Jadu Sahu and Another vs Chamra Sahu and Others

Chatterji, J.—This appeal arises out of a suit for partition between two branches of a Mitakshara family represented by two brothers and their respective sons or grandsons. Plaintiff 1 and defendant 1 are the two brothers of whom the latter is the elder. Plaintiffs 2 to 5 are the sons or grandsons of plaintiff 1 and defendants 2 to 6 are the sons of defendant 1. All the defendants filed a joint written statement, and their main defence was that certain joint family properties purchased in the name of plaintiff 1 were not included in the plaint. The nature of the defences will appear from the following issues framed in the suit:

Have all the joint properties teen included in the suit ?

Whether the properties claimed by plaintiffs as their self-acquired properties are really so? and

To what relief, if any, are the plaintiffs entitled?

When the suit came up for trial an application was filed on behalf of the defendants to the effect that if plaintiff 1, Chamra Sahu, took special oath and made statements as to the several items claimed by the defendants mentioned in the schedule attached to and filed with the written statement, they would be bound by his statements, and that those items which Chamra Sahu would thus admit together with the properties admitted in the plaint might be partitioned. This application was signed by defendants 1, 2, 4 and 5 and also by the pleader who had appeared for all the defendants. Plaintiff 1 did take special oath and the suit was disposed of on his statements and a preliminary decree was passed. Against that decree defendants 3 and 6 have preferred this appeal.

The first point urged by Mr. Rai Gurusaran Prasad on behalf of the appellants is that they did not join in the petition for special oath and are not therefore bound by the statements made by plaintiff 1 on special oath. He laid stress upon the fact that the application for special oath was signed by the other 4 defendants and not by the appellants. But the pleader who, it appears from the vakalatnama, appeared on behalf of all the defendants did sign the petition.

It however appears from his endorsement on this petition that he at first signed as "Satis Chandra Ray for all defendants"; then "all defendants" were struck out and instead he wrote "defendants". From this it was argued that the pleader did not really represent the present appellants in this petition. This contention cannot be accepted, because the petition on the face of it purports to be filed on behalf of the defendants without specifically mentioning the four defendants who actually signed it, and the pleader did sign for defendants. If really the pleader did not represent the present appellants, he should have informed the Court then and there that he signed the petition for defendants other than the present appellants. There is no doubt that the pleader signed the petition on behalf of all the defendants and the reason why it was signed by four of them only is that they happened to be present. It is then argued that the pleader, if he really signed on behalf of the present appellants, had no authority to do so. The vakalatnama by which the pleader was appointed empowered him to file petition of compromise in the suit, file petition for referring the case to the arbitrators with and without the signatures of the defendants, withdraw the suit by putting in petition without their signatures and amongst other things, to take whatever steps he thought necessary in the suit. It must be remembered that defendant 1, who is the father and obviously the managing member of the family, was present and signed the petition. The pleader must have received proper instruction before he filed the petition on behalf of the defendants. Under the circumstances he thought it prudent to sign the petition on behalf of the absent defendants, namely the present appellants, particularly when he found that the father and the other brothers also actually joined in the petition. The powers given by the vakalatnama were wide enough to authorize the pleader to file a petition for special oath.

Mr. Rai Gurusaran Prasad has referred in particular to the decision of the Bombay High Court in Sadashiv Rayaji v. Maruti Vithal (1890) 14 Bom. 455 where it was held with reference to the terms of the power of attorney adduced in evidence in that case that the agent had no authority to bind the principal by offering special oath to the opposite party and powers of the pleader were no larger than those of the agent. It was however observed in that case that

the general words implying an authority to do all that defendant 2 himself could do can only mean that the agent could do all that was necessary for the prosecution of the suit in the ordinary way

and that bringing the case to a close by offering a special oath is not a step that was necessary for the prosecution of the suit in the ordinary way. In the first place the case was decided with reference to the terms of the particular power of attorney before the Court; in the second place, the general observations made in the course of the judgment do not, with all respect to the learned Judges, appear to me to be quite convincing. If an agent represents the principal and his act is binding on the principal as if it was an act of the principal himself, I fail to see why, when the principal authorizes his agent to do whatever is necessary for the prosecution of the suit, the principal will not be bound if the agent in the interest of his principal offers a special oath to the other side. The decision appears to have been dissented from by the Allahabad High Court in Wasi-Ul-Zaman Khan Vs. Musammat Faiza Bibi, and by the Calcutta High Court in Mahammad Mahmud Choudhry and Others Vs. Behary Lal Saha and Others, . The facts of these cases are very similar to those of the present. In Mahammad Mahmud Choudhry and Others Vs. Behary Lal Saha and Others, it was held that though a pleader as agent on behalf of his client cannot bring a suit to a close by offering to be bound by the oath of the opposite party in a particular form, it was quite open to the Court to make an inference from the particular circumstances of the case that there was an authority on the part of the pleader because of the presence of one of the adult defendants who evidently had been put forward by the others to take all necessary steps in connexion with the suit. In Wasi-Ul-Zaman Khan Vs. Musammat Faiza Bibi, the Court had to construe a special power of attorney executed by a Mahomedan wife in favour of her husband by which the latter was authorized to conduct a case on her behalf "as he should deem fit," to compromise or withdraw the suit, to refer it to arbitration and to nominate and appoint arbitrators. It was held that by these terms the husband had authority to offer special oath to the other side. In the present case, as I have already mentioned, the vakalatnama authorized the pleader to take whatever steps he thought necessary in the suit. We must presume that the pleader would never have filed the petition on behalf of the defendants including the present appellants if really he thought that he had no instructions to represent the present appellants. Under these circumstances I am inclined to hold that the pleader had authority to file a petition on behalf of the appellants offering special oath to the other side.

