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TMI Blog1932 (10) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... probate of a will said to have been executed by the deceased on 10th May 1913. 3. It was said that the whole of the will was in the hand-writing of the deceased himself and that he had deposited it personally with the District Sub-Registrar of Bhagalpur under the provisions of the Registration Act. It purported to be attested by the lady Savitri Thakurain herself. The will is not before us, but its main provisions which are relevant for the purposes of this appeal were that the estate was to go to one of his nephew (Suraj Mohan Thakur) as a residuary legatee and the widow Savitri Debi was to receive an allowance of ₹ 100 a month. The nature of this allowance is a subject-matter of controversy, namely, whether it was a maintenance or a legacy. Mr. Savi and one Hem Chandra Mitter were appointed executors. 4. The latter however refused to act and the application for probate was made by Mr. Savi alone. (An abortive attempt of the appellant to set up a rival will against the one propounded by Mr. Savi, was described and the judgment proceeded.) The probate case for the will propounded by Mr. Savi was taken up and probate was granted on 13th November 1914. An appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over the estate. 7. Later on a brief analysis will be given of the plaint and written statement of this suit. The suit was taken up on 5th November 1924, when three issues namely issues 6(a); 6(b) and 6(c) were added; and the learned Subordinate Judge fixed 21st November 1924, for the hearing of issues 6 to 6(c) on questions of law only. These issues are as follows: 6. Is the plaintiff estopped from questioning the genuineness and validity of the will, dated 10th May 1913, and also her setting up a special plea of custom and law as bar to her husband's power of disposal of his properties by will or otherwise. If so, whether the said will is genuine and valid? 6(a). Whether the alleged will dated 10th May 1913, is operative as to all or any of the properties to the suit. If so, as to which of them it is operative? 6(b). 8. Whether the decree of the probate testamentary suit No. 3 of 1914 was fraudulently obtained as alleged by the plaintiff. If so, does it bind the plaintiff? 6(c). Has the Court jurisdiction to try issues 6(a) and 6(b) in this Court? The plaintiff did not like the hearing of the suit piecemeal and moved this Court on 18th November 1924. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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, the details whereof will be dealt with later. The learned Subordinate Judge has however held against the plaintiff on almost every point and has directed the compromise to be recorded and a decree to be prepared on its basis. It is against this order that the present appeal has been preferred. No costs have been allowed to the defendants, and on this and on some other matters there is a cross-objection on their behalf. 12. The questions involved in the present appeal are whether the petition of compromise contained terms which were agreed upon by the plaintiff, and whether the compromise is lawful and fit to be recorded. These simple questions have become complicated as every little incident leading up to the presentation of the petition has been hotly controverted by the parties and a mass of evidence has been adduced in support of their respective versions and the plaintiff has raised all legal objections which could have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 the story of the litigation about the two wills described above and characterized the probated will propounded by Mr. Savi as a forgery and asserted that the probate was obtained by fraud. The fraud alleged was that Tajeshwar Jha and Kishore Jha who were looking after the probate case on her behalf colluded with the defendant and deserted her and did not either look after the case or give proper instructions to the lawyers. She contended that even if the said will was genuine, from what happened since then it had been revoked. It could not under the Mithila School of Hindu law, which governed the parties, affect the ancestral properties mentioned in Schedule A. 17. As we have said, among the properties mentioned in that Schedule A is a life-policy of ₹ 10,225 which according to the plaintiff could not form part of the estate of the deceased, and therefore the will had no operation on it. The plaint further said that the deceased was a shebait ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 decree for the personal properties mentioned in Schedule C to the plaint; (m) In case the properties mentioned in Schs. B and C be held to be the part of the estate, then a decree in her favour on the ground of survivorship, custom or law of inheritance; (n) A decree for future and past maintenance to be a charge upon the estate. The decree be so framed that the charge be enforceable by sale in execution of the decree; (o) Appointment of a receiver pendente lite; (p) Provision for a residence and a suitable maintenance pendente lite; (q) Other general reliefs and costs. 21. The chief defence to the suit was on behalf of Mr. Savi and defendant 2 (Suraj Mohan Thakur), their defence being almost the same. They asserted the genuineness and validity of the will and urged that the plaintiff was precluded from questioning it and denied the special right of the widow under the Mithila School of Hindu Law, raised a special plea about some of the properties claimed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agalpur 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 steps to turn her out from there. Since then the plaintiff had been residing either at Darbhanga where her cousin Ram Krishna Jha, an Advocate of this Court, was then living and practising, or at places of pilgrimage, such as Allahabad and Benares. 25. In the middle of October 1924, the lady came to Simaria Ghat for the Kartik Ganges bath and was there admittedly till 15th November 1924. Defendant 2 Suraj Mohan Thakur had attained majority few months before (in February 1924). On the evening of 15th November Suraj Mohan went there and met the plaintiff. Whether he went on invitation from the lady as alleged by the defendants or paid a surprise visit to her without the lady knowing anything about it from before are matters in dispute and will be dealt with later on. Be that as it may, it is an admitted fact that Suraj Mohan had attained majority a few months before, and the lady met him after many years, and the terms of a compromise or at least the main terms were settled between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in lieu of her maintenance; but so long as the debts due from the estate were not paid, she would not get from the estate more than ₹ 1,000 per month for her personal expenses. The estate would however always remain in management of Mr. Savi and Suraj Mohan Thakur. 2. The wages of her servants, medical charges, kitchen expenses and conveyance expenses would be met by the estate. 3. While at Bhagalpur she would occupy Anand Garh Palace and when out she would get ₹ 200 a month as allowance for house rent and ₹ 100 a month as allowance for conveyance. 4. She would get all her jewellery or their price and gardens claimed in the suit. 5. In order to enable her to pay her creditors she would get from the estate a sum of ₹ 1,20,000, out of which ₹ 20,000 would be paid at the time of the compromise to Ram Krishna Jha and the balance ₹ 1,00,000 would be paid to her in the course of two years, and in the meantime she would get its interest at 6 per cent per annum. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be spent by the plaintiff after consultation with defendant 2 over scholarship fund or some religious work. 6. No provision. 7. The only other provision is that the parties were to bear their own costs and that defendant 2 was always to look after the plaintiff and not to let her have any sort of inconvenience or discomfort and remain obedient to her. maintenance and ₹ 3,000 as advance maintenance to be set off against future maintenance. 33. It has been contended by the appellant that the compromise cannot be recorded under Order 23, Rule 3 on the following grounds: (1) That the terms as mentioned in the petition of compromise (Ex. A) were not agreed to by the lady Savitri Thakurain and that the terms really agreed to were surreptitiously and fraudulently replaced by those given in Ex. A. (2) That even if the lady agreed to these terms, she being an illiterate Pardanashin lady did not fully understand them. They were not explained to her and she had no independent advice. Advantage was taken of her ignorance and position. (3) That the compromise is not lawful and its recording is barred under various provisions of law. 34. Some subsidiar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remotely connected with Suraj Mohan, one of his grand-daughters (not through the plaintiff's sister) having married one Madhu Kant Jha whose sister is the widow of Raj Mohan Thakur the elder brother of Suraj Mohan. There is no doubt that he was a trusted companion of the lady, but now he is said to have been in collusion with Suraj Mohan and to have been gained over to his side through Madhu Kant Jha, his grand son-in-law. The party was putting up in temporary huts of straw constructed on the bank of the river. The asnan (bath) was to last till 15th November 1924. The lady's story is that she made preparations for leaving the place that day and going to Laheriaserai (Darbhanga) where she had been previously residing. Durga Nath asked her to stay there that day as the Sankrant, which ends the period of the bath, would last till the following night. 38. She accepted this advice. In the evening Suraj Mohan accompanied by the said Madhu Kant Jha and others reached Simaria Ghat unexpectedly. The lady's case is that Durga Nath, who was in conspiracy with Suraj Mohan had been expecting him and on the pretence of the Sankrant lasting till the following night detained her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons about the terms of the compromise. 41. Durga Nath was sent, and he assured the lady that the draft was being prepared by Maulavi Sayeed-ud-din. Thereafter Suraj Mohan assured her that he would do all that was needful in connection with the preparation of the draft of the petition of compromise. A draft was prepared and she was assured by Durga Nath that it was done by Maulavi Sayeed-ud-din and approved by her Patna lawyers and that it contained all the terms that she said had been settled at Simaria Ghat. It is admitted that one Bodh Krishna Jha, a full brother of Mr. Ram Krishna Jha, came to Monghyr on request on the 20th. Ram Bahadur, a clerk of Mr. Ram Krishna Jha, also came to Monghyr. 42. There is however some difference about the date of his arrival. According to the defendant he also came on the 20th, but according to the plaintiff's case he came on the morning of the 21st. These two persons however according to themselves and the lady, took no part in the transaction and were simply watching events from a distance. Though they sent three telegrams to Mr. Ram Krishna Jha at Laheriaserai about the compromise he did not come. Later on, Ram Krishna Jha rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her husband. This money was sent through one Balbhadra Thakur (D.W. 2), servant of Suraj Mohan. 46. Then she learnt for the first time from Balbhadra that the terms of the compromise as embodied in the petition filed in Court were not according to what was settled at Simaria Ghat and that there was no provision in that petition for the payment of ₹ 1,000 for the sradh of her husband and that Suraj Mohan, and not the plaintiff, was made the owner of the estate. She was taken by surprise and sent for Dharam Narayan Chaudhury who had sometimes looked after her cases and who happened to be there at that time. She sent him to bring Ram Krishna Jha. The latter went to Allahabad with much difficulty on the persuasion of Mr. Murari Prasad, an Advocate of this Court and a witness in this case, who had worked in her cases. Ram Krishna Jha refused to help her and advised her to approach Babu Murari Prasad and Khan Bahadur Maulvi Sayeeduddin. 47. Dharam Narain also expressed his inability to do anything for her. The lady came to Benares on 15th February. There she learnt that Babu Murari Prasad was there, sent for him on 19th March 1925, and related to him all that had hap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this: When Suraj Mohan was about to attain his majority, Bodh Krishna Jha, full brother of Ram Krishna Jha, came to him on about 28th December 1923, and suggested that if a suitable maintenance be agreed to for the lady, the litigation might be brought to an end. Suraj Mohan expressed his inability to do anything till he attained majority. He became major on 1st February 1924, and the fact was noted in the record of the case on the 5th of that month. 51. Bodh Krishna Jha again came to him on or about 30th March 1924, and suggested that a personal meeting between Suraj Mohan and the lady might smooth matters and finish the litigation. Suraj Mohan Thakur refused to go to Darbhanga where the lady was at the time, as his elder brother Raj Mohan Thakur (since dead) was not well received by Mr. Ram Krishna Jha. He however agreed to see the lady at Benares or at some other place of pilgrimage where the lady used to go. On or about 9th October 1924, Bodh Krishna Jha went to him for the third time and informed him that the lady was about to go to Simaria Ghat for Kartik asnan and that would be a suitable place for the interview. On or about 16th October 1924, Durga Nath came to him a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la of Baijnath Goenka. On 19th November, Maulvi Sayeeduddin, the vakil for the plaintiff, and Babu Bhairo Prasad, the vakil for the defendant, were sent for. 54. The former explained to the lady the scope of her suit. The lady informed him of the terms of compromise. Maulvi Sayeeduddin asked her to communicate to him her wishes through her own servants. A remuneration of ₹ 100 was paid to Maulvi Sayeeduddin by the defendant at the instance of the plaintiff. On 20th November Bodh Krishna Jha on being sent for came to Monghyr. Ram Bahadur Singh also came on that very day and the two together began arranging for a draft of the petition of compromise. At this stage the plaintiff wanted some additional terms. They were: (1) house rent not exceeding ₹ 200 per month; (2) a conveyance for going to places of pilgrimage; (3) ₹ 17,000 out of the maintenance allowance to be paid in cash and the balance to be actually paid in instalments, and, (4) the costs of previous litigation to be borne by each party. Suraj Mohan at first objected to these terms, but as the lady insisted he yielded. Drafts were then prepared (according to the information of Suraj Mohan) by or in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne to the railway station. He went there and informed her what Mr. Savi had agreed to accept. She agreed to exempt him. Thereafter Suraj Mohan returned to the house of Rai Bahadur Lakshmi Prasad. Sinha where Mr. Savi was staying and where the draft was fair copied by one Mahendra Narain Singh on the dictation of Bodh Krishna Jha and then taken to the railway station for that signature of the lady. The whole petition was read by her and also read over and explained to her by Ram Krishna Jha, and then she signed it after ₹ 20,000 was paid to her. This ₹ 20,000 consisted of ₹ 17,000 out of ₹ 1,17,000. the arrears of maintenance found due, up to October 1924, and ₹ 3,000 advance payment for the months of November and December 1924 and January 1925. The petition was then handed over to the Subordinate Judge who happened to be there and who again got it read over to the lady by Baiju Mandal and she admitted to him the due execution of it. 59. The Subordinate Judge finding that each page of the petition was not signed by the parties asked them to do so, and this was done. As it was understood that after the compromise, whenever the lady would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is not of much consequence. The only bearing this question has is as to who was anxious for the compromise. Anxiety for a compromise by a party does not show the weakness of his case or suggest that he would compromise on any terms however harmful they may be to him. Prima facie both versions are equally probable. 63. Assuming that there was no invitation by the lady, there would be nothing extraordinary if Suraj Mohan, having learnt of the lady's presence at Simaria Ghat, went there to make an attempt to settle a dispute which was apparently ruining the estate. Suraj Mohan was not then even 19 years old. He attained majority on 1st February 1924, and there being no guardian appointed by the Court, he did so at the age of 18 years. During his minority he must have been painfully watching the course of this expensive and ruinous litigation between himself and the wife of his uncle and benefactor. 64. The estate was highly encumbered, as will appear later. A large instalment was being paid to the Maharajadhiraja of Darbhanga towards the liquidation of his mortgage decree against the estate. This young lad must have been feeling grateful to the memory of his uncle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rather closer examination. We have said before that while the suit was pending before the Subordinate Judge of Monghyr, this Court was moved on various occasions by one party or the other against various interlocutory orders passed by that Court. One of them was Civil Revision No. 432 of 1923. It was taken up by Das and Ross, JJ., on 1st April 1924, but was adjourned to 7th of May to enable the parties to compromise. On that date it was again adjourned to 16th of May. 68. It was ultimately heard on 21st and 22nd of that month, and judgment was pronounced on 4th June. It is alleged that during the course of the hearing on the 21st or 22nd May the learned Judges suggested that the amount of maintenance should be referred to arbitration, intimating that ₹ 1,000 per month, all arrears and a residence either in Anandgarh or Ganganivas, would be allowed to her. It is alleged that this incident took place in the presence of Mr. Jayaswal and Mr. Murari Prasad, Advocates for the lady, and that Mr. Murari Prasad conveyed this message to the lady, but that she refused this offer and wanted that her claim to the estate should also be referred to the arbitrators and considered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount of the transaction, and he knows perfectly well every detail which counsel expected to elicit from him .... Counsel for the plaintiff might reasonably say that Mr. Wadia had undue facilities for concentrating his mind upon every point of importance and preparing himself to meet every attack that might be made in cross-examination. 