Srimati Sabitri Thakurain vs Mrs. F.A. Savi and Others

This is an appeal against an order of the Subordinate Judge of Monghyr passed under Order 23, Rule 3, Civil. P.C., directing that a compromise in a pending suit said to have been arrived at between the plaintiff (the appellant) on the one hand, and defendant 1 (Mr. Savi now dead) and defendant 2 (Suraj Mohan Thakur) on the other, be recorded. The case has a long history and in order to appreciate the various points raised it is necessary to have a general view of the protracted litigation. Ugra Mohan Thakur, a wealthy zamindar of Barari in Bhagalpur, died on 29th January 1914.

He left considerable properties though at any rate then burdened with heavy debts. He left surviving him his widow Savitri Thakurain (the appellant), three nephews (the sons of his half-brother Pran Mohan Thakur) and his mother Jugbati Debi. On 26th February 1914, i.e., within a month of his death, one Mr. Savi, who was the manager of the deceased''s estate, filed an application before the District Court of Bhagalpur for the probate of a will said to have been executed by the deceased on 10th May 1913.

It was said that the whole of the will was in the hand-writing of the deceased himself and that he had deposited it personally with the District Sub-Registrar of Bhagalpur under the provisions of the Registration Act. It purported to be attested by the lady Savitri Thakurain herself. The will is not before us, but its main provisions which are relevant for the purposes of this appeal were that the estate was to go to one of his nephewa (Suraj Mohan Thakur) as a residuary legatee and the widow Savitri Debi was to receive an allowance of Rs. 100 a month. The nature of this allowance is a subject-matter of controversy, namely, whether it was a maintenance or a legacy. Mr. Savi and one Hem Chandra Mitter were appointed executors.

The latter however refused to act and the application for probate was made by Mr. Savi alone. (An abortive attempt of the appellant to set up a rival will against the one propounded by Mr. Savi, was described and the judgment proceeded.) The probate case for the will propounded by Mr. Savi was taken up and probate was granted on 13th November 1914. An appeal to the High Court was dismissed on 14th May 1915. Leave to appeal was refused by the High Court and a prayer for special leave was also rejected on 29th December 1916.

In December 1919 while her appeal against the Calcutta High Court decision in her own will case was pending before the Privy Council, the plaintiff commenced a litigation attacking Mr. Savi''s will and its validity. It started with a plaint before the Original Side of the Calcutta High Court within whose jurisdiction some of the properties of the deceased were situated. At first she obtained from a learned Judge of that Court ex parte leave to sue in the High Court; but on the defendant''s objection the leave was withdrawn, and ultimately the suit out of which the present appeal arises was instituted in forma pauperis before the Subordinate Judge of Monghyr on 6th April 1920 being Suit No. 103 of 1920.

Between that date and the 25th November 1924, when the suit is said to have been compromised, there were a number of interlocutory orders passed by the learned Subordinate Judge and several of them were taken up to this Court. It is not necessary to detail them just now. Those that are relevant for the decision of this appeal will be mentioned in their proper places. It is sufficient to mention here that an order was passed (which was upheld by this Court) allowing Savitri Thakurain an ad interim maintenance of Rs. 150 a month besides Rs. 50 a month for houses rent. Various attempts to increase this amount were unsuccessful. After the disposal of the compromise matter by this Court in 1920 mentioned later the allowance was raised to Rs. 500 per month with an additional sum of Rupees 200 for house rent and Rs. 100 for conveyance. The lady was also allowed in some years Rs. 1,000 and in others Rs. 500 for the performance of the annual sradh of her husband. In this suit the plaintiff attacked the genuineness of the will and asserted that the probate was obtained by fraud. She further attacked the right of her husband to bequeath the properties to his nephew on the ground that some of the properties covered by the will were her personal properties and that the estate itself was an ancestral one, and under the Mithila School of Hindu law which governed the parties she was a coparcener with her husband and therefore her husband had no disposing power over the estate.

Later on a brief analysis will be given of the plaint and written statement of this suit.

The suit was taken up on 5th November 1924, when three issues namely issues 6(a); 6(b) and 6(c) were added; and the learned Subordinate Judge fixed 21st November 1924, for the hearing of issues 6 to 6(c) on questions of law only. These issues are as follows: "6. Is the plaintiff estopped from questioning the genuineness and validity of the will, dated 10th May 1913, and also her setting up a special plea of custom and law as bar to her husband''s power of disposal of his properties by will or otherwise. If so, whether the said will is genuine and valid? 6(a). Whether the alleged will dated 10th May 1913, is operative as to all or any of the properties to the suit. If so, as to which of them it is operative? 6(b).

