Provat Kumar Majumdar vs Santosh Kumar Majumdar

P.N. Mookerjee, J.—The only point that has been argued in this appeal is as to whether the compromise recorded by the court below properly comes under Order XXIII, Rule 3 of the Code.

The suit in question was a suit for partition. There was originally one Plaintiff in the suit, namely, Santosh who was the elder son of one Radhika Bhusan Mazumdar, deceased. Provat, the other son of Radhika, and the latter''s widow Ramrangini, and Govinda, Radhika''s youngest brother, and the widow and the sons of Radhika''s other brother Gopinath as also Radhika''s cousin brother Bibhuti and the widow Kundabala of another cousin Mathura were the original Defendants. Later on, in the course of the suit, Ramrangini was made a co-Plaintiff.

The suit embraced quite a large number of properties, described in the various schedules to the plaint, namely, Ka to, Gha. Schedule Ka contained the immoveable properties which, according to the plaint case, had been obtained by Radhika. exclusively, during his life time, on an amicable partition (with his co-sharers) of some of the joint properties of the parties. That schedule also contained the moveable properties exclusively belonging, as alleged in the plaint, to Radhika at the time of his death. Schedule Kha comprised; according to the plaint, the joint moveable and immoveable properties of all the parties. For our present purpose, it is not necessary to go into the details of the other schedules.

The suit was filed on December 9, 1948. There were, acute controversies between Provat, the Defendant No. 1, and his mother (Sic) her brother, all belonging to Radhika''s branch. Of the (Sic) Defendants, some did not appear in spite of service (Sic)d the others appeared but filed no written naturally, therefore, the main contest lay between (Sic) Santosh and Ramrangini, on the one hand, and the Provat, on the other.

On November 24, 1949, Plaintiff No. 2 Ramrangrai applied for her examination on commission and an order to that effect was made by the court on November 28 following. Prior to that, the suit bad been fixed for peremptory hearing on December 12, 1949.

At the instance of the parties the date of Plaintiff No. 2''s examination on commission and the date of the peremptory, hearing of the suit were shifted to the beginning of January, 1950. In the meantime, there were negotiations for a settlement between the main contestants, the Plaintiffs Nos. 1 and 2 and the Defendant No. 1, and, after the case had been opened and had proceeded for some time on January 3, 1950, a petition of compromise, purporting to be between the said three persons, was actually filed on the 4th. It appears that there was at first a draft solenama, prepared on the 4th, which was signed by the lawyers of the Plaintiffs and Defendant No. 1, and, thereafter, there was a fair copy, made and filed in court, which was signed only by the Plaintiffs'' lawyers. On the next day, viz., January 5, 1950, the Plaintiffs applied for disposal of the suit under Order XXIII, Rule 3 of the Code in terms of the solenama, filed in court, as aforesaid, and, as, apparently, the Defendant No. 1 objected, the court fixed the 14th for the hearing of the compromise matter and granted leave to Defendant No. 1 to file objection, if any, in the meantime. On the 6th, a long petition of objection was filed by Defendant No. I, and, after taking necessary evidence, in the matter and considering the cases of the parties on the question of the compromise, the court ordered recording of the compromise and disposal of the suit on the basis of the same as between the parties thereto and dismissed the suit against the other parties. This order was passed on March 31, 1950, and, according to the direction contained in it, a preliminary decree was drawn up to the above effect and signed and sealed on May 17, 1950. On July 3, 1950, the present appeal was filed against the said order of the learned Subordinate Judge dated March 31, 1950.

It thus appears that before the filing of this appeal against the order recording the compromise, a decree had already been passed in the suit. In these circumstances, a question might have arisen as to the maintainability of the appeal. In the (Sic) earlier decision of this Court, reported in Bengal Coal Company, Ltd. Vs. Apcar Collieries, Ltd., and Others, , the, view appears to have been taken that in such circumstances, an appeal from the order, recording the Compromise, would not have been maintainable and a similar found expression in the decision of the Bombay High Court in the case of Onkar Bkagwan v. Gamna Lakhaji and Company AIR (1939) (Bom.) 205 as also in the Madras decision in Alamelu Ammal Vs. Rama Iyer and Another, . but appears that a later Division Bench of oar Court took a different view (vide Haridas Sadhu Khan Vs. Iswar Ratneswar and Others, ) after explaining the earlier decision in (Bengal Coal Company Ltd. v. Apcar Collieries Ltd. Supra and that later decision Onkar Bhagawan v. Gamna Lakhaji Company Supra was cited with approval and followed in the subsequent case of this Court in Damodar Saha Vs. Aswini Kumar Saha and Another, ; and, although there is, apparently, a conflict of judicial opinion on this point, the preponderance of authority is in favour of the maintainability of the appeal (vide Mahamed Idris Meah v. Mohamed Isahak AIR (1918) (Cal.) 431; Haridas Sadhukhan v. Iswar Ratnesswar Supra; Damodar Saha v. Aswini Kumar Saha Supra; Ramanarayana Rao v. Ram Krishna Rao AIR (1936) (Mad.) 385; Umia Shankar Naranji v. Shivsankar Probhasankar AIR (1944) (Bom.) 230; Sabitri Thakurain Vs. F.A. Savi and Others, and Mohamad Idris Haider and Others Vs. Mohammad Habibur Rahman, . For our present purpose, however, it is not necessary to pursue the matter further as, before us, no objection was taken to the maintainability of the present appeal and as we are not impressed also by the Appellant''s arguments on the merits. We are, therefore, not called upon in this case to consider this aspect of the matter and we shall proceed at once to discuss the merits of the appeal.