72. In this case what transpired before Das and Ross, JJ., has to a very large extent been deposed to by Mr. Murari Prasad, has been commented upon by the learned Subordinate Judge and is disputed by the defendant. Taking the evidence of Mr. Jayaswal now would have placed the respondent in a very false position. We do not for a moment suggest that Mr. Jayaswal would not have spoken the truth, but then he would be deposing to an incident which took place eight years back and after the details had been discussed in two Courts. 73. The respondent would have been handicapped in cross-examining him and thus attacking his evidence which he was certainly entitled to do. Beaman J.'s observations were no doubt on other points dissented from in the Calcutta High Court in the case of Weston v. Peary Mohan Dass AIR 1914 Cal 396 but not the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was held that his memory was at fault.) Now the question arises what were the terms which were settled between the parties, whether it was agreed that the lady would remain the proprietor of the estate till her life, that Suraj Mohan would manage it on her behalf and that till the debts were paid up she would get ₹ 1,000 per month and all her expenses but that thereafter she would get all the income of the estate, Suraj Mohan continuing to manage it; or whether the terms were that the lady gave up all her claims and contented herself with receiving a maintenance of ₹ 1,000 per month. 77. This is the main term. The rest are of minor importance; as, for instance, the term about house or conveyance or sradh and so forth, and except about the jewellery and gardens the difference in some of them is slight. The question resolves itself into the determination of the allegation of fraud made by the plaintiff against Suraj Mohan and his supporters. Is it true that Suraj Mohan originally agreed to terms as alleged by the plaintiff and then fraudulently put others into the petition of compromise and the plaintiff signed the petition on trust? It is true that the lady re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... happened at (1) Simaria Ghat, (2) Monghyr (house of Babu Baiju Mandal), (3) Monghyr Railway Station and (4) Bhagalpur, and we shall also have to consider the incidents which happened at (5) Allahabad and (6) Benares and which relate to the subsequent conduct of the plaintiff. 81. We must state at once that there is practically no direct evidence about the terms of the compromise on behalf of the plaintiff, except the evidence of the lady herself. When asked about her witnesses to the terms of the compromise as settled at Simaria Ghat she said that there was nobody there excepting herself, Surja Mohan and the river Ganges. Later on a witness Rasdhari Kumar (P.W. 8) was produced to depose on this point. We shall deal with his evidence presently. But before we come to that, we have to make some general remarks. The line of attack taken by the plaintiff has been what may be called destructive, that is instead of producing good and sufficient evidence to prove the alleged terms, her main endeavour has been to attack the evidence of the defendant, and the whole contention of Sir Sultan Ahmad, who argued this part of the case before us, has been that the defendants have not been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Maulvi Sayeed-ud-din. 86. The explanation for not examining these witnesses was, as we have already observed, that they were required for working in the case. We have also made some reference to it while commenting upon the non-production of Maulvi Sayeed-ud-din. It was held in the case of D. Weston v. Peary Mohan Das AIR 1914 Cal 396 and Ghandreshwar Prasad Narain Singh v. Bisheshwar Pratap Narain Singh: AIR 1927 Pat 61 that though it is undesirable that a lawyer should appear in a case in which he knows or has reason to believe that he would be an important witness, there is no harm in this giving evidence in a case in which he is appearing. The explanation therefore is unsatisfactory, and we agree with the learned Subordinate Judge that these two gentlemen ought not to have appeared in the case. Mr. Ram Krishna Jha however was more a party than an advocate. The plaintiff was his first cousin, and he had given her financial assistance in the case. If his interest in the case had the better of him than his duty as an advocate, one may perhaps regard him as a party at most and deal with him as such, but the position of Maulvi Sayeed-ud-din was different. In the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to work in the case and had not given the plaintiff a mere excuse for not examining him as a witness. 90. However as we have said on the authority of the two cases referred to above, the fact that Mr. Ram Krishna Jba and Maulvi Sayeed-ud-din were appearing in the case was no ground for not examining them as witnesses. The position of the unfortunate Babu Hito Rai is rather curious. He had signed the petition of compromise and was certainly present at the railway station. His authority was repudiated on the ground that the vakalatnama expressly took away from him the power of compromising the suit. This is worse than a half-truth. 91. It was apparently intended to convey that Babu Hito Rai was not authorized to compromise the suit but that some other pleader was so authorized. In fact however there was only one Vakalatnama in the case under which all the lawyers appearing in the case had authority to work, and this Vakalatnama gave all the pleaders power to act in the case with the exception that they were not authorized to compromise the suit or to refer it to arbitration. There was no distinction between Babu Hito Rai and Maulvi Sayeed-ud-din in this respect. Nor did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 4th August 1926, and 22nd March, 14th April, 30th April and 11th May 1927. 95. So within six weeks of her success in the High Court by suggesting want of authority and improper conduct on the part of Hito Rai, the plaintiff again showed her continued confidence in him by taking work from him as if nothing, had happened; and when the time came for the trial of this case, a suggestion was again thrown out that Babu Hito Rai was in collusion with the defendants as an excuse for not examining him in the case. One very seldom comes across a case in which charges of fraud, collusion and falsehood are so freely made against respectable persons without there being the least basis for any of them. In this case there is nothing but reckless accusations against others which on the slightest scrutiny of the record appear to be absolutely unfounded. We further find from the order sheet that Babu Hito Rai has been signing it on behalf of the plaintiff. 96. It is to be hoped that Babu Hito Rai was not aware of the fact that suggestions of his exceeding his authority and of his practising fraud were made against him by the plaintiff, for otherwise it is impossible to find any excus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shna Jha, on the other hand, deposes that all three went by train and steamer up to Mansi, and from there they separated, Ram Krishna Jha and Ram Bahadur going to Darbhanga and he to Supaul. 98. This being the contradiction as to where they went after the compromise and the evidence that they went to Bhagalpur being given by respectable witnesses, as we have said, we prefer the defendant's version, though as far as the general result of the case is concerned the point is of no great importance. The defendants have examined witnesses to prove that during her stay at Bhagalpur the lady met several persons and admitted to them that she had given up the estate and accepted a maintenance. (After discussing evidence, the judgment proceeded). We have narrated the facts and analyzed the evidence of the incidents which took place at Simaria Ghat, Monghyr, Bhagalpur, Allahabad and Benares. We have read the evidence over and over again very carefully and we feel no hesitation in coming to the conclusion that the finding of the learned Subordinate Judge is perfectly correct and unassailable. 99. We hold that the terms of the compromise as contained in the petition were t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter leaving Monghyr and, as we have said, they have contradicted each other there. As to what transpired at Allahabad, there are two witnesses, but Dharam Narain was not present when Balbhadra made disclosures to the lady and Sudhakar Jha was not present when the lady mentioned it to Dharam Narayan. About the conversations at Benares, Dharam Narayan is again not a witness of what transpired when Mr. Murari Prasad was there. 103. Dharam Narayan Chaudhury was not called till more than a month after Mr. Murari Prasad was examined, and in between the two, six witnesses on other topics were examined. This reminds us of the remarks of Chaudhury, J., of the Calcutta High Court, in the case of the will set up by the lady. It will be recalled that she attempted to obtain letters of administration of a will which was said to have been either lost or destroyed, and the basis of her application was a copy of the draft of the will. Therefore there was no necessity of proving the signature of the testator. In the course of the judgment the learned Judge observed as follows: There is one point which is noticeable in this narrative, namely that most of the incidents taken separately r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. Independent and competent advice however does not mean independent and competent approval. 106. It simply means that the advice should be entirely removed from the suspected atmosphere and should be clear in language and should proceed from an independent person free from any taint of interest, and the party acting should know precisely the nature and the consequences of the transaction. This independent advice is not however essential; in a case where there was no independent advice, the Court will have to consider the probable effect of such advice, if it had been given, on the mind of the lady. In fact, as was pointed out by Das, J., in this Court in the case of Man Singh v. Nawalakhbati AIR 1923 Pat 492 , the rules laid down by the Courts of law for assisting them in determining whether a pardanashin lady understood the nature and effect of a document executed by her are rules of prudence rather than of law, and their application depends upon the particular facts of each case. 107. Each case has facts of its own, and considerations which may arise in one need not necessarily arise in another. This was clearly stated by their Lordships of the Judicial Committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility. She might, especially if the outside adviser had been a lawyer, have altered the shape or form of the transaction, but in substance and result she would have carried out the same purpose and will as are expressed by the deed under challenge. In that case the lady in question had transferred her properties to the legitimate son of her paramour and mukhtar-am from whom sho had had two illegitimate daughters. 109. There was no evidence of any independent outside advice, and it was clear that the only person who had access to the lady and was her adviser was the man whose son was the donee. This case was referred to with approval by Lord Sumner in Faridunnissa's case already referred to. His Lordship observed: Independent legal advice is not in itself essential .... After all, advice if given might have been bad advice .... The real point is that the disposition made must be substantially understood and must really be the mental act as its execution is the physical act of the person who makes it. It will thus appear that each case will have to be decided on its own merits and that the Court will have to be satisfied whether the act in question was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he estate was vested in the executor Mr. Savi, and after the administration it was to go to the residuary legatee Suraj Mohan. When we deal with a compromise of a disputed claim in a pending suit, considerations arise rather different from those applicable to the transfer of vested properties. 112. The principle is certainly the same but its application will be different because the compromise of a disputed claim can be validly brought about even when nobody has a clear notion of the exact rights of either party. The first thing to be considered is the intellect, business capacity and power of understanding of the lady. There may be a pardanashin lady who is illiterate, who has never come into contact with any stranger and who has never had any occasion to fight a suit or deal with Court business A compromise by such a lady stands upon a different footing from one by a lady who is highly intelligent, literate and is in the habit of having direct communication with her legal advisers. 113. Let us now consider the position of the lady before us. In the case of Barkatunnissa Begum v. Debi Bakhsh, Sir John Wallis, after referring to some incidents in the life of the lady ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h have been recorded in vernacular in her own words, and they show that she could speak good Hindi containing Persian and Arabic words, a language which is used in documents filed in Courts. Of course, there are here and there passages in the Maithili dialect as well. She knew the English dates and the English months. When asked about her signature on the will propounded by Mr. Savi, she said that the signature was like hers, but that she was not sure that it was really hers. Surely, this is scarcely consistent with her evidence in this case where she claimed to be unable to read her signature and only able to identify the letters individually. 117. In this deposition she stated that since her husband practised fraud upon her by getting her signature on blank papers for the purpose of a will, she had been careful, while signing documents, to specify the purpose for which she was doing so. A number of vakalatnamas from her are on the record, and in almost every one of them she has clearly indicated the purpose for which she was engaging a lawyer. During her deposition there were occasions when she answered questions put in English before they were interpreted; and when her at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewellery and gardens. 121. In her evidence she mentions the income of the estate, with a slight exaggeration. Apart from her admitted and indisputable knowledge of the nature and extent of her suit, there is very clear evidence that Maulvi Sayeeduddin did explain these things at least to her. Her petition under Section 151, Civil P.C., conveys the impression that she herself heard what Maulvi Sayeeduddin said. In her evidence she denied it and stated that she received his message through a servant. That is palpably false. The fact that Maulvi Sayeeduddin did explain to her the nature of her suit was, as we have said, in a way admitted when the lady's case was put to the witnesses of the defendant. 122. The only question which now remains is whether she understood what she was getting in return for her giving up her suit. That was simple enough. It was a maintenance of ₹ 1,000 per month, ₹ 17,000 in cash, a decree for ₹ 1,00,000 payable in instalments, a suitable house at places of pilgrimage on a monthly rent of ₹ 100 to ₹ 200 and a conveyance. For a lady with the capacity and experience described above there could clearly have been n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that is how I am aggrieved. If this story goes, and, as we have shown, it is entirely false, the question of want of explanation and want of advice does not arise. If her story be true, the compromise propounded by the defendant cannot stand. It would not stand on that footing, even if the person involved was not a pardanashin lady. 126. For a deed to be binding on a person executing it, it is necessary that there should be not only the physical act of execution but also the mental act of intending the execution. In the case of a person who is sui juris and not under any disability, this mental act is presumed if the execution is admitted or proved; a man must be taken to have intended to do what in fact he has done. But documents executed under influence of fraud or by persons who are ignorant, weak and infirm (pardanashin ladies come in this category) will not be given effect to unless the Courts are first satisfied that the mind accompanied the hand in the act of execution. In both the cases, namely when a person labouring under some deception caused by fraud executes a document believing that he is agreeing to one set of terms while the document contains another set of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a pardanashin lady has brought a suit for recovery of ₹ 2,000. The defendant puts forward a petition of compromise signed by the lady in which she has compromised the suit for ₹ 500. The lady admits that she compromised the suit and signed the petition of compromise but alleges that she compromised the suit for ₹ 1,500. The question will be whether she compromised the suit for ₹ 500 only. 130. Once this is proved beyond all doubt, the compromise is binding upon her, provided that the lady knows sufficient arithmetics to understand the difference between ₹ 2,000, ₹ 1,500 and ₹ 500, provided further that the compromise was not brought about either by undue influence or fraud or any other invalidating circumstance. Of course, if the compromise be for a grossly inadequate consideration, that may be an element in the proof of fraud or may indicate that she did not fully appreciate the terms. We will deal with this later. In this case the terms alleged by the lady are if anything, rather mere complicated than the terms contained in the petition of compromise. In the terms alleged by her, there is one, that Suraj Mohan is to manage th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in the petition of compromise (assuming that it contains the terms as agreed to by the lady) which required explanation and which she could not have otherwise understood. He pointed out to us three such terms; and urged, first, that it ought to have been definitely explained to her that her other claims were going to be dismissed as mentioned in para. 8 of the petition of compromise, as the setting of the paragraph was likely to have misled her; second, that she ought to have been told that she would not be able to enforce the charge created on the estate for her maintenance in the execution department and, third, that she ought to have been told that the term contained in para. 6 of the petition to the effect that Suraj Mohan would look after her, would not give her any discomfort and would always be obedient to her, was unenforceable. Regarding the first of these contentions, namely, about the dismissal of the rest of her suit, it is clear that if the lady knew her suit and if she also knew what she was getting, she with her capacity and experience could not but have known what she was giving up. 135. It was therefore not necessary in the circumstances to give her any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about general looking after her and obedience was a term which could be legally enforced, and it is not her case in the evidence that she would not have compromised, had she known the legal effect of this clause. 