Whether the decree of the probate testamentary suit No. 3 of 1914 was fraudulently obtained as alleged by the plaintiff. If so, does it bind the plaintiff? 6(c). Has the Court jurisdiction to try issues 6(a) and 6(b) in this Court?"

The plaintiff did not like the hearing of the suit piecemeal and moved this Court on 18th November 1924. The Subordinate Judge was called upon to report by the 28th idem why ho wanted to try those issues first. The Subordinate Judge submitted an explanation and adjourned the case till 27th November 1924. In the meantime on 25th November 1924, a petition of compromise admittedly signed by the plaintiff, Mr. Savi, and Suraj Mohan Thakur was handed over to the Subordinate Judge at the Monghyr railway station where he then happened to be and where the lady was also admittedly present at the time.

He took up the petition in Court on the next day (26th November 1924) and without passing a formal order for recording the compromise directed that a decree be prepared on its basis. The terms of this compromise will be given later.

A rule which was issued in connexion with the application of the plaintiff to this Court against the order of the Subordinate Judge directing issues 6 to 6(c) to be heard first was dismissed for want of prosecution on 16th December 1924. On 7th April 1925, Savitri Thakurain filed an application u/s 151, Civil P.C., alleging that the compromise petition did not contain the terms agreed to by her and that the terms she had agreed to were changed and new terms were fraudulently entered therein.

She also raised various objections against the legality of the compromise and prayed a recall of the order passing a decree on the basis of the compromise petition... The case was transferred to another Subordinate Judge, Mr. Ram Chandra Chowdhury, who on 6th July 1925, refused the application, holding that the plaintiff''s remedy was by a separate suit Being dissatisfied with this order the plaintiff moved this Court and on 8th, June 1926, this Court (Jwala Prasad and Bucknill, JJ.), held that the order of the learned Subordinate Judge, dated 26th November directing preparation of a decree on the basis of the compromise was illegal, as there was no formal order for recording the compromise, and a decree on a compromise could not be drawn up unless the compromise was recorded. The decree was set aside, and the Subordinate Judge was directed to take up the case from the stage at which the compromise was filed.

Defendant''s attempt to appeal to the Privy Council against this order failed, and the learned Subordinate Judge took up the matter under Order 23, Rule 3, Civil P.C. The parties seem to have contested up to this Court almost every important order of the learned Subordinate Judge. The defendant put in a formal application praying that the compromise embodied in the petition be recorded. To this the plaintiff raised objections both of law and fact, the details whereof will be dealt with later. The learned Subordinate Judge has however held against the plaintiff on almost every point and has directed the compromise to be recorded and a decree to be prepared on its basis. It is against this order that the present appeal has been preferred. No costs have been allowed to the defendants, and on this and on some other matters there is a cross-objection on their behalf.

The questions involved in the present appeal are whether the petition of compromise contained terms which were agreed upon by the plaintiff, and whether the compromise is lawful and fit to be recorded. These simple questions have become complicated as every little incident leading up to the presentation of the petition has been hotly controverted by the parties and a mass of evidence has been adduced in support of their respective versions and the plaintiff has raised all legal objections which could have been raised against the recording of the compromise. In order to appreciate the controversy between the parties it is necessary to have a general view of their respective cases which the compromise purported to settle.

Let us start with the plaint which, as we have said, was filed on 6th April 1920. Mr. Savi was defendant 1; he was the executor under the probated will of the deceased, dated 10th May 1913. He is now dead and is represented by his daughter and widow, Raj Mohan Thakur the oldest nephew since dead was defendant 2. Suraj Mohan Thakur (now defendant 2) was originally defendant 3. He is now the only contesting defendant and is the principal respondent in the present appeal. He was sued under the guardianship of his sister. He came of age in February preceding the compromise; and according to him, negotiations and settlements for the compromise were carried on by him.

Naresh Mohan Thakur, another nephew of the deceased and a full brother of defendant 2, was defendant 4 and is now defendant 3; while the present defendant 4 is one Debi Prasad Marwari, who as a trustee of the estate of the nephews of the deceased, was along with the guardian of the minors a transferee (lessee) from the executor of the estate. Defendant 5 is one Mt. Bati Jan said to be a mistress of the deceased. She is a legatee under the probated will. Another defendant Mt. Hardutti Sethani, wife of Debi Prasad Marwari, was subsequently added as a transferee of a Calcutta house from Mr. Savi. The plaint has four Schedules. Schedule A gives details of the estate of which the plaintiff claimed to be a coparcener with her husband. One of the items in it is a life policy of the deceased. Schedule B sets out the debuttar properties of which the deceased was the shebait. Schedule C comprises properties in which it was said the deceased had no share and which were claimed by the plaintiff as belonging to her exclusively, and Schedule D mentions the moveable properties required by the plaintiff for her personal use.