On the merits, Mr. Chakrabarty, appearing for the Appellant, has attacked the legality of the order recording the compromise, chiefly, on two grounds, via., (1) that by the compromise, the suit has not been adjusted and (2) that the said compromise is not a lawful compromise within the meaning of Order XXIII, Rule 3 of the Code of Civil Procedure. The other possible question, namely, as to the factum of the disputed compromise or settlement, was not argued before us�and we think, quite properly,�as the evidence is overwhelming that the parties did actually agree to the said compromise and the learned Subordinate Judge''s finding in that behalf in favour of the Respondents cannot be successfully challenged on the materials on record.

On the arguments, advanced before us, the point that really arise) �for consideration is as to whether a compromise which is (Sic)t in the sense that, on the happening of a certain event, (Sic) thereof would not be or would cease to be binding upon (Sic)s is (a) an adjustment of the suit and (B) a lawful (Sic)or compromise within the meaning of Order XXIII, Rule 3 (Sic)de, so as to entitle the court to record the same and to decree accordance therewith under the said provision. opinion a compromise, otherwise lawful, does not cease to he so merely because it is contingent as explained above. We are also of the view that, unless the "contingency" element in the compromise be such as to lead to a revival of the either, in whole, or in part, upon the happening of the event in question, the compromise may well be an adjustment of the suit within the meaning of Order XXIII, Rule 3 of the Code. It is how well-settled that a partial adjustment of the suit is also contemplated by the said provision�and this appears also from the express language of the statute itself�and if, by the compromise, there is even a partial adjustment of the suit and the compromise does not contemplate or sanction revival of that part of the suit, an adjusted, upon the happening of the contingency, specified therein or under any other circumstances, and, the question of. contingency apart, the compromise is otherwise lawful, we are inclined to hold that Order XXIII, Rule 3 of the Code permits the recording, of such a compromise and the passing of "a decree in "accordance therewith so far as it relates to the suit". The compromise, to the extent it terminates or contemplates terminating the present suit without any scope for revival, is a final adjustment, and it is otherwise contingent,�or, as the learned advocate for the Appellant put it, tentative or provisional,�character would not affect this position and would not prevent the court from recording it and giving it effect under the said statutory provision. In this view of the matter, we would uphold the order of the learned Subordinate Judge, impugned in the present appeal.

From the materials before us, it is quite clear that, in the suit, out of which this appeal arises, there were disputes between the main contestants, the Plaintiffs and the Defendant No. 1, in which the other parties were not interested, and there were also questions which concerned all the parties to the suit. The disputes, first above mentioned, or, at least, some of them, were clearly settled by the impugned compromise. To that extent, there was an adjustment of the suit and, though that settlement may cease to have effect on the rights of the parties under certain contingencies, it is quite clear that the present suit would not be revived. So far, therefore, as the present suit is concerned, that settlement, to the extent that it affects this suit, would be a final adjustment. It is to be remembered further that a co(Sic) or contingent contract or an agreement which will (Sic) operative on the happening of a. certain event or con(Sic) which will become inoperative upon any such happened (Sic) recognised in law and, as barring the element of co(Sic) other defect was alleged before us in relation to the (Sic) compromise, the said compromise must be held (Sic) The impugned compromise, therefore, satisfies the (Sic) Order XXIII, Rule 3 of the Code and has been properly (Sic) learned Subordinate Judge.

This appeal must, accordingly, fail and it is dismissed with, costs, bearing fee being assessed at five gold mohurs.

Renupada Mukhbrjee, J.

I agree.