139. Supposing this particular thing was not explained to her, is there anything to show or suggest that had it been explained to her that the clause had no value in law she would not have compromised the suit? Therefore in our opinion there was nothing in the compromise which in the circumstances of this case required any particular explanation to be given to the lady. As long as the petition of compromise contains the terms which were agreed to by her, it is immaterial whether the petition of compromise was or was not even read over to her or read by her. 140. But as a matter of fact there is good evidence that the draft was read over to her at least once, if not oftener, in the early stages of its preparation, and that the fair copy was read by her and also read to her by Ram Krishna Jha and again by Baiju Mandal in the presence of the Subordinate Judge. Whatever might be said about the reading of the petition by her or to her by other persons, there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not believe that they were indifferent. They must have advised her, and the compromise was certainly with their advice. The lady was also placed by the defendant in touch with Maulvi Sayeeduddin. At the time when the compromise petition was fixed, her lawyer Babu Hito Rai was present, and whatever might be said against him, the fact remains that even after the compromise he continued to have the confidence of the lady and went on working for her. We fail to understand what else could have been proved by the defendant. We therefore hold that in this particular case there was no deficiency in the intelligence of the lady which required to be supplemented by any out-aide help or advice; but assuming that there was, she had ample opportunity of receiving such help and advice which, it is not satisfactorily shown, was really thrown away by her. 144. The lady was quite capable of understanding the business. She did understand it, and willingly entered into it, and the terms of compromise were fully understood by her, and the terms in the petition were read by her and were also read to her. As we have said it is not necessary to notice the cases relied upon by the appellant. Almos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or does not end with the giving of advice to his client and that if the solicitor finds that his advice is not accepted by his client and that the latter is bent upon carrying out an improvident act, it is his duty to refuse to work, were followed. That was however a question of the duty of a solicitor towards his client, with which we are not concerned here. There was no solicitor in this case, and we will show later that the act of the lady was in no way improvident; rather in our opinion, it was in every way beneficial to her. 147. On the other hand, in the recent case of Sheoparsan Singh v. Narsingh Sahay on an appeal from this Court, the Judicial Committee upheld a deed against a pardanashin lady, though there was no evidence of the terms having been explained to her. The deed in question was a mukhtarnama which in the widest possible terms gave power to her attorney inter alia to mortgage the properties of the lady and even to sell them. It was signed in the pen of her father on her behalf in the presence of two witnesses and was presented by her to the Sub-Registrar, and she affixed her thumb-marks to it in his presence. There was no evidence at all that it was read o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f our inherent powers refuse to record it on the basis of the principle enunciated in Neale v. Gorden Lennox (1902) AC 465 , a principle which was applied by the Calcutta High Court in the case of Tarubala Dasi v. Sourendra Nath Mitra: AIR1925Cal866 and not dissented from by their Lordships of the Privy Council in appeal from that case. A consideration of these questions involves in a way the trial of the suit itself. Ordinarily, when investigating the fact and lawfulness of a compromise under Order 23, Rule 3 it is irrelevant to examine the strength or weakness of the suit itself. We agree in the observations of my Lord the Chief Justice of this Court (Sir Courtney-Terrell) in the case of Mahabir Tewari v. Chhathu Tewary: AIR 1932 Pat 170 and are of opinion that when a compromise is in dispute, the party repudiating it, on whatever ground it may be, cannot reasonably ask that the entire suit be reopened. In the above case the question involved was whether a compromise partition decree should be set aside on the ground of fraud. 151. His Lordship observed: Sometimes also the Court proceeds to examine whether the plaintiffs claim was well-founded in law--an equally irre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he position of the estate? (3) Is the absence of provision for the (barkhi) sradh unjust? Was the lady entitled to any such provision? (4) What were the chances of plaintiff's success in respect of her suit for her alleged personal properties namely, the jewellery gardens, etc.? (5) What were the chances of the plaintiff's success as regards her claim to the shebaitship? (6) What were the chances of success of the plaintiff's case in respect of the estate? (7) Is the compromise for no consideration or for a grossly inadequate consideration? (After examining the financial position of the estate and the extent of the indebtedness, the judgment proceeded.) What we have said above leads us to the consideration of the question of the reasonableness of the amount of maintenance. 154. Here again we do not wish to approach it with a view to fix a maintenance but simply to consider whether the maintenance fixed by the compromise is grossly inadequate. The lady got ₹ 1,000 per month together with about ₹ 200 per month for house rent during the period she may be away from Bhagalpur and a conveyance which would ordinarily cost about ₹ 100 per month, the tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll was very modest, being only ₹ 100. For his own sradh he had provided only ₹ 500. Apart from the provisions made in this will we have to see what her husband himself considered to be sufficient for her. 158. In the earlier will of Ugrah Mohan Thakur known as the Darjeeling will, which is referred to in the judgment of Chaudhury, J., (Ex. U), she was allowed only ₹ 500 per month. It is true that the maintenance of the wife does not depend upon the sweet will of her husband, but the Courts in fixing maintenance have to consider the circumstances of the estate and the wishes of the husband. Even during the lifetime of her husband she was not getting a large amount for expenses. She admits that her husband used to give her ₹ 100 per month. This was perhaps for her pocket expenses only, but according to Ex. V, the deposition of Mr. Savi in the Calcutta will case, during his lifetime Ugrah Mohan Thakur used to give her ₹ 25 to ₹ 50 for this purpose. In her evidence in the Calcutta will case she admitted that during her husband's absence in England she got ₹ 25 per month for her pocket expenses. 159. Now let us see what was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of such a provision in the present compromise is unjust inasmuch as the plaintiff is bound under the Hindu law to perform her husband's annual sradh and its expenses would be a burden upon her. Reliance has been placed upon some passages of the Vivada Chintamani (Tagore's Translation, pp. 288, 289 and 290) and on the cases of Dalel Kunwar v. Ambika Partab Singh (1903) 25 All 266 and of Sundar ji Damji v. Dahibai (1904) 29 Bom 316 . Now the Vivada Chintamani is not a book on ritual but on law proper. The passages relied upon occurring in the chapter on Succession to the estate of one who loaves no son. The first passage relied upon runs thus: The right of performing funeral obsequies is settled according to the following authority: the son, the son of a son and the son of a grandson; hence their right of inheritance, which is similar to the right of performing funeral obsequies, is likewise established. Therefore in default of a great grandson, the estate devolves on the widow. 162. Emphasis is laid on the last clause, and it is argued that the widows right of succession is based upon her right to perform the funeral obsequies. The second passage re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er laid down in the text, 'the son, the grandson, or the great grandson,' the right to succeed to the wealth which is similar to it is also settled. 166. The last sentence therefore in default of a great grandson the estate devolves on the widow as mentioned in Tagore's translation is not to be found in Setlur's translation and is, in the original a part of the next paragraph without the word therefore and this changes the entire complexion of the passage. If therefore of Tagore's translation is not there the plaintiff's contention fails. Similarly Tagore's translation of another passage about sradh quoted above does not tally with that of Setlur's. The latter runs thus: 23.: AIR 1928 Pat 466 By the enumeration of sradh, it is meant that she shall perform the obsequies, anniversaries, etc., of the deceased. The meaning is that she shall take the entire wealth. If this translation be correct, it seems clear that the obligation to perform the annual sradh is dependent upon taking the wealth. It is not the appellant's case that the question is directly in issue, and as it has not been fully argued before us, we do not propose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y's claims in the suit. It is possible that if detailed evidence had been adduced by the parties, the lady might have succeeded, but it is no less possible that she might have lost. The personal properties have been referred to in Schedule C of the plaint. They consist of four gardens, jewellery and moveables. The value of the gardens has not been given in the plaint, but from the documents produced in the case it appears that they are worth a few thousand rupees. The value of the jewellery and the moveables is given in the plaint as about ₹ 31,000. As to the title to the gardens, reliance has been placed upon the fact that their title deeds stand in her name. They are Exs. 10 and 25(a). 170. It seems that the gardens were purchased first from Fakir Mandar in the benami name of one Lakhi Prasad Dubey and afterwards transferred in the name of the plaintiff. Ex. 9 is the wrapper in which the deeds were kept, and on it, it is written in the handwriting of Ugrah Mohan Thakur himself that it contained documents relating to the properties of the plaintiff. No doubt this is prima facie evidence in favour of the plaintiff, but it is not unusual for people to acquire proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just on this ground. As we have said before, the dedicated properties are of two kinds: one was dedicated by Madan Mohan Thakur, an ancestor of Ugrah Mohan Thakur, and the other by Ugrah Mohan Thakur, himself. 174. It has been contended on behalf of the plaintiff that the will had no effect whatsoever on the shebaitship of the trust properties; that being the heiress of the deceased husband, she was entitled to it and that therefore her suit was bound to succeed in this respect. Reliance was placed on the case of Panchanan Bannerji v. Surrendra Nath Mookerji: AIR1930Cal180 . On the other hand, it is contended for the respondent that the shebaitship cannot devolve upon the plaintiff. So far as the trust created by Madan Mohan Thakur is concerned, on Ugrah Mohan Thakur's death it devolved on the available heir of the dedicator (Madan Mohan Thakur). A genealogy of the family will be found in the affidavit of Kishore Mohan Thakur; which is on the record of this case. The deed of dedication is not before us. In the case of Jagannath Prasad Gupta v. Runjit Singh (25), it was held that where a shebait did not appoint his or her successor and where there was no other provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to say that the claim of the lady to the shebaitship cannot be said to be so clear as to enable us to say that it was unjust to deprive her of it. Again, the shebaitship is nothing but an office, and if id went to Suraj Mohan Thakur, who was to be the legatee of the bulk of the properties and who was to manage the estate, the compromise cannot be said to be unjust or improper on that ground. 178. It has been already stated that the plaintiff's claim to the estate was based on the allegation that the will was forged, that the probate was obtained by fraud on account of her two Karpardazes, Tajeshwar Jha and Kishori Jha, having colluded with the defendant, and last but not least that the Mithila law made the bequest of the entire property to Suraj Mohan Thakur void; firstly, as under that law she was a coparcener of her husband with power to force a partition upon him, and secondly, as under that law a gift of the entire property by a man having a wife, or at least without her consent, is void. We have already said that her story about the probate having been obtained by fraud had, on the face of it, very little chance of success as she made her charges against Tajeshwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hintamani by Tagore, the 1863 edition of which is before us, some of the relevant passages are not to be found in any published translation of the book. 183. The parties have produced translations of these passages by translators of their own choice, and these are admittedly not satisfactory, as will be presently seen. Even authentic texts are not available. For instance, the first proposition is sought to be supported by a passage in the Vivada Chintamani published in Calcutta in the year 1837, of which a copy is an exhibit in the case. Another edition of the book published at Bombay in 1898 is more easily available and has been constantly referred to at the Bar. It was admitted that the text of the Bombay edition differs from the text of the Bengal edition at places to such an extent that the meaning is changed. The disputed passage has been translated by four translators: two on behalf of the plaintiff, namely, Pandit Ishvari Datta Dhurga Datta and Pandit Ram Autar Sharma, and by two on behalf of the defendant, namely, Dr. Ganga Nath Jha and Pandit Bhagwat Kumar Shastri. These translations are unsatisfactory. Not only does one set of translators for one party differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them. We therefore proceed to do so, especially as the learned Subordinate Judge allowed the lady to adduce evidence by examining translators, and his order was upheld by this Court: vide the order passed by Das and Adami, JJ., on 17th December 1926, in Civil Revision Cases Nos. 634 and 635 of 1926. 187. Ugrah Mohan Thakur was a Maithil Brahmin and was governed by the law of the Mithila School which, as their Lordships of the Judicial Committee observed in Sourendra Mohan Sinha v. Hari Prasad Sinha is the law of the Mitakshara except in a few matters in respect of which the law of the Mithila School has departed from the law of the Mitak shara. It has been contended on behalf of the appellant that, according to the law of Mithila School, the wife is a coparcener of the husband, and co-owner (with him) of his property, and that it is not competent to the husband to alienate his entire property without the consent of his wife among other relatives. 188. This contention is rested almost wholly on Vachaspati Misra's Vivada-Chintamani, a fifteenth-century digest of undoubted authority in Mithila. Reference has also been made to Chandesvara Thakur's Vivada-Rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the schools. (The editions of the Mitakshara now in use number the first verse in the Dayabibhaga Chapter as 114, while Colebrooke's copy made it 115, and the discrepancy continues throughout the Chapter with its thirty-six verses.) Yajnavalkya further excepts debts contracted for family purposes from the category of the debts incurred by a wife which her husband is under no obligation to pay off--see p. 73 of Gharpure's Mitakshara (English Translation) in his Collections of Hindu Law Texts; and this obligation to pay debts contracted by the wife for family purposes is somewhat similar to the obligation of coparceners to pay debts contracted by one another for family purposes, which is laid down by Yajnavalkya in the preceding verse 2, 45. 191. This may however rightly be regarded as a question not so much of the wife's interest in the husband's property as of her implied agency. The wife's interest in the husband's property is also shown by the fact that when a father divides his property equally among his sons, he is required to give equal shares to his wives, if no separate property should have been given to them by him or his father (see Ya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aclean, JJ. held that: no doubt a wife under the Hindu law is entitled to a share when a partition takes place, but she has no right to take the initiative herself and demand partition, although when a partition does take place she is allowed a share. 194. It is also settled that a Mitakshara wife takes not by survivorship but by inheritance. Yajnavalkya's well known verses about the order of succession-- the wife, and the daughters also, both parents.... (Yajnavalkya, II, 135-6) are taken by Vijnanesvara to refer to the estate of a man who, being separated from his co-heirs and not subsequently reunited with them, dies leaving no male issue (Colebrooke's Mitakshara, II, 1. 39), while the son, the grandson and the great-grandson, take the estate in virtue of their right by birth. Colebrooke introduced the term coparcener to indicate such members of a joint Hindu family, and the term is now fully established in Hindu law, though its inaccuracy from the point of view 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made equal sharers --so (says) the Ratnakara. 