Kallar Choudhury and Others vs Mt. Kamod Choudharain and Another

Wort, J.—This appeal relates to a dispute with regard to title to 2 annas 18 gandas in a tauzi numbered 14660. The plaintiffs are the appellants before this Court. The property was admittedly that of one Nainan Chaudhury who adopted the plaintiffs father, and in 1872 executed what has been described as a deed of gift granting the property first to his own widow and then, after her death, to Nainan Chaudhury. The defendants also claimed title to this property, and in the following circumstances: Subsequent to the deed of gift there was litigation between the defendants father (who incidentally was a member of the same family as Nainan Chaudhury, that is to say he descended from the same ancestor) and the plaintiffs father, and that litigation related to property other than the property in dispute in this action. The action was compromised, and by the compromise not only the property then in dispute in that action was dealt with but also the property in dispute in this action. To repeat, both parties were subject to the terms of the compromise; but this is to be noticed that when the matter came before the Court to record the compromise, the operative part of the decree pronounced related only to the property which was the subject-matter of the dispute in that action. Then in 1910 the widow of Nainan Chaudhury accelerated the interest of the plaintiffs'' father by executing a deed of relinquishment in his favour. Now it is in these circumstances that this action arose. I should have added that the cause of action stated in the plaint in this action was that the defendants had got their names entered in the Land Registration records. There was this further fact to be noted that the widow of Nainan Chaudhury survived until the year 1928 which was after the date on which this action was brought.

The plaintiffs in the action claimed a declaration of their title to the property and, included in that prayer, they asked the Court to hold that the defendants had no interest in the property. They claimed also a decree for what has been described as confirmation of possession. The learned Judge in the trial Court came to a conclusion, which in no way has been affected by the decision of the lower appellate Court, to the effect that from the date of relinquishment by the widow in 1910 the plaintiffs have been in possession. The learned Judge of the Court below proceeded to deal with the case on these lines: he came to the conclusion, as I have said, that the plaintiffs were in possession and then came to consider the question of the title of the defendants. In so doing, one of the matters with which he dealt was the question of whether he was entitled to take into consideration matters which had arisen after the date upon which the suit was brought, holding that he was so entitled. He recognized the fact that the widow of Nainan Chaudhury had died and that by her death the defendants were entitled to possession of the property having a title thereto, and in those circumstances he dismissed the plaintiffs'' suit.

In my judgment the question of whether the death of the widow can be taken into consideration in this case does not arise. The short question to be determined is, in my opinion, what was the effect of the compromise entered into by the members of the family by which the 2 annas 16 gandas was disposed of in the manner in which I have stated. The argument addressed to us by Mr. Deon behalf of the defendants is that the compromise was by way of being a family arrangement, and by that family arrangement the defendants title to the property was declared. That argument is based in my judgment on the assumption that in every case of a family arrangement title to the property, the subject-matter of the arrangement, does not pass to persons who are parties to that arrangement but that their title is merely recognized; and this assumes that each party to this family arrangement has some sort of title to the property, or what has been described in one of the authorities as ''fighting title'' to the property. It is true that in Clause (2), of the compromise petition it is stated that there was a dispute with regard to the 3 annas 6 gandas 2 kauris odd of the property of Nainan Chaudhury; but I have no doubt in my mind that in the circumstances of the case at the date of the compromise the title to the property in dispute in this action which is 2 annas 18 gandas of the 3 annas odd was undoubtedly in the plaintiffs'' father. In those circumstances it is impossible to hold that this compromise can be looked upon as not giving the defendants title but merely declaring their title. If the defendants'' title is based on the compromise for the reasons which presently appear they would be met with the objection that the compromise is not registered.

There is therefore a further matter which has to be considered in this connexion. I have already said that the operative portion of the compromise dealt with the property in dispute in that action and omitted the property in dispute in this action. It cannot therefore be said that any title was created in the defendants by the decree itself. In this connexion Order 23, Rule 3, Civil P.C. must be considered which provides:

where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit.

This matter was considered by their Lordships of the Judicial Committee of the Privy Council in the case of Hemanta Kumari Debi v. Midnapur Zamindari Co. 1919 PC 79. That case also considered a previous decision of the Privy Council in Pranal Annee v. Lakshmi Annee (1899) 22 Mad 508. Lord Buckmaster then commenting on that decision stated that it decided merely that the compromise therein being dealt with was admissible in evidence and did not decide what effect the document had upon the property to which it referred; and the main question which came before their Lordships for consideration in Hemanta Kumari Devi''s case Hemanta Kumari Debi v. Midnapur Zamindari Co. 1919 PC 79 also was whether the compromise in a previous suit was admissible in evidence. They in the first instance decided that the compromise in question was not a lease and therefore did not come within the mischief of the first part of Section 17, Registration Act. Lord Buckmaster goes on to point out that by Section 17(1)(b), it was provided that other non-testamentary instruments which purport or operate to create, whether in present or in future, any right, title or interest, vested or contingent, of the value of Rs. 100" required registration subject to the exception that a decree or order of the Court did not so require registration. Now it is obvious from the reasoning of Lord Buckmaster that their Lordships of the Privy Council considered the compromise then before them operated to create a future right to hold what was embodied in the decree founded upon the compromise; although not included in the operative portion of the compromise it came within the exception in Sub-section (2) of Section 17, and therefore did not require registration. In my judgment the only view that is possible to take in this case of the compromise is that it created a contingent right in the defendants to this property after the death of the widow of Nainan Chaudhury and that it was a bare agreement in contradistinction to creating a title in the defendants.

