Sri. Sri. Iswar Dadhi Baman Narayan Thakur vs Ritendra Nath Banerjee

Abani Mohan Sinha, J.—This revisional application is directed against the judgment and order passed by the learned Asstt. District Judge, Seventh Court, Alipore, in Title Suit No. 10 of 1990 of that Court refusing to record the compromise arrived at between the parties and to decide and dispose of the suit in terms of such compromise. The learned Asstt. District Judge rejected the petition of compromise accordingly. Being aggrieved by and dissatisfied with the judgment and order of the learned Asstt. District Judge passed on April 4, 1991, by his order No. 30 of that date, the Petitioners have come up in revision.

The short reference to the fact is necessary for appreciating the grievances and contentions of the respective parties. One Kamala Kanta Banerjee owned and possessed valuable properties both moveable and immoveable who died on September 7, 1895, leaving behind a will which was executed by him on August 18, 1894. By this will he bequeathed all his property for the daily seba puja and periodical festival of Sri. Sri. Dadhi Baman installed in his dwelling house. All these properties under the will were dedicated to the said deity as debottar. He appointed under the will Sm. Tailakya Tarini Debi as sebait and trustee for performance of seba puja of the said deity and entrusted her with deity for protection and preservation of such debottar properties. She was also appointed as executrix under the will. Sm. Tailakya Tarini Debi obtained probate in respect of the will on February 5, 1896, from the Court of the District Judge, Alipore, 24-Parganas. Thereafter she was given the charge of administering the estate after assuming the post of sebait and trustee in respect of the debottar estate and she did so till her death on May 24, 1980. It was laid down in the scheme of the debottar as contained in the will that after the death of Tailakya Tarini, their daughter-in-law would be appointed sebait and, after her death, the eldest and the major son amongst her sons excepting Hiralal and in their absence the eldest grand-son of Kamalakanta would be appointed sebait. After the death of Tailakya Tarini and also of Nandarani, her daughter-in-law, the lineal descendant of the eldest of the eligible son acted as sebait of the debottar estate under the terms of the will which created the debottar estate. But most of them obtained letters of administration from the Court for administration and management of the estate which although were not required to be taken under the law as the management related to debottar estate and not to the estate of the deceased testator, Kamala Kanta Banerjee. The administration of the will was completed after obtaining the probate and creation of debottar under the scheme of the will. The last of such application for letters of administration was made in 1967. It is alleged that Krishna Chandra Banerjee who was preferentially eligible to be appointed as sebait, in fact administrator of the debottar estate for long years, was guilty of mismanagement and malpractice and also mis-appropriation of the compensation money awarded for by Land Acquisition Department for acquisition of land of debottar estate. One Sibdas Banerjee, the grandson of Kamala Kanta Banerjee born in the line of his wedlock with Tailakya Tarini, made the above allegations against the administration of Krishna Chandra and obtained letters of administration for the management of debottar estate.

This Krishna Chandra preferred an appeal against the judgment of granting of letters of administration in favour of Sibdas Banerjee before the Hon''ble High Court. this Court after hearing allowed the appeal and set aside the judgment of the Court below appointing Sibdas as Administrator. Krishna Chandra died on June 24, 1989, leaving his widow Sm. Radha Rani and 4 sons including the opposite party Nos. 1 and 2, daughters, who are the Petitioners Nos. 6 and 7 as his heir and heiress and legal representatives under the Hindu Succession Act. It is further alleged that during the last few years of his life Krishna Chandra became blind and depended much on his son Ritendra, opposite party No. 1 in this case, for the purpose of management of the estate who took advantage of his father''s blindness and falsely represented himself as sebait and did many illegal acts relating to debottar estate and misappropriated the income of the debottar for his own use. He has been committing all these misconducts to the prejudice of the debottar estate without rendering any accounts to the Petitioners who are interested in the maintenance of the debottar estate. Accordingly, with all these allegations the Petitioners, as Plaintiffs, filed the Title Suit No. 10 of 1990 for certain declaration, vendition of accounts, injunction and other reliefs. They have also prayed for laying down a scheme for the management and maintenance of the debottar estate.

In that suit the parties amicably settled their disputes out of Court and a scheme of management was framed and both the parties filed an application in the said suit praying for a decree in terms of compromise petition. In the said suit, however, the proforma Defendants Nos. 2 and 3 and 4 to 8 filed a written objection against the recording of the compromise. The learned Asstt. District Judge, however, by impugned order held that the terms of the compromise petition are not according to. the terms of the will creating the debottar and the parties to the compromise petition are not eligible to become sebaits in terms of the said will. He also recorded a finding that the scheme drawn up in the compromise petition were not according to the terms of the last will and the petition as such could not be recorded as legal and no decree could be passed in terms of such compromise petition.

Mr. Shyama Prasanna Roy Chowdhury, learned Advocate representing the Petitioners, the heirs of Krishna Chandra, has urged that the impugned order is ex facie, illegal as it failed to consider that the dispute was confined to the contesting parties in the suit, namely, the Petitioners as Plaintiffs and the opposite party No. 1 as Defendant while others are only the proforma Defendants against whom no relief in the suit has been directed or claimed. He has further drawn our attention to the amended provision of Order 23 Rule. 3 which lays down that the Court should satisfy itself, before recording a compromise that a suit has been adjusted wholly or in part by lawful agreement or compromise in writing and signed by the parties in respect of whole or in part of the subject-matter of the suit, and then the Court shall order such agreement or compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject- matter of the suit. After the amendment of the Code in 1976 these provisions relating to compromise of the suit, in our view, have been clarified, specified and enlarged so as to put an end to the dispute between the parties for which they may have to come to Court in suit or proceedings. The satisfaction of the Court for acting Under Order 23 Rule 3 should be on the following points:

(1) That there has been an adjustment which may be whole or in part.