197. The alternatives shown above and below the line in the brackets represent the contentions of the appellant and the respondent respectively. Tagore's rendering substantially agrees with what the respondent has contended for in this Court. According to the appellant's contentions, the sentence makes partition between husband and wife unconditional, and the text referred to, which is the second quarter of a verse of Yajnavalkya's, II, 115, is also taken to lay down an unconditional obligation to make wives equal sharers. But the original has no verb expressed for the subject partition, and the context alone can show whether it was meant to be is or may be. The predicate of wives in the quotation from Yajnavalkya is 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 Colebr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same principle in the same context (see the translation by Sarkar and D. Chatterjee, Ch. 8, para. 8 at pp. 34--35). The expectancy in connexion with the sentence under discussion would be regarding the circumstances in which, according to Vachaspati Misra, there is to be partition between husband and wife, and regarding those in which wives are to be made equal sharers. There would also arise an expectancy regarding the persons with whom wives are to have equal shares or whether the text means that the wives are to be equal sharers inter se. 201. It thus seems essential, in order to ascertain Vachaspati Misra's meaning to consider the context in which the sentence occurs, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erely because he was supposed to know Sanskrit grammar; but if so, the evidence shows that he is prepared to accept or justify such obvious misprints or inaccurate readings as (tadanumata saddeyam) on p. 37 and (patnyanamatyapeksha) on p. 38 of the Calcutta edition of the Chintamani, while making many difficulties about a reading of Katyayana's verse beginning with (sarvasvam), on p. 37, which he and Professor Sharma call unmeaning or almost so, but which several commentators and translators--and the witness himself, in another context, in an unguarded moment (not withstanding his unsatisfactory statements about it at 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... task, he claimed, for which he must be paid an expert's fee in advance. Other scholars, according to him, give to the word (anvaya) too narrow a meaning by making it equivalent to issue, offspring or progeny; of his own wide outlook and Sanskrit scholarship (as he calls it at p. 435) we have evidence in his translation of (putrah) by children (of different kinds) in the heading of a section of the Chintamani (see Tagore p. 278) which deals with the 12 kinds of sons to the exclusion of daughters. His ready admission that (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sharma's pedantry at p. 426 of the evidence, is entirely unsuitable in context, as may be seen on a glance at the opening verse and the entire contents of the section so headed. 211. Dr. Jha's published volumes on the Manu Smriti with Medhatithi's commentary--a work undertaken by him for the Calcutta University--afforded much material for cross-examination, and he had to maintain that the publication was inaccurate at place after place, on some 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 imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asimha Appa Row v. Rangayya Appa Row (1905) 29 Mad 437 there does not seem to be any provision in the Evidence Act or other law which renders such evidence admissible in a case like the present. 216. The fact is that much of the work done and evidence given by these translators would have been really valuable as an argument from one side 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 evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... divided. (The reference in this translation to the estate is inserted on the basis of the Mitakshara: see Gharpure, p. 82.) The first part of Vachaspati Misra's comment on this verse is as follows: The meaning is that before partition (there can be) no legal transaction such as suretyship, etc., between 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 perf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already quoted, namely: 19. And with respect to the acquisition of property. 20. For they declare that it is not a theft if a wife expends money on occasions (of necessity) during her husband's absence. (3) The 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 part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of wealth between husband and wife--as to this being the meaning of the text there is no doubt. 226. Both these appear to 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 transla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to jaya, bharya or yoshit was o# any consequence in this context, after 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 q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;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 against woman's capacity of holding wealth as the Professor's rendering would require u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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) while (the estate is) undivided in the verse does not refer to husband and wife since there can be no division of wealth between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 be confined to showing that the premise from which the purva-pakshi started was entirely untenable; and Vachaspati Misra's conclusion would be not a negation in toto of the purva-pakshi's conclusion but an admission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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,) partition during the life-time of the father : see pp. 228-30 of Tagore's translation. He there first deals with Yajnavalkya II. 114: when the father makes a partition, let him separate his sons (from himself) at his pleasure, and either (dismiss) the eldest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 recognized is a much conditioned obligation of the father which, according to the commentator, is restricted to his self-acquisitions. The obligation such as it is, may be taken to import? a corresponding right, but the right to receive a share in certain conditions cannot be looked upon as a right to demand a share where, as here, the conditions are not such as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 that (subject to allowance for stridhan already received from the husband or the father-in-law) each wife was to get the same share as each of the sons. Taken by itself, the quarter-verse may mean that each wife was to have the same share as the husband, irrespective even of the existence of any sons, but this was not Yajnavalkya's meaning, nor is there any reason to think that it was taken to be so by Vac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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, expressly says that the wife has no right to claim partition from her husband, but may have Vibhaga--may be given a share--as laid down in a later verse of Yajnavalkya's. 257. This, however, is not a substantial difference. Vijnanesvara deals with Yajnavalkya's verses in the order shown by their numbers, and has thus to explain the word (avibhakte) in the suretyship verse (II. 52) before coming to Daya Vibhaga which begins with II. 114. Vachaspati Misra deals with II. 114 115 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 vibhaga is merely a right to receive a share in the conditions laid down, and not an unqualified right of partition. The appellant is not, in our opinion, entitled even with the assistance of the Mitakshara, so to read Vachaspati Misra's concluding sentence as to get rid of the conditions recognized by him, no less than by Vijnanesvara, in the comment on Yajnavalkya 2, 114 and 115. 261. As regards the form : it is a necessity of language, in speaking of a partition between two partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 must be into equal shares. Regarding the mother's share at such a partition, there is not much to be found in the Mitaksbara. Vijnanesvara's introduction to Yajnavalkya II. 115 speaks of division at the pleasure of the father only, and this prevents the direct application of that verse to partition at the instance of the sons so as to entitle the mother to an equal share at such a partition. The principle can however be applied in such cases as Mr. Jha concedes, under the doctrine of (atidesa) extension by analogy, and this in substance is what was done in Laljeet S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Vachaspati Misra comes to Yajnavalkya 2, 122 in his section on the participation of sons born after a partition (Tagore, p. 275), he does not, unlike Vijnanesvara, say anything, suggesting the allotment of a share to the mother; in fact he makes no comment on the word Vibhagabhak except that it means is worthy of a share (Setlur p. 261) or perhaps more accurately, is entitled to a share . 267. But this does not affect the right of a son to claim partition of ancestral property, and it may be assumed that Vachaspati Misra did not differ from the Mitakshara as regards that right. If so, the line of reasoning adopted in Laljeet Singh's case (18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin 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 partition after the father's death and partition among brothers by different mothers . It will be seen later that the right to demand a partition of the ancestral property from the husband, which Mr. Jha claims for the Mithila wife, is not reflected in the stridhan section of the Vivada Chintamani, even though that section is not confined to woman's peculium but extends to (bhartri-daya) a word interpreted by Vachaspati Misra not in the ordinary sense of husband's heritage but in the wider sense of husband's wealth whether devolving on the wife by inheritance, or coming to her by gift inter vivos. 271. When Mr. Jha could not find any passage in the Vivada Chintamani dealing with the wife's right in the husband&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sentence in the comment on Yajnavalkya II. 52 contemplates no vibhaga for her except what is based on Yajnavalkya II. 115 and that a right to claim partition of ancestral property in the husband's hands cannot be read into it on any of the many grounds so earnestly urged by Mr. Jha. We see no reason why the wife's apparently unquestioned right to a share in the ancestral property when a son obtains partition from the father should not be derived by (atidesa), analogy, from the provisions of Yajnavalkya II. 114-5 under the Vivada Chintamani as under the Mitakshara in Laljeet's case (1873) 12 BLR 373. The wife's position in respect of ancestral property under the Vibhaga Nirnaya passage of Vachaspati Misra does not seem to us any better than under the Mitakshara. 274. Vachaspati Misra's con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The learned advocates have taken us practically into the whole of the chapter in the Vivada Chintamani, but it is necessary to deal with a few references only. At more than one place Vachaspati Misra makes it clear that in his view the wife of a deceased brother is not entitled to a share of the family property, and there is no dispute that that is the Mithila law, as it is also the law in the other Mitakshara Schools. 277. Vachaspati Misra has, perhaps, put this most pointedly not in the section on partition during the life-time of the father, though he has occasion to mention it more than once in this section (see Tagore, pp. 232 and 239), but in the section on Succession in default of a Son, where immediately after quoting Balarupa on the text of Harita, he comments: When the husband dies without partition with his co-heirs, he has no sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 husband's death. Nor has Mr. Jha seriously attempted to show that Vachaspati Misra or any other commentator has actually recognized for the wife a coparcener's right limited to the life-time of the husband. Turning now to the section on the Separate Property of Women -we find Vachaspati Misra giving his own classification of stridhan-(see Banerjee's Marriage and Stridhan, pp. 336-8), and then dealing with a woman's rights not only over stridhan, moveable or immovable but also over her husband's property which becomes hers on the death of the husband in default of other heirs-(Setlur, p. 256). 281. He quotes a verse which is thus rendered by Tagore (p. 261): Katyayana says, that a woman, on the death of her husband, may enjoy his estate according to her pleasure; but in his life-time she should carefully preserve it. If he leave no estate, let her rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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: By the husband marrying a second wife, his first wife becomes superseded. What is given to her by the husband at the time of separation is called money given for the supersession adhivedanikam (Setlur p. 255.) 284. Mr. L.N. Singh for the respondent has argued that if the Mithila wife really had a right to obtain partition of ancestral property from her husband one of the most natural occasions for her exercising that right would have been her supersession by a second wife when the text requires her to be compensated with the adhivedanika fee. There is however no trace of any such right in Vachaspati's entire treatment of stridhan. The respondent's argument is of course negative. While therefore too much stress must not be laid on it, we may observe that the comment on the word avibhakte in Yajnavalkya's suretyship verse is plainly much less suitable an occasion for dealing with the wife's right contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; 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 that a Mithila wife is entitled to demand partition at her discretion; the Dvaita Parisishta also does not give her any partition or share from the husband except in accordance with the first half of Yajnavalkya II. 115; and the Vivada Chintamani is also against the appellant's contention, though his omission to quote the first quarter of Yajnavalkya II. 115, or like the Ratnakara to say kvapi, or to refer to his previous treatment of the verse has led to this elaborate controversy. 288. In this state of the authorities it is plainly impossible to accept the appellant's contention that a wife in the Mithila school is entitled as a matter of right to demand partition from her husband at her own discretion. The other passages from the Vivada Chintamani relied on by the appellant occur in the chapter on Subtraction of what has been given -(Tagore, p. 72). The dispute between the parties will be rendered clearer if the whole context is considered. Vachaspa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the case of all these four (things)-a son, a wife, the entire wealth and what has been promised.... 290. Pausing here for a minute, it is safe to say that this part of the comment is corrupt. Not only is the word tatra, there, in the middle of the first sentence superfluous and inappropriate in the context, but the want of independence in regard to a son and a wife affirmed in that sentence conflicts with the concluding portion of the above comment where a son and a wife are expressly included among the four things that may not be given in spite of the donor's independence with regard to them. In the first part of the second sentence a distinction is made between a son and a wife on the one hand and (sarvasva), the entire wealth, and (pratishruta), what has been promised, on the other, which however is ignored in the summary at the end and is perhaps not very clear, but seems to imply that apart from the texts the donor is independent (svatantra) in regard to the sarvasva and the pratishruta only, but that as regards the son and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposit, a yakita (1), a pledge, joint property, a deposit, a son, a wife, the whole property of one who has offspring, and what has been promised to another man; these have been declared by the spiritual guides to be inalienable by one in the worst plight even. (1) Dr. Jolly in his foot-note refers to II. 14 for the meaning of these technical terms and says that the prohibition of such gifts as would leave the family destitute appears to relate principally to charitable donations and religious endowments. Pandit Ishwari Dutta could not have been aware of this foot-note when he said that Dr. Jolly did not understand the first two words. (What Dr. Jolly has called inalienable in this translation is adeya in the original). Having quoted near the beginning of the chapter a verse of Narada's in which it was said that what may not be given is eight-fold, Vachaspati Misra's first comment on these varses is directed to showing that though the things mentioned in these verses in fact seem to number nine, the number must be taken to be eight. The comment is: Son and wife are here included in one compound and thus form one single predicable; (and) from this unity (of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e East, Vol. 14, p. 75. 296. The dispute between the parties is regarding whether under the Mithila law the consent of the wife is essential to a husband's bequest of his entire estate. The texts do not deal with bequests, but the law of wills and bequests by Hindus has been held to be a development of the law of gifts inter vivos, and wills are generally to be regarded as gifts to take effect upon death as to the property which they can transfer: Tagore v. Tagore (1872) 18 WR 359 . The three Smriti texts quoted do not specifically refer to the wife's or any other relative's consent in connexion with the gift of the sarvasva (the entire estate); but one of them-Narada's-does refer to the existence of anvaya. The primary question thus is whether Vachaspati Misra has in fact interpreted the texts to mean that the wife's consent is essential and taken that to be the law in Mithila notwithstanding what he states to be the view of the Smritisara. 297. It will be observed that Brihaspati, who is first quoted in the adeya section, mentions sarvasva sans phrase among the eight things that may not be given. In the earlier part of his comment on. Brihaspati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s swayed by modesty and considerable deference to the views of other distinguished commentators already quoted. Vachaspati Misra, as has been already shown, does not feel any hesitation in directly expressing his dissent from such a work of special authority in Mithila as the Ratnakara, or (according to the appellant) in referring even to the Mitakshara without a semblance of much respect. Nor has Mr. Jha been able to show from the context from what recognized predecessor Vachaspati Misra was differing on the present occasion, if in an unusual excess of humility he decided to express his own view in this peculiar, indirect form. Vachaspati Misra could, of course, put his own gloss on Katyayana or Narada or Brihaspati, and reconcile in his own way such conflicts as he chose to notice in those Smritis or others. 