The plaint first of all recited the relationship of the parties and then proceeded that after the death of Ugra Mohan Thakur troubles arose about the performance of his sradh ceremonies. Objections were raised on account of the deceased having been outcasted. The plaintiff was therefore compelled to go to Gaya for the performance of the sradh. During her absence Mr. Savi with the help of the servants of the estate of defendant 2 broke open the residential house (Ganga Nivas), forced open the receptacles and removed and destroyed the papers.

The plaintiff then gave the story of the litigation about the two wills described above and characterized the probated will propounded by Mr. Savi as a forgery and asserted that the probate was obtained by fraud. The fraud alleged was that Tajeshwar Jha and Kishore Jha who were looking after the probate case on her behalf colluded with the defendant and deserted her and did not either look after the case or give proper instructions to the lawyers. She contended that even if the said will was genuine, from what happened since then it had been revoked. It could not under the Mithila School of Hindu law, which governed the parties, affect the ancestral properties mentioned in Schedule A.

As we nave said, among the properties mentioned in that Schedule A is a life-policy of Rs. 10,225 which according to the plaintiff could not form part of the estate of the deceased, and therefore the will had no operation on it. The plaint further said that the deceased was a shebait of the debuttar properties mentioned in Schedule B to the plaint, out of which some {Nos. 7 to 9) were dedicated by Madan Mohan Thakur, an ancestor of the deceased, and others (Nos. 1 to 6) by the deceased himself for the worship of the family deity and for other charitable and religious purposes. These endowed properties being dedicated to the deities could not be dealt with by the deceased by the will which could not have any effect on them.

The plaintiff then averred that the properties mentioned in Schedule C ware her personal properties and therefore could not be affected by the will. Various allegations were made against the executor, and it was said that ha had leased out the main estate to defendants 5 and 6 for a grossly inadequate consideration and those and other transfers made by him in favour of some of the defendants were repudiated. On these facts the plaintiff sought the following reliefs: (b) A declaration that she was entitled to the properties mentioned in Schedule A by survivorship according to the special law and custom of inheritance, even if the will be held to be genuine and not revoked. (c) A declaration that the transfers of properties of the estate in favour of defendants 5, 6 and 7 ware inoperative against the plaintiff. (d) That she be given possession of the estate, the debuttar and personal properties with mesna profits.

The plaintiff further asked that in case she be held not to be entitled to the estate, she be granted: (e) A suitable maintenance (she estimated it at one-third of the income of the estate) for life and due provision in the decree for regular payment of this maintenance by the appointment o� a receiver or otherwise; (f) A decree for arrears of maintenance allowance; (g) An order that Rs. 1,000 or such suitable sum as the Court thinks fit to be paid annually for the sradh of the deceased; (h) A declaration that, she was entitled to reside in the Anand Garh Palace (the chief palace of the estate) and a decree for Rs. 14,625 with Rs. 6,700 as interest for her being deprived of a residence after the death of her husband, on account o� her having been turned out from the deceased''s Calcutta house where she bad been residing.

The house was sold to defendant Hurdutti; (i) A decree for moveables mentioned in Schedule D or its equivalent value; (j) In any event a declaration in her favour for the life-policy of her husband valued at Rs. 10,225 and Rs. 7,200 its interest; (k) A decree in her favour for the properties mentioned in Schedule B as their shebait and trustee; (1) A decree for the personal properties mentioned in Schedule C to the plaint; (m) In case the properties mentioned in Schs. B and C be held to be the part of the estate, then a decree in her favour on the ground of survivorship, custom or law of inheritance; (n) A decree for future and past maintenance to be a charge upon the estate. The decree be so framed that the charge be enforceable by sale in execution of the decree; (o) Appointment of a receiver pendente lite; (p) Provision for a residence and a suitable maintenance pendente lite; (q) Other general reliefs and costs.

The chief defence to the suit was on behalf of Mr. Savi and defendant 2 (Suraj Mohan Thakur), their defence being almost the same. They asserted the genuineness and validity of the will and urged that the plaintiff was precluded from questioning it and denied the special right of the widow under the Mithila School of Hindu Law, raised a special plea about some of the properties claimed by the plaintiff as her personal ones, asserted that the transfers were just and proper and repudiated the charge of mismanagement against Mr. Savi. They detailed the story of the litigation in connexion with the two wills stated above, and disputed the plaintiff''s claim to succeed to the shebaitship of the endowed properties.