(2) That such adjustment should be made by any lawful agreement or compromise.

(3) That the compromise or lawful agreement must be in writing and signed by the parties to the suit.

On having such satisfaction the Court shall pass a decree in accordance with the compromise petition and such decree shall relate to the parties to* the suit. It has been also laid down in the provisions of Rule 3 of Order 23 that the subject-matter of the agreement or compromise or satisfaction may be the same as subject-matter of the suit or may not be the same or in other words it may relate to matters which are not the subject-matter of the suit.

Mr. Roy Chowdhury, in the next place, has urged that the Court had no alternative than to record the compromise so far as it relates to the parties to the suit. According to him, the contesting parties were the deity, represented by the Plaintiffs who are the Petitioners in the present case, and Defendant No. 1 who was the oppoiste party No. 1 and all the reliefs claimed in the suit were directed against the Defendant No. 1 who was alleged to have committed act of misconduct and mismanagement relating to the debottar estate during the infirmity or blindness of Krishna Chandra, the last eligible eldest male member amongst the descendant of Kamala Kanta. At best he could have recorded the compromise so far as it related to the parties to the suit as described above and might have directed the suit to proceed against the other contesting Defendants. But it has been urged by him that proforma Defendants Nos. 2 and 3 and Defendants Nos. 4 to 8 were not at all interested to contest the suit and they did not file any written statement in opposition to the case made out by the Plaintiffs in the suit. They only came at the belated stage of the suit which was going to be compromised and filed written objection with a mala fide motive to obstruct or frustrate the settlement.

He has further drawn out attention to the Division Bench judgment of this Hon''ble Court in Appeal No. 342 of 1974 which was passed on August 3, 1977. Justice Anil Kr. Sen, as His lordship was then, speaking for the Division Bench held that Sibdas Banerjee who is opposite party No. 2 was not eligible to be appointed a sebait or administrator in respect of the debottar estate and the letter of administration granted by the Addl. District Judge, Fifth Court, Alipore, in favour of Sibdas Banerjee was ineffective. It was also held that he should not be appointed administrator superseding Krishna Chandra the predecessor-in-interest of the present Petitioners who had preferential eligibility and as such position, in fact, was admitted by Sibdas It was finally held that the letter of administration was incompetent in view of the fact that with the grant of probate and with the creation of debottar estate in respect of the estate left by the deceased testator, Kamala Kanta, nothing remains to be administered under the will left by Kamala Kanta.

It has been contended by the learned Advocate representing the opposite party No. 3 and Defendants Nos. 4 to 8 were not parties and as such the judgment and findings in the appeal are not binding on opposite party Nos. 3 and 4 to 8. In our view, this stand taken by the objecting opposite parties is not correct. The said judgment relates to debottar estate and judgment decided the claim of sebailship in favour of Krishna Chandra as a preferential descendant. In such suit no relief is claimed against them. If they are at all affected by any decree of that suit they may establish their right in a properly framed suit challenging the judgment and decree passed in the suit. They might have also contested the suit by filing written statement. In this context they may make an application before the Court below for contesting the suit by proving their locus standi and the affectation of their interest in the debottar estate which belongs to deity Petitioner No. 1 in the main suit. But they could not resist legally the recording of compromise so far as contesting parties to the suit are concerned.

Mr. Roy Chowdhury in support of his contention has relied upon a Division Bench judgment of our High Court in Mulchand Baid v. Osman Ali Mondal 37 C.L.J. 272 (274) in quoting the exact language of Rule 3 of Order 23 of the Code held that it is incumbent on the Court to pass a decree in accordance with the agreement or compromise only if the agreement is or compromise is lawful, in other words if it is enforceable in law and that one test may be applied to determine whether the agreement or compromise is lawful and if the parties were competent to enter into the agreement or if the compromise would achieve the purpose of the parties they had in view. It is urged by Mr. Roy Chowdhury that the purpose in this case which the contesting parties had in view was to effect the settlement in respect of the proper management and seba puja of the deity as well as for the proper protection, and preservation of debottar property. So the learned Asstt. District Judge was not justified in refusing to record such compromise. He has also referred to another decision in Kaluram Bheruji Vs. Bai Parvati, and urged that the trial Court had no jurisdiction to alter the terms of compromise arrived at between the parties and that the Court can only look into the legality and validity of the terms of compromise. Nothing could be shown by the contesting opposite parties that the terms are either illegal or invalid. This decision related to alteration of the compromise decree by a Court, the High Court in revision held that such terms could not be altered by the Court. Another decision relied upon by Ghulam Mohd. Khan Vs. Ghulam Rasool Bhat and Others, on the point that the objector who is not a party to the suit cannot object to a decree passed by the Court and that his remedy is by way of suit challenging the decree. It is submitted by Mr. Roy Chowdhury that the contesting opposite parties are not the principal Defendant in the suit and that no relief has been claimed against them and that if they are interested to resist the decree passed on compromise, they can challenge the same by a proper suit and not in this proceedings.

In our view, the learned Asstt. District Judge committed a jurisdictional error in passing the impugned order which should be set aside. The revisional application stands allowed: The order passed by the learned Asstt. District Judge is set aside. The compromise between the Plaintiffs and Defendant No. 1 who are Petitioners, and opposite party No. 1 be recorded in terms of Order 23 Rule 3 of the Code of Civil Procedure. The revisional application is thus disposed of. There will be no order as to costs.

Xerox copy of the order be delivered to the learned Advocates for the parties on their usual undertaking to apply for and obtain urgent certified copies.

S.K. Mookherjee, J.

I agree with the conclusion.