300. But it was out of the question for him to differ from any of them. Katyayana, as a matter of fact, says nothing about the anvaya, but Vachaspati Misra himself has already introduced anvaya in his comment on Brihaspati, in view (doubtless) of the text of Narada and possibly other Smritis (e.g. Yajnavalkya II. 175), and in the comment on Narada he adopted the interp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wife and sarvasva may not be given without the consent of certain persons (whose identity falls to be determined). Now, they predicate in Katyayana's first sentence (na) neyah should not be brought, like the adjective, anichohavah (unwilling) is masculine and plural, darah, the word used for a wife, is in Sanskrit a masculine plural, putrah, a son being masculine and singular; and both are in the nominative case, while sarvasvam is neuter and singular, and in the nominative or the accusative case. 303. There is an elementary rule of concord between substantive and adjective in Sanskrit grammar which requires that an adjective, whether used attributively or predictively, should agree in gender and number with the substantive to which it refers. But when the substantive qualified includes words of several genders, the rule is that the adjective must agree with them in their combined number, and that as regards gender, the adjective must be masculine if the words qualified be some of them masculine and some feminine, and neuter if they be some of them masculine or feminine and the rest neuter. In accordance with this rule, the first predicate (na) neyah will go with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofessor Ramautar Sharma has taken the adjective anichchavah to refer to the wife and the son, while extending the predicate neyah to the sarvasva as well. 306. A more literal rendering of the verse is, however, possible, and Mr. Jha has not suggested that the rendering we have adopted on the basis of Dr. Bhagwat Kumar Shastri's translation departs in any respect from the words of the original. As the verse does not mention anvaya at all, and as, on the question of consent, it refers to the wife and the son only through the adjective anichchavah, what Vachaspati Misra sayg immediately after the quotation from Katyayana must obviously be taken not merely as his comment on Katyayana, but also as a continuation of his comment on Narada which indeed led to the quotation from Katyayana. The first part of this later comment is that in the absence of the consent of those three, these three should be enjoyed by one's own self. 307. The demonstrative pronouns those and these in Sanskrit, as in English and other languages (such as Persian), refer to objects regarded as distant or near respectively. These three, it is common ground, are the wife, the son and the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sarvasva inalienable without the consent-vimatau again - of the anvays including the son and the wife-there being no possibility here, even according to the appellant's interpretation, of the donor himself being among the persons whose vimati is in question. Those three cannot, therefore, be taken to be the son, the wife, and the donor. The pronoun must refer to something earlier than Katyayana's verses, and we must therefore go back to the comment before them. 310. Now Vachaspati Misra begins that comment by saying that the son, the wife and the sarvsava must not be given even in a time of distress without the consent of certain persons or bodies of persons, putradaradyanvayanam, but may be given with their consent. In support of the latter position he cites Katyayana, and then continues that without the consent of those three these three should be enjoyed by one's own self, but that with their consent, there may be a gift. According to the appellant the expression putradaradyanvayanam means of the anvayas, namely, the son, the wife and the like : the compound (samasa) being the appositional karmadharaya, and not the copulative dvandva, and anvaya, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sarvasva may not be given without the consent putradaradyanvayanam is also the view of the Vivada Chintamani, the Vivada Ratnakara and other works; this is plainly wrong so far as the Vivada Ratnakara is concerned, as will be seen presently. It is also significant that this Vivadarnavasetu uses putradaranvayanam, and not putradaradyanvayanam, in commenting on Katyayana, and like the Vivada Chintamani speaks of the existence, as distinguished from the consent or otherwise, of the anvaya alone in connexion with the gift of the sarvasva in several places. Wrong manuscripts and unscholarly editions have frequently to be corrected according to grammar and sense, but it is a recognized principle that efforts ought to be made to interpret the texts as far as possible according to the readings actually found, and that caution should be exercised in correcting such readings. 313. It is convenient however to deal first with the emendation adopted by the respondent's pandits. They would read the word as putradaranvayanam; and if that be the correct reading, it is beyond question that the sentence would mean that the son, wife and sarvasva are, even in a time of distress, not to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e quotations from Vasistha he says that an only son may not be given even if he be agreed to the gift, which again suggests that what was thought essential to the gift of a son was his consent and not that of any others included in the expression putradaranvayah on even putradaradyanvayah as the Calcutta edition has it. 315. The Vivada Ratnakara also (see pp. 128-9 of the edition in the Biblietheca Indica, 1887), makes the following comment on the two verses of Katyayana: Here as in the former text (1) as regards son and wife, gift and the like even in dire distress is prohibited, and as regards sarvasva, when there is anvaya, the same is prohibited even in dire distress, by the text in a time of distress (gift and the like) however may certainly be made, gift and the like should be understood to be, in the case of the wife and son, with their consent, and in the case of sarvasva, with the consent (2) of the anvaya; there can be no gift and the like of unwilling wife and son, nor of the sarvasva without the consent of the anvaya (3) thus there is no inconsistency. (1) This apparently refers to a quotation from Daksha, which however omits the son. Narada IV. 4 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be that the observation of Vachaspati Misra would be indefinite not merely in connexion with the gift of the wife but also in connexion with the gift of the son and the sarvasva. The presence of the adi is therefore not a sufficient reason for taking the compound to be a karmadharaya rather than a dvandva; and there is authority for preferring a dvandva to a karmadharaya where possible-see for instance maxim No. 40 at p. 365 of Sarkar's Mimansa Rules of interpretation and the judgment of Nanabhai Haridas, J., at pp. 465-6 in Moro Vishvanath v. Ganesh Vithal (1873) 10 BHC 444 . It was faintly suggested for the appellant that with the adi the yathasankhya rule would be difficult to apply. 318. But the difficulty suggested only was that the dvandva way of dissolving the compound involved a tautology on the ground that a son must in any view of the matter be included in the anvaya. There is however no substance in this; if the consent of three bodies of persons required to the gift of three things respectively it is by no means necessary in logic that the three bodies should be mutually exclusive. As has been already observed in dealing with the readings that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not really be necessary to observe that the Amarakosha does not mean that the word anvaya in all its senses is equal to the word vansha in all its senses-it cannot for instance mean a bamboo which is one of the meanings of vansha; but much stress has been laid on behalf of the appellant on gotra as a synonym of anvaya according to the Amarakosha, the argument being that as the wife is born on marriage into the husband's gotra, she is therefore part of his anvaya if not an anvaya herself. This however overlooks such facts as that according to a passage from Medhatithi's commentary on Manu VIII. 46 (Gharpure's number is. 47) which was put to Dr. Jha by one of appellant's advocates below, kula which is given in the Amarakosha as a synonym along with gotra of vansa and anvaya, means a part of the gotra, that there is a controversy regarding the fictional gotra of the wife after her death-see the Mitakshara on Yajnavalkya I. 254, and that the fictional birth of the wife into her husband's gotra does not seem to have taken by any vyavahara authority to place her on the same footing as her husband's santati, another synonym for vansha. 322. In his com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anu. 324. In this last context, however metrical exigencies may possibly account for the use of the word anvaya to denote not the vansha but an individual born in it, such use being permitted by the doctrine of upalakshana referred to by one of the witnesses and briefly explained (for law purposes) in paras. 380-382 of Ganapathi Iyer's Hindu Law, 1915, and relied on by Mr. L.N. Singh for the respondent; this will be again referred to later on. In the last two examples, a given descendant has been called an anvaya, but this will not make the word anvaya before us quite intelligible if it is to consist of or denote the son, the wife and others of a like character. Even with her change of gotra, the wife is not placed on the same footing as a son, it would be absurd to regard her as a descendant of the husband. In Kalidas's Sakuntala, Dushyanta, a descendant of Puru, refers to a child as belonging to the same anvaya as himself on hearing that the boy was a descendant of Puru. Without elaborating the point any further, it seems safe on these references, including the dictionaries, to say the word anvaya is not usually employed to denote an individual and that its ordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seem to have impressed the Professor's philological sense (see p. 423 of his evidence) is after all not without authority even in Mithila; and it is not open to the Courts by a novel interpretation of the not uncommon word anvaya to include the wife in its denotation on little more than philological and etymological grounds. The word anvaya is also found in Yajnavalkya II. 117 tabhyasritenvayah, which Colebrooke has rendered by and the issue succeeds in their default - see Colebrooke's Mitakshara, I. 3. 12. This was in answer to the question who takes the residua of the mother's goods if there be no daughter. The Mitakshara here explains anvaya by putradih which Colebrooke takes to mean the son or other male offspring. Visvarupa makes it sons only (see Ghose Vol. 2, p. 21). The context of course excludes the possibility of the word anvaya including the wife, but such interpretations are in accordance with Amarasinh's synonym santati, or santana. 328. This verse is also quoted by Vachaspati Misra in his section on succession to a woman's separate property, and his comment on the word anvaya which comment is ignored by Tagore altogether though he tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indeed he does not make it himself, by svajanitaputrasahita, with the son borne by herself. As in this context it was a woman's anvaya that was being spoken of, the word could not of course include the wife, but it is important to note that other relatives of the woman are also all necessarily excluded. Near the end of the section of partition during the life-time of the father two verses are quoted under Tagore's heading of a coheir in which the expressions tadvanshasya and tadanvayasya occur; these are rendered by Tagore (p. 241) as (of) his male descendants and (of) his lineal descendants, Setlur Tendering both vansa and anvaya by progeny. Much reliance has been placed by Mr. Jha on Vachaspati Misra's comment (along with its sequel) on a verse of Katyayana's in the section on Succession to property of re-united parceners -(Tagore, p. 307, and Setlur, p. 273). 331. The verse is thus translated by Colebrooke in his digest Book V. Ch. 8, Section 1, verse 427: on failure of nearer claimants, re-united brothers must be considered as heirs of those who are re-united and disunited brothers of those who are disunited; (for) they reciprocally share ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased it by nirapatya, a word which clearly means without issue. Ratnakara (p. 602) paraphrases it similarly by santana rahita, again clearly without issue. Bija cannot mean the wife, and can only mean the issue or offspring: see for example Colebrooke's Mitakshara II. 1. 18 where Gautama's text is thus rendered by Colebrooke or the widow of a childless man: and she may either remain chaste, or may seek offspring, the last word offspring being the rendering of bija in the original. 333. Several other passages have been referred to on behalf of the appellant in order to make out a case for the inclusion of the wife in the term anvaya. It does not however appear that they really go far towards establishing the contention. There is, for instance, a verse from Manu VIII.198 which Vachaspati Misra has quoted both in the Chapter on Sale Without Ownership and in the chapter on Women and Other Matters,' where Tagore has put in a heading Gift or Sale without Ownership, which does not occur either in the Calcutta or in the Bombay edition, (Tagore, pp. 56 and 222). In the later chapter the Calcutta edition prints the word on which reliance is placed by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, rather than such considerations as whether the wife has such a relation to the husband as to make her sanvaya in reference to him in other contexts. In Manu II. 168 it is laid down that a twice-born man who does not study the vedas but applies himself to other (and wordly) studies soon falls to the condition of a sudra with his anvaya. Dr. Buhler at p. 61 translates the word sanvaya by descendants Kulluka renders sanvayan by putrapautradisahitah, with his son, grandson and the like,' and if this be somewhat vague, Medhatithi renders it by the expression putrapautradisantatya saha with his progeny (santati) headed by the son and the grandson. The explanation given by these commentators in this contest seems to exclude the wife from the denotation of the term anvaya used as a collective noun, the use with which we are concerned. 336. We have not been referred to any context with the word anvaya in it which is more helpful in interpreting the same word in sarvasvam chanvaye sati. Reference was also made to the interpretation by the commentators Medhatithi and Kulluka of the word kula in such verses of Manu as II. 184, VII. 9, VIII. 46 and IX. 7. The last two however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s commentators often say that a singular or a plural number was not intended, but that the singular includes the plural and vice versa: Apararka, e.g. at p. 730 of the edition already referred to, says that the plural (vibhajatam) in Yajnavalkya II. 123 was (avivakshita). The reason is that the Smritis must be taken as they are while the commentators have to make the texts applicable to all manner of changed conditions. That principle however cannot apply to the comments of the author of the Vivada Chintamani, who cannot be lightly assumed to have used a plural where a singular would have been quite sufficient. 339. Other reasons for regarding the compound as a dvandva instead of a karmadharaya have already been given and no reason has been shown to us why the yathasankhya principle of interpretation should not apply in the context. The plural ending of the compound is, thus, another reason for holding that the compound is a dvandva, and not a karmadharaya, and that the comment means that what is necessary to the gift of a son, a wife and the sarvasva is the consent, respectively, of the son, the wife and the like, and the anvaya. If the adi after the dare be really a mispri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bombay edition gives Yajnavalkya II. 175-(Gharpure pp. 311 to 318), but this verse is not given in the Calcutta edition. We next have a verse of Katyayana the correct reading of which is in dispute. The reading in the Calcutta edition may be closely rendered as follows: Except however (1) the whole estate and the dwelling house, what remains after the maintenance of the family - the wealth which is (self-acquired/one's own) may be given; that may not be given which is other than this. Then comes the comment: Even (out of) what is one's own, that, which is in excess (i.e., of the maintenance of the family) may be given. In giving what is not in excess, (one incurs) sin; but as regards that which is in excess, (one obtains) merit. Here, as (the text is) that donor's religious merit will otherwise be... (2) (scil. When that is given away which is not in excess of the maintenance of the family), it is not only that there is no acquisition of merit on the ground the that is not done which is ordained, but sin is) also (incurred) for doing that which is forbidden. Nevertheless the gift does take effect, as there is sufficient reason seen (for it, viz., i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) 'tu' in the original. (4) 'madhyaga' in the original. (5) Rendered by Dr. Buhler, as 'finding' or 'friendly donation' and 'lending at interest 'respectively. The important point in this comment is Dayo' nvayagatam, regarding the interpretation of which the parties are not agreed as shown by the alternative renderings given above according to the appellant and the respondent respectively. Vachaspati Misra's next sentence in the Calcutta edition is: (All) this (is) by way of illustration. (The gist is) that whatever becomes one's own in any manner whatsoever, (if) not owned in common with, others, (may be given) simply at one's own pleasure, but (if) owned in common with others, may be given when consented to by them. Property inherited from an ancestor, (1) though immovable, must (in the above reference be) undivided. The comment continues: For it is said: When however a marriage gift, or inherited property, (2) or what has been obtained by valour, is given with the assent of the wife, kinsmen, or supreme ruler, the gift acquires validity-(Dr. Jolly's translation of Brihaspati XV. 6 at pp. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the aggregate to several ownership. 347. In I. 2. 6 Vijnanesvara, in referring; to the unequal distribution authorized by Yajnavalkya II. 114, uses the word dravya for the term property in Colebrooke's rendering this unequal distribution supposes property by himself acquired. Yajnavalkya II. 118 the word dravya is used for the word estate in Colebrooke's rendering (I, 4. 1) whatever else is required by a coparcener himself, without detriment to the father's estate... ; and in the next verse the hereditary property of the translation is kramadabhyagatam dravyam. The Mitakshara comment on Yajnavalkya's suretyship verse, which has been quoted already, speaks of dravya-vibhaga irrespective of whether the property is moveable or otherwise. The word is similarly used in the opening verse in the present Chapter on gifts. 