They controverted the value of the properties left by the deceased as given in the plaint. While the plaintiff estimated the estate to be valued at rupees twenty-six lakhs with an income of Rs. 1,30,000, the defendants asserted that it was valued at Rs. 14,16,174-6-0 subject to a debt of Rs. 5,50,000, to which was added Rupees 1,60,000 spent on the litigation. The debt up to the time of the filing of the written statement was to the tune of Rs. 4,89,259. They asserted that under the circumstances the plaintiff was not entitled to a maintenance of one-third of the income of the estate. They further said that they made an offer to the plaintiff to reside at Ganga Nivas, but on the advice of her cousin Ram Krishna Jha she refused and had been unnecessarily prosecuting the litigation. They further said that the costs of the performance of the annual sradh which the plaintiff had put at Rs. 1,000 was too high and that a sum of Rs. 25 was sufficient. They further said that though there was no direction in the will about any particular house for the plaintiff''s residence, they were ready to allow her to reside at Ganga Nivas and that her claim to reside at Anand Garh Palace was unjustified and unreasonable.

These were the respective cases of the parties on which the suit was proceeding to trial. We have said that the suit was instituted on 6th April 1920, and had been pending for more than four years when the petition of compromise in dispute was handed over to the Subordinate Judge. It is desirable at this state to give in brief the circumstances leading to the filing of the compromise petition. We will avoid at present mentioning, facts which are disputed and will confine ourselves to those that are admitted or practically admitted.

After the death of her husband the plaintiff ceased residing at Bhagalpur. It is admitted that Mr. Savi did not allow her to reside at Anand Garh Palace; according to him she was permitted to reside at Ganga Nivas. Whatever may be the cause, she left Bhagalpur and went to reside at Calcutta at No. 31, Alimuddin Street. This house which belonged to the deceased was after his death sold by Mr. Savi to Hardutti, wife of Debi Prasad Marwari, who took steps to turn her out from there. Since then the plaintiff had been residing either at Darbhanga where her cousin Ram Krishna Jha, an Advocate of this Court, was then living and practising, or at places of pilgrimage, such as Allahabad and Benares.

In the middle of October 1924, the lady came to Simaria Ghat for the Kartik Ganges bath and was there admittedly till 15th November 1924. Defendant 2 Suraj Mohan Thakur had attained majority few months before (in February 1924). On the evening of 15th November Suraj Mohan went there and met the plaintiff. Whether he went on invitation from the lady as alleged by the defendants or paid a surprise visit to her without the lady knowing anything about it from before are matters in dispute and will be dealt with later on. Be that as it may, it is an admitted fact that Suraj Mohan had attained majority a few months before, and the lady met him after many years, and the terms of a compromise or at least the main terms were settled between them on that occasion.

What the terms were is another question. The terms, whatever they might have been, having been settled (it is also an admitted fact) the lady wanted to see her cousin Ram Krishna Jha who had all along been, looking after her case and helping and financing her. Ram Krishna Jha was sent for but was reported not to be at Darbhanga. Thereupon the lady came to Monghyr and was lodged in the house of one Baiju Mandal, the then Sharistadar of the civil Court of Monghyr. This was on 17th November 1924. Various-persons were consulted at Monghyr Ram Krishna Jha also arrived.

The details of what happened at Monghyr between 17th and 25th of that month when the petition was actually handed over to the Subordinate Judge are again a matter in which the versions of the parties are at variance, and need not be entered into at this stage. Suffice it to say that according to the defendant the lady wanted to go beyond those terms and demanded more concessions which were conceded and a draft according to the terms settled was prepared.

There was some difficulty about obtaining the consent of Mr. Savi who was then at Bhagalpur.

Meanwhile the lady left the place where she was putting up and came to the railway station and stopped in the waiting-room, waiting for the train to go to Darbhanga. By that time a fair-copied petition was brought, the defendants signed it and the lady''s signature was obtained on it and it was handed over to the Subordinate Judge who happened to be at the railway station platform. Ram Krishna Jha was admittedly present on the occasion and Rs. 20,000 was paid by the defendants either to the lady or to Ram Krishna Jha at the instance of the lady.

This sum, the lady says, Ram Krishna. Jha had agreed to accept in satisfaction of the money he had advanced for the litigation. The petition of compromise having thus been handed over to the Subordinate Judge, the lady was brought to Bhagalpur where she lived with Suraj Mohan in the Anand Garh Palace and remained there for some time till she left the place for Allahabad to perform the annual sradh of her husband. According to her statement it was at Allahabad that she leaned for the first time that the terms embodied in the petition of compromise were not those which she had agreed to.

She took steps, consulted her lawyers and ultimately on:

Terms of agreement as alleged by the plaintiff.

The plaintiff would remain the owner and in possession of the whole estate for life in lieu of her maintenance; but so long as the debts due from the estate were not paid, she would not get from the estate more than Rs. 1,000 per month for her personal expenses. The estate would however always remain in management of Mr. Savi and Suraj Mohan Thakur.