The last point raised is that in view of the statements of Chamra Sahu himself the learned Subordinate Judge should have excluded the Bandheya lands from partition. The statement in question is "I have not purchased Bandheya from Deochand and Rupchand Sahu." from the schedule attached to the plaint it appears that 12.96 acres of raiyati lands in village Bandheya were included in the claim for partition. The defendants in their written statement nowhere said that these lands were their self-acquired property. On the other hand it is clearly mentioned in the petition for special oath that the items already admitted by the plaintiffs in their plaint need not be put to the witness (Chamra Sahu). From the schedule filed with the written statement it appears that the defendants claimed certain proprietary interest in village Bandheya as joint family property which was not included in the plaint. It is therefore quite clear that the statement of Chamra Sahu refers not to the raiyati lands in village Bandheya but to the proprietary interest in the village. With regard to the raiyati lands it appears upon the pleadings to be the common ground that they are joint family properties. All the contentions fail and I would dismiss the appeal with costs. In the circumstances of the case hearing fee is assessed at five gold mohars.

Manohar Lall J.

I agree. I wish to add a few observations in order to impress upon the litigants that they should realize the extent to which they are bound by the acts of persons who are employed as agents having authority to act on their behalf. The learned advocate for the appellants drew our attention to a large number of authorities; but the case upon which he particularly relied was the case of Sadashiv Rayaji v. Maruti Vithal (1890) 14 Bom. 455. In that case a power of attorney had been given by defendant 2 to one Abaji Narayan; the learned Judges in construing it as not conferring any extraordinary power Upon Abaji pointed out:

The general words implying an authority to do all that defendant 2 himself could do can only mean that the agent could do all that was necessary for the prosecution of the suit in the ordinary way.

The power of attorney as printed at p. 455 of the report is silent as to whether the agent could refer the dispute to arbitration or withdraw the suit from trial. It appears to me that it was for this reason that the learned Judges held that the agent Abaji could not have brought the suit to a termination in any special manner, for instance, by referring the case to arbitration, or by offering as he did "to be bound by the oath of the opposite party in a particular form." At p. 458 the learned Judges threw out a doubt whether any person but the party himself can make such an offer as is contemplated in Section 9, Oaths Act of 1873.

This matter was not argued before us; but it is enough to state that towards the end of the judgment the learned Judges did come to the conclusion

of course, if a party specially authorizes his pleader or an agent, to make an offer to be bound by a particular oath, he might be estopped from retracing the step he had taken if his offer were acted on.

I therefore do not consider that this case is any authority for the proposition that the power of attorney in the present case printed at p. 10 of the paper book which, as my learned brother has just pointed out, distinctly authorizes the pleader to file a petition of compromise with or without the signature of his client, to withdraw the suit by putting in petition without the party''s signature, and to take whatever steps the pleader may consider necessary in the suit, did not authorize the pleader in law to agree to the case being decided on the oath taken by Chamra Sahu in a special manner. The next case relied upon is that in Ramasawmi Odayan Vs. P.M. Ramasawmi Odayan and Others, . This case merely states in two or three lines that the learned Judges are prepared to follow the decision in Sadashiv Rayaji v. Maruti Vithal (1890) 14 Bom. 455 but gives no reason what soever.

The decision in Talawand v. Fateh Din A.I.R (1918) . Lah. 126 was next relied upon; but in that case the learned Judges pointed out that Fateh Din alone (and not the plaintiff-appellants) was bound by the result of the special oath; the learned Judges came to the conclusion that "so far as the record shows, Fateh Din alone agreed to be bound by defendants'' oath" but counsel for respondent-defendant urged that Jhandu, plaintiff, and also the pleader who represented all the plaintiffs were present when Fateh Din challenged defendant, and that Jhandu held a power of attorney from those plaintiffs who were not present. The contention was that it should be held that all the other parties were also bound. The learned Judges on the facts and circumstances of that case overruled the contention. This case is no authority for the proposition as to the effect to be given to the terms of a particular power of attorney. The power of attorney held by Jhandu in that case had not even been quoted or discussed in the judgment. The decision in Ram Ratan Vs. Ram Lal Singh and Another, was also relied upon, but this case merely decides:

Where a party offers to be bound by the oath of a witness and the evidence is given, the evidence so given shall, as against the person who offered to be bound, be a conclusive proof of the matter stated.

This proposition is not denied and cannot be denied by anybody. The case in Wasi-Ul-Zaman Khan Vs. Musammat Faiza Bibi, seems to fit in with the case before us. The power of attorney in that case, as has been pointed out at p. 132, is very similar to the power of attorney in the case before us. In that case the lady gave her husband

full powers to conduct the case as he should deem fit and in the deed she also set out that he had power to compromise the suit, to withdraw the suit, to refer the point in dispute to arbitration, to nominate and appoint arbitrators and concluded by saying that every step that he might take in the conduct of the case was to be considered as having been taken by her herself.

This is exactly how the vakalatnama in the present case at p. 10 of the paper book reads. I therefore agree with my learned brother that there is no substance in the contentions raised by the appellants and that the appeal should be dismissed with costs assessed, at five gold mohurs.