree required that the plaintiff's suit should be tried on the merits. Reliance has been placed upon the cases of Kalipadda v. Dwijapada Das and Hook v. Administrator-General of Bengal AIR 1921 PC 1 .....

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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 case of Savitri Ramayya v. Holebasappa for the proposition that the construction of a document arrived at between the same parties operates as res judicata. We do not think that Sir Dawson Miller, C.J., and Foster, J., did at all construe the order of this Court. It was a passing remark on the application of the plaintiff. The words "to proceed with the .....

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s 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 case decides nothing as to the rights of the parties in the suit and merely directs the Judge to rehear the application for recording the compromise and to proceed thereafter according to law. 506. We, therefore, hold that the inquiry about the genuineness and validity .....

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, 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 perfected by another document, and their Lordships did not consider that it was in .....

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f a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-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 registra .....

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of the plaintiff created and her claim as against the defendant extinguished. It is therefore not necessary to rely upon the observations of their Lordships in the casts referred to above. It is needless for us to refer to the cases relied upon by the appellant. None of them are to the point. Some of them refer to petitions filed before Revenue 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 t .....

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e attained majority on 1st February 1924, and Bodh Krishna Jha again came to him in March of that year, and suggested a meeting between him and the lady and it was settled that he would meet her at some place of pilgrimage as he would not do so at Darbhanga. In October of that year Bodh Krishna Jha came to him for a third time and told him of the lady's expected visit to Simaria Ghat for the Kartick 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 .....

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. These terms were ultimately agreed to by the defendant and embodied in the draft, and this draft in the completed form was read over to the plaintiff, and Ex. F is the copy of that draft, except the clause about the personal exemption of Mr. Savi, the executor of the estate of the deceased Ugrah Mohan Thakur, which was added later on at the instance of Mr. Savi and agreed to by the lady. Bodh Krishna and Balbhadra (a man of the defendant'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 o .....

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produced all the witnesses he could produce, the plaintiff has withheld important witnesses like Maulvi Sayeed-ud-din, Durga Nath, Babu Hito Roy and Mr. Ram Krishna Jha. Babu Hito Rai and Durga Nath were not in collusion with the defendant. After the compromise the lady came to Bhagalpur and there she mentioned the terms of the compromise in a general way to various persons who came to visit her. She was very well looked after and was quite comfortable there. In the meantime Ram 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 .....

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m his part of the obligations embodied in the compromise, viz., to submit to a decree for past and future maintenance, for a house and conveyance. 529. We have held that till the repudiation petition was filed by the plaintiff on 7th April, the defendant was all along carrying out the terms of the decree itself. The compromise is not unlawful on account of the other defendants not joining in it; and that the abandonment of her claim to the shebaitship of the trusts created by Madan Mohan Thakur and Ugrah Mohan 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 .....

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inst the plaintiff. Possibly he considered that the lady had no means of her own, and any costs awarded against her would have to come out of her maintenance allowance. 533. Ordinarily, the lady was entitled to our sympathy. Her married life was apparently not very happy. She was an orthodox Hindu, while her husband had become more or less westernised, and there are indications that she was to some extent neglected-to put it mildly-in favour of a mistress with whom the deceased was living. In her husband's time, though she was given all the 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 compromis .....

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ion has been left to the Court and, in our opinion, a daily fee of ₹ 100 for each hearing at the final stage, or altogether ₹ 2,000, and ₹ 50 per day for the contested hearings during the interlocutory stage, will meet the ends of justice. This brings the costs to a total of ₹ 3,350. The cross-objection must, therefore, be allowed as indicated above. 538. It only remains for us to dispose of an objection which was raised by Mr. Ghosh, one of the learned advocates appearing for respondent 2, as to our competency to proceed with this appeal. The contention is based on these facts: 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 appar .....

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e could be nothing said about whether such an appeal at all lies. On these facts the contention of Mr. Ghosh has been that, as we have dismissed the, appeal against the decree, the present appeal against the order cannot proceed, because if we were to allow this appeal, it would mean the consequential setting aside of the decree. We find no force in this contention. 541. As we have said, the application to sue as pauper was rejected on the ground that no appeal lay against a decree passed upon compromise, being prohibited by the Code; and we dismissed the appeal as no court fee was paid. Matters thus are on the same footing as if no appeal against the 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 hear .....

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