The wages of hor servants, medical charges, kitchen expenses and conveyance expenses would be met by the estate.

While at Bhagalpur she would occupy Anand Garh Palace and when out she would get Rs. 200 a month as allowance for house rent and Rs. 100 a month as allowance for conveyance.

She would get all her jewellery or their price and gardens claimed in the suit.

In order to enable her to pay her creditors she would get from the estate a sum of Rupees 1,20,000, out of which Rs. 20,000 would be paid at the time of the compromise to Ram Krishna Jha and the balance Rs. 1,00,000 would be paid to her in the course of two years, and in the meantime she would get its interest at 6 per cent per annum. This interest was to be paid to her for paying her creditors and also for expenses on charity.

Rs. 1,000 was to be spent every year for the annual sradh of the lady''s husband to be performed by her.

Some minor points about charities, ceremonies and costs, etc., not mentioned in detail in the application of the plaintiff filed u/s 151, Civil P.C.

It may be noted that though the petition of compromise provided for the payment of Rs. 17,000 in cash, in fact admittedly Rs. 20,000 was paid. According to the defendant this represented a sum of Rs. 17,000 provided in the petition of compromise out of Rs. 1,17,000 found due to the lady as arrears of her 7th April 1925, she filed the petition for setting aside the compromise decree.

We will now give in a tabular form the terms of the compromise which the lady says she agreed to and those mentioned in the petition of compromise (Exhibit A in this case). The translation of this petition in the paper-book was not quite accurate and we got a fresh one prepared by the official translator, copies of which were supplied to the parties and they have accepted this translation as correct.

We have used this translation.

Terms of agreement mentioned in the petition of compromise.

Plaintiff''s claim to the estate absolutely withdrawn. Plaintiff to get Rs. 1,000 a month for her maintenance from beginning of November 1924; the maintenance to be a charge on the estate of the deceased and to be payable on the 1st of every month.

No provision except a provision for conveyance in places of pilgrimage (mentioned below).

S. No provision for residence at Bhagalpur but the defendants were to arrange for her residence at the places of pilgrimage in a house costing a monthly rent between Rs. 100 and Rs. 200 and provision for a carriage and a horse.

No provision.

After allowing for the payments made to her, she was to get Rs. 1,17,000, of which Rupees 17,000, was to be paid in cash and the rest in six yearly instalments, the first four of which were to be of Rs. 5,000 each and the last two of Rs. 40,000 each. This amount was to carry interest at the rate of six per cent per annum to be payable by the estate. The interest was to be paid on 31st December each year and the amount of interest was to be spent by the plaintiff after consultation with defendant 2 over scholarship fund or some religious work.

No provision.

The only other provision is that the parties were to bear their own costs and that defendant 2 was always to look after the plaintiff and not to let her have any sort of inconvenience or discomfort and remain obedient to her.

maintenance and Rs. 3,000 as advance maintenance to be set off against future maintenance.

It has been contended by the appellant that the compromise cannot be recorded under Order 23, Rule 3 on the following grounds: (1) That the terms as mentioned in the petition of compromise (Ex. A) were not agreed to by the lady Savitri Thakurain and that the terms really agreed to were surreptitiously and fraudulently replaced by those given in Ex. A. (2) That even if the lady agreed to these terms, she being an illiterate Pardanashin lady did not fully understand them. They were not explained to her and she had no independent advice. Advantage was taken of her ignorance and position. (3) That the compromise is not lawful and its recording is barred under various provisions of law.

Some subsidiary points have also been urged. For instance, it is contended that an inquiry into the genuineness and lawfulness of the compromise is barred by res judicata. It has been argued that the order of this Court passed by Jwala Prasad and Bucknill, JJ., was in effect an order for the trial on the merits of the suit itself, and not for any inquiry into the facts or lawfulness of the compromise and further that the defendants had since waived their rights under the compromise. As a side issue questions of Mithila law have also been raised. It is contended that under that law which governs the parties, a wife is a coparcener with her husband with all the rights of a member of a joint family and can force a partition upon him and that a gift of an entire property by a man having a wife is illegal.

The bequest in favour of Suraj Mohan was therefore void, and the plaintiff''s suit in which this compromise is said to have taken place was so strong and the lady''s claim so indefeasible that it is unlikely that she would have consented to the terms which constitute (as it was put by Sir Sultan Ahmed) a confiscation of her estate. We are further asked to hold that in view of the position of the lady the terms are so unfair and unconscionable that in the exercise of the Court''s inherent powers we should refuse to record it. All these matters will be dealt with in their proper places. We will first take up the question whether the terms contained in Ex. A were agreed to by the lady and whether she signed it intelligently.