348. It is not necessary to labour the point any further; to restrict the word to moveable property is to disregard well-known passages from the Mitakshara and treat with indifference the logic of the verse. It is also impossible for similar reasons to attach much importance to the appellant's contention that svaka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Vachaspati Misra to mean self-acquired, and there is therefore no reason why the third quarter of the verse should not be rendered in the way contended for by the respondent- the wealth which is one's own. 351. Another point that has been disputed in connexion with this verse is whether it is correctly read with sarvasva as a member of a compound ending with variant or varjjam, (meaning, except), or as a noun in the nominative case, in the form sarvasvam, so as to be the subject of the sentence. The Calcutta edition gives the former reading, and this is also found in the Smriti Chandrika. The Bombay edition and the Vivada Ratnakara give the other reading, which is also found at p. 149 of the Vivadarna-vasetu, p. 144 of Hemadiri's ChaturvargaChintamani and p. 255 of the Parasaramadhava in the Bibliotheca Indica Series. If we take the reading of the Calcutta edition of the Vivada Chintamani, a man may give away whatever is his own with three exceptions: (1) the entire property (2) the house and (3) whatever is necessary for the maintenance of the family, though the last item is not expressed in the form of an exception like the other two which are governed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, does not expressly say that he agrees in Smritisara view referred to. The Smritisara has not been produced by either party, and it is not easy even to say with any degree of certainty how much of the comment is intended to give the Smritisara view and how much the view of Vachaspati Misra himself. At the same time, there is nothing in the passage as printed in the Calcutta edition (or in the Bombay edition either) to indicate that Vachaspati Misra was here giving expression to a view in which he did not himself concur. It will be seen later, when we come to Brihaspati, XV. 7 or XXV. 93, that he apparently adopted the factum valet view in the present comment for himself: the gift does take effect and cannot be resumed 355. The words, moreover, that intervene between the mention of the Smritisara and that of Brihaspati can only be taken as Vachaspati Misra's own comment: As to consent, that is necessary only in the case of what is joint and not what is not joint. This passage will have to be referred to again when we deal with the quotation dampatyor madhyagam dhanam from the SraddhaViveka, because here too we have the word madhyaga which has been translated as join ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en thus rendered above: Even with respect to inherited property, which is undivided, whether immovable or moveable, the consent of other sharers is necessary for a gift to others: this on Brihaspati's verse about the gift of kramayata property taking effect, just after the verse which denies the bestowal of the whole. Mr. Jha has contended that the word bhagi, sharer, in this sentence will apply to the wife because of Vachaspati Misra's concluding sentence in the comment on Yajnavalkya II. 52. We are not prepared to accept this contention for the reasons already indicated; whether in the husband's self-acquisitions or in the ancestral property, the wife is only to receive a share in conditions which cannot be brought about by her, and as the discussion about the consent of the anvaya to the gift of sarvasva does not show that Vachaspati Misra considered her consent necessary, we cannot suppose that he used the word bhagi in the present context to include her among other coparceners as ordinarily recognized. 358. The discussion of deya in the Vivada Chintamani thus seems to show that the sole owner of an estate is entitled to alienate it, provided he d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is difficult to follow them without the context, which it is therefore necessary to set out in full. We begin with a verse (on p. 34) which as remarked already, is dealt with by Vachaspati Misra in his sections on Deya and Reunion, and which can be identified with Brihaspati (XV. 7 or) XXV. 93 and has been translated by Dr. Jolly (p. 384, Sacred Books of the East. Vol. XXXIII) as follows: Whether kinsmen are united or separate, they are all alike as regards immovable property as no one of them has power in any case to give, mortgage or sell it. The comment on this is: Some (say) on the authority of the words actually found (lit. heard) here that one (alone) has no power of sale and the like regarding even divided immovables. That is not so, because it is opposed to many texts. But where though (kinsmen are) divided, there has been no demarcation of their shares, (i.e., the immovable property) still remains common (1), and since it is thus common (2) (to many), one (alone) has no power. As regards all divided property without exception (1) (a transaction) takes effect which is carried out by (an) independent (owner) only; otherwise the precept (in the texts) woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ari Dutta's translation at p. 509 of the evidence is otherwise there is danger of a contrary order. 363. The appellant's translators endeavoured to make out that the sentence dealt with the gift of sarvasva only, and that the absence of consent of the son and wife and the existence of anvaya were both of them conditions which made the text prohibiting the gift of sarvasva applicable. They even went the length of maintaining that the words chanvaye sati were an anticipatory quotation from Narada. It is true that two verses from Narada containing these words are actually given a few lines afterwards, but quotations consisting merely of a conjunction cha and a locative absolute anvaye sati and conveying no complete idea by themselves and not marked by the usual iti are not often found. What is more, Brihaspati mentions among his eight adeyas the son and the wife as well as the sarvasva, and neither Brihaspati nor Narada--between whose verses the comment occurs--says any thing about the absence of consent of the son and wife in regard to the gift of the sarvasva or even of the son and wife as is commonly read into Katyayana's verses. The author's comments about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also relied on a maxim quoted in the Sraddha Viveka Sulapani to which a passing reference has been made before now. This quotation is dampatyor madhyagam dhanam. Colebrooke gives it in Book V, Ch. 8, Section 1, text 415, rendering it by wealth is common to the married pair. In a foot-note he says: I can nowhere find the text cited at full length: this much of it has been frequently quoted; but the author of it (Datta) is here named for the first time, and he does not rank among legislators. 366. The context in which this quotation occurs in the Sraddha Viveka was put to the respondent's translators and deals with the question of whether a deceased wife is entitled to pindas independently of her husband or receives them through him. A quotation from such a context would prima facie be but a poor basis for a new construction of the Vivada Chintamani. It has not been shown that Vachaspati Misra himself has anywhere adopted the quotation. On the contrary, appellant has laid stress--as we have already said--on the omission of Vachaspati Misra, when commenting on Yajnavalkya II, 52 to take notice of Apastamba's 19th Sutra which makes a wife an associate of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions in any manner that he may choose and without any interference from his wife, provided only that where he chooses to give equal shares to the sons, he must also give equal shares to the wives unless they have already received stridhan from him or from their father-in-law. This also necessarily implies that the wife is not really a co-owner of the husband's self-acquisitions, at any rate in the sense of being entitled to prevent him from giving them away. The maxim dampatyor madhyagam dhanam, if it be assumed to be applicable to such property according to the view of Vachaspati Misra, will therefore mean no more than that as long as such property is actually undivided, she is entitled to enjoy it in common with the husband. As regards ancestral property, we have already said that we have not been referred to any Mithila authority who deals with the position expressly. That the husband in Mithila may hold property independently of the wife, and thus irrespective of the maxim dampatyor madhyagam dhanam, will also appear clear from such texts as Manu IX. 199 which has been dealt with in the Ratnakara VIII. 2. This verse of Manu's, which has been already referred to, lays ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quoted at the beginning of the section: After the death of the father and the mother, the brothers, being assembled, may equally divide among themselves the paternal estate.... 371. On this Vachaspati Misra considers inter alia an 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is actually regarded as a coparcener of her husband and co-owner of property with him, on the dictum dampatyor madhyagam dhanam, which is not even shown to have been adopted in any of the 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 impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intended by Vachaspati Misra, his dictum could not prevail over the doctrine 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne's 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the culpability of the receipt also--see also Colebrooke's Mitakshara I. 1. 10. The Mitakshara, after dealing with Yajnavalkya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely 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, dealing with the texts bearing on the alienation of immovable property acquired by a Mitakshara father, observed: It appears to them that the subject is one of those in which from the earliest times there have been t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 is the usage of Mithila. 393. The husband can adopt in this form without any religious ceremonies and independently of the wife, and vice versa; land the Kritrima son adopted by the husband takes his property as heir to the exclusion of the wife. A son adopted in the duttaka for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the maxim from the Sraddha Viveka regarding property being common to the married pair has not been shown to have been adopted by any of the leading Mithila authorities on Vyavahara, and that the Vivada Chintamani, like the Mitakshara, definitely lays down that in an undivided family a widow takes nothing by survivorship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sailable 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 suit for the estate on the ground of fraud, and in all probability equally little chance of success on the basis of the Mithila law as urged for her. It is contended on behalf of the plaintiff that the maintenance, house rent and conveyance which the compromise gave her was what she would have got in any case even if her suit, for posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved 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, and that on the other side the answer or defence or counter-claim is also bona fide and truly made. 403. In the case before us, whatever may be said about the claim put forward by the plaintiff on the basis of fraud in connexion with the probate proceedings and on the basis of the Mithila law, or in respect of the jewellery and gardens as being her personal properties, there is no doubt that the defendants, who had obtained a probate of the will of Ugra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim. 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 doubts and disputes have arisen with regard to the rights of different members of the same family . . . . and fair compromises have been entered into to preserve the harmony and affection, or to save the honour of the family, those arrangements have been sustained by this Court, albeit, perhaps, resting upon grounds which would not have been considered satisfactory if the transaction had occurred between mere strangers. 406. In Williams v. Williams (1867) 2 Ch A 294 it has been held that a family arrangement may be such as the Court will uphold, although t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... un 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 means of knowledge, of each of them with respect to the mode in which, and the circumstances under which, his claim arises, stand upon an equal footing, and there is absence of fraud or misrepresentation, the transaction is binding, although the conclusion at which the parties may have arrived is not that which a Court of Justice would have arrived at had its decision been sought. The real consideration which each party receives under a compromise being, not the sacrifice of the right, but the settlement of the dispute, and the abandonment of the claim. It is no objection to the validity of the transaction that the right was really in one of the parties only, and that the others has no right whatever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 entirely unjustified. 411. We have already discussed the financial position of the estate and have shown that it would have prevented any Court from allowing her maintenance at that rate from the death of her husband. For the first 14 or 15 years she would have got much less than this. Possibly the Court would have ordered a somewhat higher maintenance to take effect after the debt was discharged, but one cannot be sure of this. If under the circumstances the compromise was for maintenance at an uniform rate of ₹ 1,000 per month on the condition that the lady surrendered her claim to the estate, jewellery, gardens, etc., the compromise cannot be said to be without consideration, and cannot be ignored on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfluence 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 legal objections raised on behalf of the appellant against the lawful character of the compromise and against its being recorded. These are: (1) That the com promise cannot be recorded as no decree can be passed on its basis under Section 42, Specific Relief Act. (2) That a compromise not specifically enforceable cannot be recorded and that the compromise in question is not so enforceable. (3) That the contract to compromise stands rescinded on account of the defendants not having performed their part of the obligations arising under it. (4) That all the defendants not having joined in the compromise, it is unfit to be recorded. (5) That the compromise is unlawful, as it involves a transfer to the defendant of the shebaitship right of the lady and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cree 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 the decretal amount by instalments and properties mentioned in the schedule of the decree stood charged for the payment of the instalments, the properties could not be sold in execution of the decree, but that a separate suit was necessary under Section 67, T.P. Act. The second case laid down that where a decree declared the amount payable to the plaintiff in respect of future maintenance and made it a charge upon the estate of the testator, such a charge was properly enforceable by suit and could not be given effect to in execution. Reliance has also been placed upon the case of Gobinda Chandra Pal v. Dwarka Nath Pal (1908) 35 Cal 837 where a suit was brought on the basis of a compromise decree which created a charge upon immovable property. The suit was decreed, and the High Court on appeal upheld the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 necessary for enforcing it and that it can be enforced by putting the decree into execution. Apart from this the case in Matangini v. Chooneymoney Dassee (1895) 22 Cal 903 was based upon the consideration that there was a deed creating the charge as directed by the first decree, and that deed was the basis of the second suit. That such a decree can be enforced in execution has been clearly explained by Sir Dinshaw Mulla in his commentary on the Civil Procedure Code, Edn. 9, p. 938, under Order 34, Rule 14, where the learned commentator has indicated that in order to come within the prohibition of that rule the mortgage or charge for which a suit is necessary should be prior to the decree. 422. The plain meaning of Order 34, Rule 14 and authority alike leave no doubt that so far as the decree for the past maintenance is concerned, it can be executed and that no separate suit will be necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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, except that there is no mention of a charge. Here is an admission of liabilities and a promise of the defendants to discharge them, and the parties have asked the Court to pass a decree on the basis of them. The plaintiff in her suit asked the Court, in case her claim to the estate failed, to adjudicate the amount of maintenance and to order the defendant to pay it. The plaintiff and defendants have agreed that the amount shall be ₹ 1,000 per month. It cannot be seriously maintained and nothing has bean urged before us to show, that had the case been decided on contest and had the Court fixed the amount of maintenance payable to the plaintiff, the Court would not have been competent to order the defendants to pay the amount, or that such an order would not have been enforceable. What difference can it make if instead of the Court determining the amount of maintenance to be paid to the plaintiff, the amount is settled by the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jee 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 precise question now raised by the appellant was not directly decided there. Assuming for a moment that such a decree cannot be passed under the law on the ground that the cause of action for future maintenance has not yet arisen, as the learned Judges who referred the case to the Full Bench in 19 Calcutta were inclined to hold, the plaintiff can again have no grievance whatsoever: for on such an assumption the only decree possible would be a declaratory one and Section 42, Specific Relief Act could thus have no application. It was however contended that though such a decree can be passed under the law, it cannot be passed in the present case, as it has not been provided for in the compromise and it will be going beyond the terms of the compromise to pass an executable decree. 