9911796707
TMI Blog1922 (12) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... e would appear to be a person of some intelligence. The Trial Judge found on the evidence before him that this compromise was not made and entered into with the knowledge and consent of the appellant. The Appellate Tribunal found on the evidence the affirmative proposition that it was so made, though that proposition was denied by the appellant and not proved directly by any document or by any witness. Their Hardships are not, for the reasons to be stated hereafter, able to take the view of the evidence upon this point which commended itself to the Appellate Court. They think this latter view was erroneous and incline to think that this was due to the fact that the two learned Judges, Richardson and Shamsul Huda, dealt with' the case without keeping sufficiently before their minds that an affirmative proposition is not established by showing that the evidence of witnesses who depose to a contradictory negative proposition is not reliable. The proposition that the appellant consented to the compromise entered into is an affirmative proposition. She and one of her brothers practically deny that she ever consented to it. No witness gives direct and positive evidence that she did c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power or authority to compromise the suit he is thus retained to argue. The appeal came on in the High Court before Fletcher and Richardson, JJ., on the 6th February, 1917. One Babu Haradhan Chatterjee appeared as Vakil for the respondents, and the appellant appears to have been represented, in addition to Vakil Probodh Kumar Das, by a well-known Barrister, Mr. B Chakravarti. After the hearing had proceeded for some time the learned Judges suggested that the appeal might well be compromised. The appellant's Vakil at this juncture desired to consult her Counsel, Mr. Chakravarti, but that gentleman's attendance could not be procured, apparently because he was engaged in another Court. The Vakil then asked for time to consider the suggestion made, and in compliance with that request the terms of the compromise were embodied in the following document written in English, which was on the 7th February 1917 signed by the Vakils of both parties and duly filed in Court. It ran thus: It may be ordered by consent that defendant No. 1, Amullyadhan Kundu, do pay to the plaintiff, Saratkumari Dasi, ₹ 13,500 (thirteen thousand and five hundred only) within 22nd February 1917. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 1917, she states in her evidence that she first heard of the compromise of her suit. In her evidence in the present suit she gives the following account of the way in which she came to know of it. She says: My brother Satish not having come to my house for 15 or 16 days I sent for him through my son Srish. He came to see me on the 10 Falgun, 1323 (i.e., the 22nd February 1917). I having enquired of him about the case, he said that the case had been compromised. On hearing that news I had a quarrel with my brother. After that I filed through my son a petition to the High Court for setting aside the compromise. She adds, since the quarrel with my brother he did not come to my house. I would suffer loss if I made the compromise for ₹ 13,500, because ₹ 17,000 or ₹ 18,000 have been spent by me on account of the purchase of the land and litigation expenses. 6. On the 28th March 1917, one month and six days after she had, as she swears, first heard of the compromise, she took the proceedings indicated in the foregoing passage of her evidence. She had an application made to the High Court to a review of the proceedings in the suit in which the compromise had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brothers went to Saratkumari to take instructions from her about the compromise. According to Probodh Babu, Satish saw him in the evening and told him his sister would like to get a little more money, that, accordingly, the next day he was able to induce the learned Vakil on the other side to raise his offer to ₹ 13,500. Admittedly, both Satish and Saila were present in Court and I have no doubt they consented to the compromise on behalf of their sister. 7. This line of reasoning is directed to show that Satish and Saila sought for and obtained from their sister on the 6th February authority to consent to the compromise after they had duly informed her of the suggestion that had been made, while Mr. Justice Richardson held, to use his own words, that Satish was the accredited agent of his sister throughout (which their Lordships presume means from the first) and that tire compromise of the 7th of February was entered into by him on her behalf and with her consent. 8. The very fact that time was given to consider the compromise suggested by the Court is the best proof that Satish was not given from the first and not taken to have been so given such dominion and contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between brother and sister, but an altercation, that she said to him, Why did you do this without any consent? Their Lordships find nothing in any part of her evidence to sustain the suggestion of the second learned Judge that this lady got sorry for having consented to the compromise, changed her mind and came forward to repudiate it falsely. 