In order to decide this it is necessary that we should give in some detail the respective versions of the parties as to the circumstances under which the compromise was arrived at and as to what transpired since then which terminated in the lady filing the petition u/s 151, Civil P.C., repudiating it.

The lady''s story is that she had gone to Simaria Ghat, a place on the bank of the Ganges, for the annual Kartik asnan (bath in the Ganges in the month of Kartik) which lasts for full one month. The party which accompanied her consisted of Bidya Jha (her uncle), Pitamber Jha (son of Bidya Jha), Durga Nath and one Khajan Dai, some servants, peons and cook. This Durga Nath has been mentioned rather prominently in the case.

On the one hand he has married a sister of the plaintiff, and on the other he is remotely connected with Suraj Mohan, one of his grand-daughters (not through the plaintiff''s sister) having married one Madhu Kant Jha whose sister is the widow of Raj Mohan Thakur the elder brother of Suraj Mohan. There is no doubt that he was a trusted companion of the lady, but now he is said to have been in collusion with Suraj Mohan and to have been gained over to his side through Madhu Kant Jha, his grand son-in-law. The party was putting up in temporary huts of straw constructed on the bank of the river. The asnan (bath) was to last till 15th November 1924. The lady''s story is that she made preparations for leaving the place that day and going to Laheriaserai (Darbhanga) where she had been previously residing. Durga Nath asked her to stay there that day as the Sankrant, which ends the period of the bath, would last till the following night.

She accepted this advice. In the evening Suraj Mohan accompanied by the said Madhu Kant Jha and others reached Simaria Ghat unexpectedly. The lady''s case is that Durga Nath, who was in conspiracy with Suraj Mohan had been expecting him and on the pretence of the Sankrant lasting till the following night detained her at Simaria Ghat. We have however ascertained by reference to the almanac that the Sankrant did last till the following night, Be that as it may, as we have said, Suraj Mohan and his party came to Simaria. Ghat. The boy fell at her feet and implored her to settle the suit. The plaintiff says that as she saw Suraj Mohan after a long time and he had become a grown up lad, she was affectionately drawn towards him and the terms alleged by her were settled. As it was however necessary to consult Mr. Ram Krishna Jha, Durga Nath was sent next morning to fetch him from Darbhanga. The former returned on the 17th with news that the latter was not there.

It was then thought that he might have gone to Monghyr to look after the suit which was fixed for 21st November 1924. It was therefore agreed that all should go to Monghyr. The lady says that she was made to understand that she would be lodged at Monghyr in the Dharamshala of Baijnath Goenka.

The party left Simaria Ghat on the evening of the 17th and reached Monghyr somewhere about midnight and went to the house of Babu Baiju Mandal, then Sharistadar of the Judge''s Court of Monghyr and inhabitant of Barari in Bhagalpur from where the parties come. The lady alleges that she took the house to be a Dharamshala, and that it was only two days later that she realised having been kept in the house of Baiju Mandal. She makes it a grievance that she was taken to this house at all. Her case is that Baiju Mandal was in collusion with Suraj Mohan, and that the latter with a design put her up in that house so that she might not be free to do what she liked and get to know the effect and terms of the compromise.

We ought to have mentioned that before the party reached Monghyr one Chandra Nand Missir was sent from the way to fetch Ram Krishna Jha from Patna where he was expected to be in connection with the proceedings in the High Court about the trial of issues 6, etc. Chandra Nand Missir returned to Monghyr on the 18th and brought a message that Ram Krishna Jha refused to come. The lady then asked Madhu Kant Jha to send a wire to Ram Krishna Jha. The next day (19th) Khan Bahadur Sayeed-ud-din, Government Pleader, who wss appearing for her in the suit, was brought to the verandah of the house she was occupying, and finding her surrounded by her adversaries told her to send her man to him with instructions about the terms of the compromise.

Durga Nath was sent, and he assured the lady that the draft was being prepared by Maulavi Sayeed-ud-din. Thereafter Suraj Mohan assured her that he would do all that was needful in connection with the preparation of the draft of the petition of compromise. A draft was prepared and she was assured by Durga Nath that it was done by Maulavi Sayeed-ud-din and approved by her Patna lawyers and that it contained all the terms that she said had been settled at Simaria Ghat. It is admitted that one Bodh Krishna Jha, a full brother of Mr. Ram Krishna Jha, came to Monghyr on request on the 20th. Ram Bahadur, a clerk of Mr. Ram Krishna Jha, also came to Monghyr.