429. We however do not think so. In our opinion, as we have already indicated an order passed under Order 23, Rule 3 to a party to perform an obligation, which he has himself undertaken, is not an interference with the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought a declaration of right regarding her future maintenance and for fixing its amount, without asking for an executable decree for it. We have however shown that an executable decree for future maintenance can be passed on the basis of the compromise before us, and in our opinion the learned Subordinate Judge was right in passing such a decree, and we propose, in disposing of the revisional application, to see that the decree is made clear and formal. 432. The contention on behalf of the appellant has been that the defendant's application to record the compromise was on the same footing as if it were a suit for specific performance of a contract, that a proceeding under Order 23, Rule 3 is a speedy remedy alternative to such a suit, that the terms of the compromise, at any rate several of them, are not specifically enforceable and two of them not enforceable at all, and that therefore the compromise cannot be recorded as an order for recording a compromise means the passing of a decree, which in effect would be a decree for the specific performance of a contract. It is urged that the obligation of the defendant to provide a house and a conveyance for the plaintiff can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tirely repudiate the technical distinction between what is called an application for specific performance and an order to be made that such and such thing should be done. The Court is asked for its assistance when this order is asked to be made to enforce that the trial of the cause should not go on. As a matter of fact, prior to the passing of the Civil Procedure Code of 1908 and when the corresponding section of the old Civil Procedure Code, viz., Section 375 was in force, it was held in a Calcutta case that when a compromise was disputed the question could not be inquired into in the suit itself, and that the remedy of the party, who wanted to stand by it was to sue the repudiating party for specific performance of the contract: see Hara Sundari Debi v. Dukhinessur (1885) 11 Cal 250 but this view was overruled by the Full Bench in Brojodarlabh Sinha v. Ramanath Ghosh (1897) 24 Cal 908 . In the case of Ruttonsey Lalji v. Pooribai (1883) 7 Bom 304 , Scott, J., holding that a disputed compromise could be inquired into the suit itself, observed: I think the legislature introduced this rule to meet the case where parties having agreed together, subsequently fell out. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the contract to compromise a pending Suit and specific performance of the undertakings to be carried out by one party or the other after the decree in that suit. 438. Specific performance of the contract to compromise the suit itself merely means compelling the party who backs out of the compromise to have the pending suit disposed of by a decree on the terms already agreed upon by the parties, but it does not mean the performance of obligations arising under this decree. This will be the nature of the suit if such a suit be still maintainable in spite of the fact the law has provided a special procedure in the suit itself in order to avoid multiplicity of suits. In this case the defendants have applied for the compromise to be recorded. They are in the position of a plaintiff, while the plaintiff is in the position of the defendant. 439. The prayer of the defendants would, if the proceeding were framed in the terms of a suit, be that the plaintiff be specifically compelled (in the proceeding itself) to have the original suit disposed of on the terms agreed upon by the parties, while the defendants are ready and willing to submit to the decree which he agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court will even then, in our opinion, have to record the compromise--provided there is nothing unlawful in it--and to pass a decree. 442. It is not the business of the Court to speculate on the difficulties that may arise at the time of execution. It will be for the executing Court to, devise means and give suitable remedies in case the compromise decree is disobeyed. The Code of Civil Procedure contemplates the passing of a decree for specific performance of a contract which cannot be specifically enforced. Such a decree may not be passed on contest, but in our opinion can be passed with consent; and if the compromise be lawful, we do not see how the Court can refuse to record it and pass in accordance with it a decree which may contain terms that are not specifically enforceable. The difficulty of the execution in such cases has been provided for in the Code of Civil Procedure. Order 21, Rule 32, provides that where a party against whom a decree for specific performance of contract .... has been passed has had an opportunity of obeying the decree and has willingly failed to obey it, the decree may be enforced .... by his detention in the civil prison or by the at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided, of course, that the Court is satisfied about the factum of the compromise. The obvious difference between a decree on contest and one by consent is that while in the one the Court is debarred from passing a decree for specific performance of a contract which requires the personal skill of the defendant, such a decree must be passed if that be the way the parties agree to compromise the suit. 445. On passing an order of recording a compromise under Order 23, Rule 3 the Court is to pass a decree not for the specific performance of the original contract--the contract to repair the painting--nor of the future undertaking to repair to the satisfaction of X, but for the specific performance of the new contract to have the suit disposed of in a particular manner--a contract which did not exist at the time of institution of the suit as was pointed out by Sanderson, C.J., in Tarubala's case (72). And this decree in the suit itself follows as a matter of course. 446. The analogy between a suit for specific performance of contract and a proceeding under Order 23, Rule 3 should not be carried too far. There is one obvious difference between them; while the Specific Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his again is, doubtless, correct, but it is difficult to see precisely what effect it should have on the construction of the section. Supposing the section is construed in the limited sense which Mr. Jardine contends for, (namely, that a compromise can only be recorded if both parties agree to its being so done), the same argument will still be not without force. For, in the case of an agreement which the parties are still willing to carry out at the time when the application is made to the Court a decree according to that agreement may be a decree for the specific performance of an agreement, which, under the general principles of the Code and the law embodied in the Specific Belief Act, is not enforceable by that mode of relief. The argument under consideration therefore applies, whichever of the two rival constructions is adopted, and cannot be treated as affording any special objection against either. Further, the tendency of the decisions in England and of the changes introduced under the Judicature Act seems as Scott, J., pointed out, to be unfavourable to this agreement. (The portions within brackets are ours.) 449. He then referred to the case of Eden v. Naish (187 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Privy Council. The specific performance of the agreement to end the suit by a decree in accordance with a compromise is obviously different from specific performance of agreed acts to be performed after such decree which the Court may or may not be in a position to supervise or enforce, but this does not prevent the passing of a decree according to the compromise. If after a compromise decree is passed, the consenting party disobeys the decree, the decree-holder has his remedy in Order 21, Rule 32 and, if in spite of his imprisonment in the civil prison or attachment of his property or both, the judgment-debtor still continues to disobey, the Court may order his property to be sold and award to the decree-holder such compensation as it thinks fit and shall pay the balance to the judgment-debtor on his application. 451. For breach of a contract not specifically enforceable the aggrieved party is entitled not to specific performance but to damages. Similarly, the Civil Procedure Code provides a remedy in case a decree for specific performance of a contract is passed, but cannot be specifically enforced; damages may be in such a case be granted to the aggrieved party even a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Act, Sections 5 and 24 the Court will also enforce by staying proceedings a compromise for putting an end to litigation: (White Tudor, Edn. 8, p. 253). As we have said, when a Court records a compromise it enforces not the terms agreed upon by the parties to be carried out in future, but only the agreement to have the suit disposed of. And thirdly, the plaintiff's prayer in that suit was refused in exercise of a discretion which is left to the Court in a suit for specific performance of contract, while the recording of a compromise is mandatory under our Code, as we have already pointed out. Apart from this the obligation of the plaintiff in that case could not at all be specifically enforced, for obvious reasons This is not the case here. 454. In this case, excepting two terms namely about Suraj Mohan being obedient to the lady and to look after her and about the expenditure of interest on the arrears of maintenance on scholarships and religious works with the consultation of defendant 2, there is no other term in the compromise which cannot be lawfully enforced. The future maintenance can be definitely secured to her even by independent means apart from its being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stered by the parties and partition lots would be drawn up by 31st December 1921. 457. Then there were certain terms to be embodied in the deed of sale. Lord Blanesburgh in delivering the judgment of their Lordships in that case observed as follows: Before their Lordships the question mainly argued was that the compromise was not a complete and final settlement of the suit so far as the appellant was concerned: that its terms were not of a character of which specific performance could be granted, and, less strongly, that it was not, ab initio, binding upon the son, the respondent Kunwar Bharat. Their Lordships have been unable to accept any of these contentions. They are in full accord with the learned Judges of this High Court as to the authority of Ghanshiam to bind Kunwar Bharat to compromise in respect of his interest in the property, and in their judgment the terms agreed to are such as to be susceptible in every detail to an effective order in the nature of specific performance against any party to the compromise who seeks to escape from his obligations thereunder. 458. This case is no authority for the proposition that a compromise cannot be recorded unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would do nothing without her permission, etc. The plaintiff sued her husband to recover from him all his earnings amounting to ₹ 565. The trial Court decreed the suit. The lower appellate Court dismissed it. 461. On second appeal the High Court held that although some part of the agreement might be illegal as being contrary to public policy and therefore void, yet that part which was legal could be enforced. The Court treated the suit as one to enforce that part only of the contract which was legal. Couch, C.J., said that the section of the Contract Act applicable to the case was 57, The above considerations equally apply to the conditions about the expenditure of the interest of the arrears of maintenance on scholarships and religious works. The condition is to our mind a recommendation to the lady which she may or may not accept. Mr. P.R. Das, who appeared for the Savis and Mr. Ghose who appeared for defendant 2, expressly stated before us that the defendants do not want to enforce this. 462. Fry in his standard book on Specific Performance, Article 346, says that the uncertainty of description of the subject-matter may be got over by the election of one part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejudice to her case to receive the future and past maintenance allowance and made several attempts to obtain payment. These attempts were resisted by the defendant who maintained that as long as the plaintiff was fighting the case, she was not entitled to get anything under the terms of the compromise. This attitude of the defendant, it is urged, amounts to his refusal to perform his part of the contract, and therefore the contract stands rescinded. In short, the argument is that in spite of the plaintiff's repudiation of the compromise, the defendant, in order to be entitled to specific performance of the compromise, ought to have carried out what he had promised, or at least made an unconditional offer to do so. The offer, if any, was conditional on the plaintiff's not opposing the recording of the compromise, and therefore does not save the defendant. 465. This argument again suffers from the same fallacy as the one which we have just dealt with on the last topic, in that it confuses the specific performance of the contract to compromise the suit with the specific performance of the terms of the compromise itself which were to be performed after the disposal of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and January, 1925, for which the plaintiff granted him a receipt. After that, the defendant paid to the plaintiff a sum of ₹ 1,500 at Allahabad, which, according to her, consisted of ₹ 500 for her expenses and another ₹ 1,000 for the barkhi-sradh of her husband. We have however held that this story of the plaintiff is untrue and that the entire amount of ₹ 1,500 was paid to her towards her maintenance, as deposed to by Suraj Mohon. This shows that her maintenance up to the middle of March was paid well in time. We have also held that the defendant spent a sum of ₹ 3,000 odd on the plaintiff's account which must be set off against her maintenance allowance. 468. Therefore, on 7th April 1925, when the plaintiff filed her application under Section 151, to set aside the compromise decree, nothing was due to her on account of maintenance; in fact, her maintenance was overpaid and the instalments of the past maintenance as fixed by the compromise had not till then fallen due, nor had any interest become payable by that time. After the filing of the application under Section 151, the defendant stopped payment of the maintenance. The plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of this the defendant consented to let a decree be passed against him in terms of the compromise. The defendant was always ready and willing to perform this promise, which was the consideration for the plaintiff's promise. Section 38, Contract Act, which has been rolled upon by the appellant, is of no help to her, but is really in favour of the defendant. It says that: where a promisor has made an offer of performance to the promisee find the offer has not been accepted, the promisor is not responsible for non-performance, nor does he thereby lose his rights under the contract. Every such offer must fulfil the following conditions: (1) it must be unconditional; (2) it must be made at a proper time and place.... 471. In this case the promisor was the defendant. He promised to the plaintiff to submit to a decree, if, in her turn, she let her claims, other than that for maintenance, be dismissed. There was always an offer by the defendant to perform this promise, and his right under the contract subsists. The contract was completed on 25th November 1924. On the next date, he paid the court-fees on behalf of the plaintiff (the plaintiff's suit having been institut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose obligations. The promise of the defendant to pay the maintenance of ₹ 1,000 etc., was dependent upon the dismissal of the plaintiff's suit in respect of all her claims other than those for maintenance, etc., as provided in the compromise and on the passing of a decree for maintenance, etc., against him. The plaintiff being the promisee could not claim the performance of the obligations of the defendant till she performed her part of the contract by abandoning her other claims and obtaining a decree against the defendant. Therefore the promisor of the second part, viz., the plaintiff, having failed to perform her part, could not claim performance of the promise of the defendant. This section does not show that the contract would come to an end. The defaulting party certainly cannot insist upon the performance of the promise by the other party; but, nevertheless, the other party can enforce the contract against the defaulting party. 474. It is really unnecessary to refer to the cases relied upon by the appellant, as the law seems to us to be perfectly clear under the various sections of the Contract Act. Those cases lay down that when a party is in default, he c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mahalinga Pillai AIR 1915 Mad 210 . The facts of that case were rather complicated. It is enough to say that the litigation between the parties ended in a compromise under which there were various acts to be done by one party for the benefit of another. One of the acts was that the plaintiff would deposit ₹ 13,000 in Court, whereupon the defendant would get a release of certain properties in which the plaintiff was interested. On that release, again the plaintiff was to pay to the defendant a sum of ₹ 2,200. In other words, there was some act to be performed by the plaintiff, then some act to be performed by the defendant, and afterwards, there was a third act to be performed by the plaintiff viz. the payment of ₹ 2,200 to the defendant. The plaintiff failed to perform his first obligation, viz., to deposit ₹ 13,000 in Court. 477. Defendant therefore did not get the release of the plaintiff's property; but he executed the decree for the realization of the ₹ 2,200 from the plaintiff. The High Court disallowed this execution and held that to enable the defendant to succeed there must be performance by him of his part of the contract. His offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive contract, and a breach of its stipulations may be a ground for a suit for its enforcement but not for the revival of the original claim. It is obvious therefore that the plaintiff cannot go back to her original rights, and if there had been any default on the part of the defendant, as we hold there was not, the plaintiff had her remedy by executing the decree which she had obtained; and as we have said, the defendant was entirely justified in not carrying out the terms of the decree as long as the decree itself was disputed by the plaintiff. 