The position therefore shortly is this. The plaintiffs, as I have said, have been found to be in possession. The defendants have an agreement upon which in an action for specific performance they might rely in order to obtain a title to the property. Their right to obtain specific performance of the agreement contained in the compromise arose in the year 1928 on the death of the widow. Now the question in those circumstances is whether this Court in its discretion should grant the plaintiffs the declaration which they seek. As I have stated it was a claim for a declaration of title and a declaration that the defendants have no interest in the property in suit. In Ariff v. Jadunath Majumdar 1931 PC 79, their Lordships of the Privy Council held that the defendant in possession of property under an oral agreement was not entitled to rely upon the doctrine laid down in Walsh v. Lonsdale (1882) 21 Ch D 9, as the circumstances which would so entitle him to rely upon that decision were not present. Lord Russell of Killowen in delivering the decision of their Lordships of the Judicial Committee made this observation:

The respondent (that was the defendant in possession of the land on an oral agreement) was not in a position to obtain specific performance of the agreement for a lease from the same Court and at the same time as the relief claimed in this action. Had he been so entitled the position would be very different for then the respondent could claim to have executed in his favour by the appellant an instrument in writing which he could duly have registered, the appellant''s ejectment action being stayed in the meantime.

The short point which comes to be determined in this case is whether in the circumstances the defendants were in a position to obtain relief by way of specific performance. Clearly from any point of view the defendants right to specific performance is barred by limitation, the widow upon the death of whom their title vested having died in the year 1928. In these circumstances it seems to me that there is no reason why the plaintiffs should not be entitled to the declaration which they sought in the suit. For those reasons I would hold that the decision of the learned Judge in the Court below was erroneous, that judgment would be reversed, that of the Munsif restored and the appeal allowed with costs.

Rowland, J.

I agree. The suit was for a declaration of title and confirmation of possession on the allegation that the plaintiffs were in possession of the property not with standing that in 1926 the defendants had got mutation of their names in the Collect orate Land Registration Registers by expunging the names of the plaintiffs. The plaintiffs assert a title founded as follows. The property had belonged to Nainan Choudhary. Nainan had adopted Nandlal, the father of the plaintiffs, and had in 1872 executed a deed of gift by which his widow Santokhman Chaudhurain was on his death to enjoy this property for her life, and thereafter Nand Lal should be absolute owner. On 11th June 1910 Santokhman surrendered her life interest to the plaintiffs'' father who came into possession. At the date of the institution of the suit Santokhman was alive and the plaintiffs were in possession of the property. All these allegations of the plaintiffs have been found by both the Courts to be true in spite of the denial by the defendants of the title and possessions of the plaintiffs. The Courts below have held that on the date of the suit the plaintiffs were in possession and were in possession with title. During the pendency of this litigation, however, the widow Santokhman died; and the District Judge allowed the appeal and dismissed the suit, holding that after the death of Santokhman the plaintiffs had no subsisting title and that on the death of Santokhman the title of the defendants became perfected. This, in his view, was the effect of a compromise petition and decree inter partes in suit No. 98 of 1889. The property now in suit was no part of the subject-matter of that litigation, but the litigation was set at rest by an agreement which besides disposing of the matter directly in suit mentions in para. 2, that there was a dispute between the parties with regard to the share "left by Nainan Choudhary" regarding which no suit has been instituted. Para. 5 of the compromise says:

It was decided that after the death of Mt. Santokhman Chaudhrain, widow of Nainan Choudhary, the defendant 1st party, namely Nandlal and Babu Lal will give 14 gandas, 1 k. 1 kr. to the plaintiff (i.e. to the present defendant.)

This clause in the compromise was construed by the Munsif to be an agreement covenanting at a future date to transfer the property it refers to, and the District Judge has said that the clause in the compromise literally translated means "that the plaintiffs'' father agreed to give the disputed share to the defendants'' father." The District Judge, however, reasons in what appears to me a somewhat speculative manner, as to the intention of the parties and comes to a conclusion opposite to what he himself had said was the plain meaning of the words used. I think that the Munsif was right and that the compromise should be read according to the plain meaning of its language, and I think that the compromise is an agreement to convey and is nothing else. As to the admissibility in evidence of such an agreement to convey there is no difficulty. A similar agreement was admitted in evidence and allowed to be made the basis of a suit for specific performance in Hemanta Kumari Debi v. Midnapur Zamindari Co. 1919 PC 79. If I am right as to the question what the agreement amounts to, there is likewise no doubt that its effect is not to transfer any title in land: see 58 Cal 1235 Walsh v. Lonsdale (1882) 21 Ch D 9. In that case the person entitled to get a lease in pursuance of the agreement had slept on his rights and they had become barred by time; but their Lordships have clearly stated what would have been the nature of his appropriate remedy had he been in time. Lord Russell says:

Then the respondent could claim to have executed in his favour by the appellant an instrument in writing which he could duly have registered, the appellant''s ejectment action being stayed in the meantime. In these circumstances the respondent would obtain complete protection, but consistently with and not in violation of the provision of the Indian Statute.

That being so, the Munsif, I think was perfectly correct in observing: "The Court cannot grant any relief to the defendant unless he chooses to enforce the agreement according to law." Mr. Deon attempts to persuade us to regard the compromise in a different sense--to treat it as a family arrangement declaring the existing rights but not creating rights--fail on examination of the contents of the document itself. Therefore I, entirely agree that the appeal should be allowed, the decision of the District Judge set aside and the decision of the Munsif restored.