There is however some difference about the date of his arrival. According to the defendant he also came on the 20th, but according to the plaintiff''s case he came on the morning of the 21st. These two persons however according to themselves and the lady, took no part in the transaction and were simply watching events from a distance. Though they sent three telegrams to Mr. Ram Krishna Jha at Laheriaserai about the compromise he did not come. Later on, Ram Krishna Jha reached Monghyr on the 24th, saw the lady, but was annoyed and did not like to mix himself up with the compromise, or hear her explanations though he was willing to accept Rs. 20,000 in satisfaction of the money advanced by him for the litigation.

He stayed in the house for a few hours but had no talk, with her about the compromise. (The defendant puts the date of Ram Krishna Jha''s arrival as 23rd.) In the afternoon, of that day, that is 24th November, the lady was informed that Mr. Savi was not agreeable to the compromise. On this she wanted to leave the house. Suraj Mohan Thakur and Baiju Mandal however assured her that all would be done to complete the transaction.

On the next day (25th November) the lady having become disgusted with the delay and being in a disturbed state of mind, unceremoniously left the house She felt difficulty in getting a conveyance and came out into the street when Durga Nath brought a carriage, and she drove to the railway station with a view to go to Darbhanga.

There at about 3 p.m. the petition of compromise fair-copied was brought to her and she having been assured that the terms mentioned therein were those settled at Simaria Ghat (as alleged by her) signed it on the word for word and letter-for-letter dictation of Suraj Mohan Thakur. She could not personally satisfy herself as to the correctness of this assurance as she was perplexed, and there was a large number of persons in or about the place. As arranged, Rs. 20,000 was paid to Ram Krishna Jha. Thereafter she heard somebody reading something from outside which she could not follow. Later on somebody said that he was the Hakim (Presiding Officer of the Court) and asked her if she had compromised and she answered "ji" (yes). After a few hours she was taken by Suraj Mohan to Bhagalpur and lodged at Anand Garh. From there once she went for Koshi bath. It is admitted that she was well treated there and the wives of her nephews were all attention to her.

In the middle of January 1925, she left for Allahabad to perform the annual sradh of her husband, which was due on 27th January 1925, and also for kalpbas on the banks of the sacred rivers. A servant of Suraj Mohan went ahead to arrange for the huts, and Suraj Mohan himself accompanied her. After a few days he returned and as asked by her sent Rs. 1,000 for the annual sradh of her husband. This money was sent through one Balbhadra Thakur (D.W. 2), servant of Suraj Mohan.

Then she learnt for the first time from Balbhadra that the terms of the compromise as embodied in the petition filed in Court were not according to what was settled at Simaria Ghat and that there was no provision in that petition for the payment of Rs. 1,000 for the sradh of her husband and that Suraj Mohan, and not the plaintiff, was made the owner of the estate. She was taken by surprise and sent for Dharam Narayan Chaudhury who had sometimes looked after her cases and who happened to be there at that time. She sent him to bring Ram Krishna Jha. The latter went to Allahabad with much difficulty on the persuasion of Mr. Murari Prasad, an Advocate of this Court and a witness in this case, who had worked in her cases. Ram Krishna Jha refused to help her and advised her to approach Babu Murari Prasad and Khan Bahadur Maulvi Sayeeduddin.

Dharam Narain also expressed his inability to do anything for her. The lady came to Benares on 15th February. There she learnt that Babu Murari Prasad was there, sent for him on 19th March 1925, and related to him all that had happened. At first he also was unwilling to help her, but ultimately agreed. On her instructions the petition u/s 151, Civil P.C., was prepared and filed before the Subordinate Judge of Monghyr. It is to be noted that the petition was signed by the lady on 2nd April, the affidavit in its support being sworn at Benares on the same day, the certificate by Mr. Murari Prasad was granted on 5th April; and the petition was filed in Court on 7th April 1925. This, in short, is the main story of the plaintiff about the compromise from the time when it was settled at Simaria Ghat up to the time when petition of revocation u/s 15.1 was filed.

It is necessary that we should mention here the connexion of Mr. Ram Krishna Jha with this case, as his name has been very prominently mentioned throughout. We have said that he is an advocate of this Court, was practising in the Darbhanga Courts and removed his practice here in about January or February 1925, and is the first cousin of the plaintiff, their fathers being full brothers. He reached Barari immediately on the death of Ugra Mohan Thakur, interested himself in the lady''s affairs, helped her in performing the sradh of the deceased about which some difficulty was raised by his castemen, and accompanied her to Gaya where she went for this purpose. He was a witness before the Original Side of the Calcutta High Court in the case of the will propounded by the lady. He was admittedly financing the lady in her litigation and was in charge of her cases. He came to Monghyr at least on the 24th, was present at the railway station at any rate to receive Rs. 20,000 in satisfaction of his dues.