481. In Jones v. Barkley (1781) 2 Doug 684, it was held that when something was to be performed by each of the parties at the same time, he who was ready and offered to perform his part but was discharged by the other may maintain an action against the other for not performing his part. Lord Mansfield said that the party must show that he was ready, but if the other stopped him on the ground of an intention not to perform his part, it was not necessary for the first party to go further and do a nugatory act. In In re Bayley Worthington Cohen's Contract (1909) 1 Ch 648, Parker, J., said: Default must I think, involve either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blish that the bar exists, viz., that there has been a lawful compromise. There is no question of estoppel here nor of waiver. The plaintiff has no doubt continued to receive some maintenance allowance, but that is not on the basis of the compromise and is without prejudice to either party. 484. It is contended that Naresh Mohan, Debi Prasad and Hardutti, the defendants in the suit, not having joined in the compromise, it is unlawful and cannot be recorded. No authority has been placed before us in support of this proposition. It is quite open to a plaintiff to compromise his suit with some of the defendants only, leaving the others altogether alone, or proceeding with the suit against them. For instance, if A brings a suit for money against B and C jointly it is open to the plaintiff to compromise with B only and be satisfied with a decree against him and leave C alone. In this case Naresh Mohan was joined as defendant partly because as one of the reversioners of his uncle, Ugrah Mohan, he would be entitled, if the will were to be found invalid, to succeed jointly with Suraj Mohan to the estate after the lady's death, and partly because he was a co-sharer of the Kanchan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccessfully attacked in a proper proceeding. No law insists upon a plaintiff prosecuting his suit if he chooses to abandon it. In this case the plaintiff received no consideration for abandoning her claim to the shebaitship whatever its merits might have been. What she got was a maintenance past and future and a house and a conveyance. She was under the law entitled to them. 487. There is nothing to show that in fixing the amount of maintenance the question of the shebaitship was so much as referred to by the parties. As a matter of fact the shebaitship is not specifically mentioned in the petition itself. As was pointed out by Rankin, C.J., in the case of Panchanan Banerjee v. Surendra Nath Mukerjee (24) the case of Rajah Vurmah v. Ravi Vurmah (1876) 1 Mad 235 at p. 81 is authority for the proposition that there is a difference between a sale and a transaction not tainted by the motive of private benefit to the transferor. This case of Panchanan Banerjee (24) is no authority in favour of the plaintiff. There the shebaitship was transferred to a stranger, and the lady got some benefit under the arrangement. 488. In this case there was a perfectly bona fide compromise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and we have held in the earlier part of the judgment that the compromise covered the whole suit. There was no reservation and therefore her claim in respect of the shebaitship must stand dismissed. Though the learned Subordinate Judge has not passed any decree about the shebaitship in favour of the plaintiff, his observations quoted above may lead to unnecessary trouble and litigation. In our opinion they are entirely unwarranted and erroneous and cannot be allowed to have any effect. 490. The uncertainty complained of is first of all about two terms of the compromise, namely, about Suraj Mohan being obedient to the lady and looking after her and about the spending of the interest in consultation with the defendant. We have already dealt with this point. The other uncertainties pointed out are about the provision for the house and the conveyance, as to the parties to the compromise, and as to the estate of Ugrah Mohan on which the maintenance is to be a charge and from which the maintenance is to be paid. We will take these up one by one. 491. It is contended that the house which the plaintiff is to get is not sufficiently described, nor the conveyance clearly specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court suitable or in the last resort, if the Court should find that this cannot be done, by awarding to the plaintiff suitable compensation, namely, the house rent in cash. 493. As a matter of fact, during the pendency of this appeal this Court has actually had to make such an arrangement, and to allow the plaintiff to take a house for herself and realize from the defendant rent not exceeding ₹ 200 on production of vouchers. A similar arrangement could, if necessary, be made and has in fact been made by this Court about the conveyance also. It was contended before us rather strenuously that the description of the carriage and the horse has not been given. No description was needed; all that is necessary is a carriage and a horse which can reasonably carry the lady for her bath and worship, and this can be easily gathered from the context. As regards this also there is ample power in the Court to arrange for such a conveyance, and as already indicated, this has actually been done by this Court during the pendency of the appeal. 494. The next uncertainty pointed out is about the words estate of Ugrah Mohan Thakur. It is contended that the words are indefinit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll or any of he property for the time being vested in him under Section 4. (2) The power of an executor to dispose of immovable property so vested in him subject to any restriction which may be imposed in this behalf by the will appointing him, unless probate has been granted to him and the Court which granted the probate permits him by an order in writing notwithstanding the restriction, to dispose of any immovable property specified by the order in a manner permitted by the order . . . . 498. There is nothing before us to show that the will of Ugrah Mohan Thakur placed any restriction upon the power of the executor and therefore in the absence of any restriction he was perfectly competent to compromise the suit by agreeing to the creation of a charge on the estate of the deceased for the maintenance of the lady. In fact the maintenance of the widow can always be made a charge on the estate of her husband and Mr. Savi did nothing more. But assuming that he had no such power, the transaction would be not altogether void, but only voidable. Sub-C1(4) of this very section says: A disposal of property by an executor or administrator in contravention of Sub-section (2) or S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raudulently by the opposite party at the railway station in order to obtain an admission from her hurriedly without letting her know the contents of the petition. This again is a contentious matter and has not been investigated. (The expressions within brackets are ours). (2) It seems from the summary order passed by the Subordinate Judge (Mr. N.N. Chakravarty) that he did not at all bestow his mind to the consideration of the compromise and its terms and did not realize the scope of the suit and the parties concerned in it. The compromise was not judicially disposed of, and the order passed by the Subordinate Judge lacks in judicial sanctity and the plaintiff can very well seek to avoid the order as well as the decree passed on its basis. And in the end the order was that: the case be restored to its original number and taken up from the stage at which the compromise was filed and disposed of according to law. 502. It is obvious that the petition of compromise was not finally disposed of by this Court. A compromise, if genuine and valid, bars the trial of the suit, and defendant can very well ask that the bar be first removed before the plaintiff is allowed to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment by this Court. When the record went back to the Court below, the plaintiff objected to the trial of the question of the compromise, and by his order, dated 2nd September 1926.(No.29) the learned Subordinate Judge interpreted the order of this Court to mean that the question of compromise was to be tried. His order runs thus: From the aforesaid facts and circumstances it is abundantly clear that the effect of the order of the Hon'ble High Court is to make an investigation in the first instance regarding the allegation of the lady relating to the compromise. If it is established on evidence to be adduced by the parties that really there was fraud in connexion with the said compromise, or, in other words, if it is proved to the satisfaction of the Court that the said compromise or agreement was not legal, it would not be ordered to be recorded and the suit would then be heard and tried on its merits. The plaintiff being dissatisfied with this order moved this Court. Das, J., who with Adami, J., heard and disposed of these applications (Civil Revisions Nos. 634 and 635 of 1926) remarked: It was the contention of Savitri Thakurain that the compromise decree ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red Section 49 enacts that the documents which are required to be registered under Section 17 shall not be received in evidence of any transaction affecting such property, etc., unless it has been registered. The question before us is a very narrow one, namely whether a petition of compromise asking the Court to pass a decree on certain terms comes within the purview of Section 17, Registration Act. 507. In the case of Bindesri Naik v. Ganga Saran Sahu (1897) 20 All 171 , their Lordships of the Privy Council had before them the finding of the High Court of Allahabad that judicial proceedings did not require registration under Section 17 of the then Registration Act (Act 3 of 1877). Lord Watson delivering the judgment of their Lordships observed: Although, in the view which their Lordships take the question whether those proceedings can be founded on, without their having been registered in terms of Act of 1877, does not necessarily arise in this appeal, they think it right to add that, having heard counsel fully upon the point, they are satisfied that the provisions of Section 17 of the Act do not apply to proper judicial proceedings, whether consisting of pleadings, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell, C.J., in Mansell v. The Queen (1857) 8 E1. B1. 54 at p. 73 and of James, L.J., in Ex parte Campbell (1870) 5 Ch. Ap. 703 to the effect that where a section of an Act which had received a judicial construction is re-enacted in the same words, such re-enactment must be treated as a legislative recognition of that construction. That the attention of the legislature was drawn to Section 17, Registration Act of 1908, is clear from the fact that after the decision of their Lordships of the Judicial Committee in the case of Hemanta Kumari Debi v. Midnapore Zamindari Co. AIR 1919 PC 79 , which laid down that a decree based upon a compromise even if it went beyond the scope of the suit did not require registration, they intervened and amended Section 17(2), Clause (vi). That clause at first did not refer to compromise decrees at all. It ran thus: Any decree or order of a Court and any award. This clause is one of the exceptions to Section 17. Since the decision in Hemanta Kumari's case AIR 1919 PC 79 it was amended in 1929 and runs thus: Any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eadings filed in the course of judicial proceedings do not require registration. But apart from this, Section 17, Registration Act, itself specifically provides that its provisions do not apply to a document which does not itself create, declare, assign, limit or extinguish any right, title or interest, etc., etc., but merely creates a right, to obtain another document which will when executed create, declare, assign, limit or extinguish any such right, title or interest. 514. The petition of compromise before us comes clearly within this exception. The petition does not by itself create a right of getting maintenance, etc., or create a charge by itself. No right in favour of the plaintiff is created by it, nor does it create a right in favour of the defendant to extinguish the claim of the plaintiff to the estate, gardens and jewellery. The petition enables the parties to go to Court and have a right in favour 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be useful if we give a summary of our finding which are in general agreement with the learned Subordinate Judge. We have found that the terms of the compromise, mentioned in the petition Ex. A, have been proved to be those which were agreed to between the parties. The rival terms, alleged by the plaintiff, have not been proved to be the terms settled between them, and Suraj Mohan could not have agreed to them. No fraud was practised upon the plaintiff and she was not imposed upon in any way. Every item of the compromise was settled by her and she understood them all fully, and willingly compromised the suit on these terms. Bodh Krishna Jha, a first cousin of the plaintiff, came to Suraj Mohan in December 1923, and suggested a compromise on the basis of the lady (getting a maintenance. 518. Suraj Mohan expressed his inability to do anything in the matter till he became a major. He 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 J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ched Monghyr on the same day. Bodh Krishna Jha and Ram Bahadur Singh actively took part in the preparations of the draft of the compromise, and they were not witnesses of truth when they depose that they were watching the events from a distance. 521. Bodh Krishna Jha actually put up in the house where the lady was staying. The lady's version that Bodh Krishna Jha only came to take ₹ 20,000 which was intended to be paid to Ram Krishna Jha and that he took no part in the compromise is false. A draft was prepared by Bodh Krishna Jha and Ram Bahadur Singh in consultation with Maulvi Sayeeduddin, and possibly of Babu Hito Rai, another pleader of the plaintiff. At that stage the lady wanted some additional terms, viz., that the arrears of maintenance should be paid to her by instalments, that she should get a house at a place of pilgrimage, and a conveyance. 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, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, and she fully understood them and entered into them with all the knowledge of their effects. She is literate, knows Hindi very well, and can write it fluently. She knows a little English as well. She is fully familiar with the Court language in which the petition was written. Her story that she had forgotten Hindi and that she signed the petition on trust and on letter for letter dictation from Suraj Mohan is false. Her signatures on the various Vakalatnamas and her verifications on the plaint and petitions falsify that story of literary incapacity. She received advice from Maulvi Sayeed-ud-din, and the advice of Mr. Ram Krishna Jha, Bodh Krishna Jha and Ram Bahadur Singh was available to her and we believe that she did receive advice from them all, and it was with all this advice that she entered into the compromise. 525. While the defendant has 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived for abandoning her claims to the estate, jewellery and gardens was ample under the circumstances of the case. We have also held that the compromise is perfectly lawful, that it will not contravene Section 42, Specific Relief Act, to pass a decree in accordance with it, and that an executable decree can be passed in the suit. A contract to compromise a suit is specifically enforceable in the suit itself by a proceeding under C. 23, Rule 3, and if the Court finds that a suit has been compromised by a lawful agreement, it is bound to specifically enforce that agreement by recording the compromise and passing a decree on the basis of it. The provisions of Order 23, Rule 3, of the Code are mandatory. The contract of compromise was not rescinded on account of any default of the defendant. Defendant has all along been ready and willing to perform 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed in appeals from original decrees, viz., ₹ 5,000. Out of this amount, ₹ 250 will go the respondents who are the heirs of Mr. Savi, deceased, and have also entered appearance in this case, and the rest viz., ₹ 4,750, will go to the respondent Suraj Mohan. The other respondents must bear their own costs. 532. We now take up the cross-objection of the respondent Suraj Mohan. It was directed against two parts of the judgment of the learned Subordinate Judge, one in connexion with his remarks about the debuttar property, which we have already dealt with. The observations of the learned Subordinate Judge are wrong and should be treated as such. The other objection is directed against his order not allowing costs to the respondents. The learned Subordinate Judge has given no reason for not awarding costs against 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 westernise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thholding from the witness-box important witnesses like Durga Nath Jha, Maulvi Sayeed-ud-din, and last but not least Mr. Ram Krishna Jha. By these means she unnecessarily prolonged the case. Charges of fraud against various persons were recklessly made, and in the case of Babu Hito Rai easily withdrawn. These being our findings, we feel that the costs of the Court below cannot properly be withheld from the respondent. The hearing of this matter after the case was sent back by this Court on 8th June 1926, was protracted. There were 27 contested hearings in the interlocutory stage and twenty hearings in the main hearing of the case. 537. The maximum fee allowable in miscellaneous matters in the lower Courts is ordinarily ₹ 150 only. This amount will be absurdly insufficient in this case. Discretion 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent decree to come within the prohibition of Section 96(3) of the Code it is not necessary that the consent should continue till the passing of the decree. 540. This also appears from a recent decision of their Lordships of the Privy Council in an appeal from a decision of the Judicial Commissioner of the Central Provinces in Zahir-ul-Said v. Lachhmi Narayan. When we refused to grant leave to the plaintiff to appeal as a pauper, the plaintiff's advocate intimated to us that his client had no intention of paying the court-fee and pressing the appeal. We accordingly dismissed it on that very day, i.e., 22nd August 1932. There being no intention of laying before us a properly stamped appeal, the appeal was bound to be dismissed or rejected on that ground alone and there 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 appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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