11. Satish, when examined, proved that he was a trader, accustomed to look after his sister's case upon appeal, and then alleged that the compromise was made without reference to her; that on the morning of the 6th of February Dr. Mitter commenced his argument about noon, that about 2-30 or 3 P.M. Probodh Babu (the appellant's Vakil) spoke to him in the verandah of the Court, saying that the Judges had suggested that the case should be amicably settled, that he was not agreeable to this, and then this Vakil asked him to come to Ins, the Vakil's, residence at night when he would speak about the matter. The Court was adjourned, but he says he does not know whether that was before or after the conversation. He says that lie did not communicate (i.e. about the proposal) with his sister, that he went to the Vakil's residence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to sign the document. Owing to the secluded life parda-nashin ladies live, and the consequent inexperience in the conduct of business, legal or other, the law throws its protection around them. 12. In the case of Tacoordeen Tewarry v. Nawab Syed Ali Hossein Khan 1 I. A. 192 : 21 W.R. 340 : 13 B.L.R. 427 : 3 Sar. P.C.J. 368 (P.C.) Sir Montague Smith stated the law upon the point thus. According to the principles which have always guided the Courts in dealing with sales or gifts made by parda-nashin ladies the strongest and most satisfactory proof ought to be given by the person, who claims under a sale or gift from them, that the transaction was a real and bona fide one and was fully understood by the lady whose property is dealt with. In Shambati Koeri v. Jago Bibi 29 I.A. 127 at p. 131 : 29 C. 749 : 6 C.W.N. 682 : 4 Bom. L.R. 444 : 8 Sar : P.C.J. 304 (P.C.) Sir Andrew Scoble said: It is a well-known rule of this Committee that in the case of deeds and powers executed by parda-nashin ladies it is requisite that those who rely upon them should satisfy the Court that they have been explained to and understood by those who executed them. And in Sunitabala Debi v. Dhara Sundari De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e suit, and asked Dr. Mitter what the terms will be. Dr. Mitter suggested that we were agreeable to pay the purchase-money with compound interest and that was the suggestion asked by Mr. Justice Fletcher, whether that would be agreeable to the other side. Probodh Babu said, 'I cannot say without asking my clients.' Both the brothers Satish and Saila were standing behind him and they held a consultation amongst themselves. After that they said, 'we cannot say anything to that, we shall speak about this matter to-morrow; unless we consult the client we cannot say anything to it.' On that day it was arranged for ₹ 13,000 plus the mortgage-money. This matter was adjourned at that time. Satish was standing behind Probodh Babu, and Mr. Justice Fletcher addressing him, told him, 'tell your sister that the compromise will be to her benefit. I have thoroughly understood the case, and in my opinion it is a benami transaction. Q.--We want to know exactly what happened on the 7th? A.--On the 7th they wanted more. Afterwards it was settled at ₹ 13,500. Q.--Afterwards--when? On the same day or the next day? A.--On the 7th, after some consultation with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. I said to Dr. Mitter that unless something more was offered my client was not agreeable to the compromise. Q.--And ₹ 500 more was offered. A.-Yes. Q.--Did you ask your client to go and fetch Mr. Chakravarti? A.--I do not remember if I did. Q.--No occasion arose for any argument? A.--So far as I remember no occasion arose for argument on the 7th. Q.--Were you present at 2-30 when the petition was put in? A.--Yes. Dr. Mitter handed something to Haradhan Babu. He read it out and I handed it over to my client who took it away and went away. Q.--You distinctly remember you never sent for Mr. Chakravarti? A.--I cannot be positive about it, it is so old. 17. Nothing of importance beyond this was elicited. 18. The Appellate Court insisted quite properly upon the examination of these two Vakils. They treat their evidence as so much in conflict with the evidence not only of the two brothers of the appellant but of the appellant herself as to utterly discredit her and them as witnesses, and yet it never apparently occurred to the learned Judges that it would have been well if the brothers of the appellant had had an opportunity of cross-examining t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined leave to appeal to His Majesty in Council, applied to the Court for, and on the 2nd of September 1920 obtained, an order that ₹ 4,000 (portion of the ₹ 13,500 paid into Court) should be held, as security for the costs of the respondents in the appeal to this Board. It was contended that this transaction amounted to an adoption by the appellant of the decree while at the same time she was impeaching it, and was therefore, estopped from, doing so. If the appellant should fail in this appeal, the money lodged in Court will belong to her. If she succeeds in the appeal the money lodged in Court will be returned to the respondents, subject, however, to any claim she may successfully establish to have any costs awarded to her paid out of it. In their Lordships' view the point is entirely unsustainable. On the whole, therefore, their Lordships are of opinion that the appeal succeeds, that the judgment and decree appealed from were erroneous and should be reversed, that the judgment and decree of the Additional Subordinate Judge was right and should be restored, and that the respondents should pay to the appellant her costs of the appeal to the High Court and of this a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