His absence from the witness-box in this case has been the subject-matter of criticism by the defendant. Though one would find from the petition u/s 151, Civil P.C., that he washed his hands of this case, was not willing to help the lady any more and had refused to do anything with the compromise, he conducted this case before the learned Subordinate Judge. Later on we shall have to comment upon the non-production of this gentleman and also of Khan Bahadur Maulvi Sayeeduddin.

We now turn to the version of the incidents leading to the compromise and of subsequent events as alleged by Suraj Mohan Thakur. His case as disclosed in his petition of objection and evidence adduced is this: When Suraj Mohan was about to attain his majority, Bodh Krishna Jha, full brother of Ram Krishna Jha, came to him on about 28th December 1923, and suggested that if a suitable maintenance be agreed to for the lady, the litigation might be brought to an end. Suraj Mohan expressed his inability to do anything till he attained majority. He became major on 1st February 1924, and the fact was noted in the record of the case on the 5th of that month.

Bodh Krishna Jha again came to him on or about 30th March 1924, and suggested that a personal meeting between Suraj Mohan and the lady might smooth matters and finish the litigation. Suraj Mohan Thakur refused to go to Darbhanga where the lady was at the time, as his elder brother Raj Mohan Thakur (since dead) was not well received by Mr. Ram Krishna Jha. He however agreed to see the lady at Benares or at some other place of pilgrimage where the lady used to go. On or about 9th October 1924, Bodh Krishna Jha went to him for the third time and informed him that the lady was about to go to Simaria Ghat for Kartik asnan and that would be a suitable place for the interview. On or about 16th October 1924, Durga Nath came to him and informed him of the lady''s arrival at Simaria Ghat and requested him to see her during her stay there. Later, on 12th"November, Madhu Kant Jha (brother of Raj Mohan Thakur''s widow and the grand son-in-law of Durga Nath referred to above), who had gone to Simaria Ghat to see his father-in-law, Tek Nath Jha''s mother in connexion with the ''rukhsati'' of his wife, brought a message purporting to be from the lady that she was willing to compromise the suit if she would get a maintenance allowance of Rs. 1,000 per month. Suraj Mohan thereupon sent a letter to the plaintiff informing her of his arrival at Simaria Ghat on 15th November.

He went there and the terms were settled. They were that the lady would get maintenance of Rs. 1,000 per month from the date of her husband''s death.

The arrears after deducting the payments made were to remain in permanent deposit with the estate and the lady was to get 6 per cent per annum interest thereon which would be spent on some charities as determined by her and Suraj Mohan Thakur. It will be noticed that according to the defendant''s version, in the terms settled at Simaria Ghat, there was no mention of any cash payment of the arrears of maintenance. Rather the arrangement was that they would never be paid in cash, and the plaintiff would only get the interest to be spent on some charities as settled between the parties.

There was also according to him, at that time no mention of any house rent or conveyance. The terms having been settled, Durga Nath was sent to Darbhanga to fetch Mr. Ram Krishna Jha. He was not found there, and Durga Nath came back. The party then left Simaria Ghat in the evening of the 17th. Suraj Mohan sent a wire to Monghyr asking Babu Baiju Mandal, sharistadar of the Judge''s Court to arrange for a house. The telegram was not received by him till the following morning (18th November). The party therefore went from the railway station where they reached at about midnight to the house of the said Baiju Mandal and had to accommodate themselves there for the night. Next day there was some talk of the change of the house but as the lady felt quite comfortable there it was not done. Suraj Mohan repudiates the suggestion that the lady was lodged in the house of Babu Baiju Mandal with a design and that she believed that house to be the Dharamshala of Baijnath Goenka. On 19th November, Maulvi Sayeeduddin, the vakil for the plaintiff, and Babu Bhairo Prasad, the vakil for the defendant, were sent for.

The former explained to the lady the scope of her suit. The lady informed him of the terms of compromise. Maulvi Sayeeduddin asked her to communicate to him her wishes through her own servants. A remuneration of Rs. 100 was paid to Maulvi Sayeeduddin by the defendant at the instance of the plaintiff. On 20th November Bodh Krishna Jha on being sent for came to Monghyr. Ram Bahadur Singh also came on that very day and the two together began arranging for a draft of the petition of compromise. At this stage the plaintiff wanted some additional terms. They were: (1) house rent not exceeding Rs. 200 per month; (2) a conveyance for going to places of pilgrimage; (3) Rupees 17,000 out of the maintenance allowance to be paid in cash and the balance to be actually paid in instalments, and, (4) the costs of previous litigation to be borne by each party. Suraj Mohan at first objected to these terms, but as the lady insisted he yielded. Drafts were then prepared (according to the information of Suraj Mohan) by or in consultation with Maulvi Sayeeduddin. It was then approved of by Babu Bhairo Prasad, pleader for Savi, in the presence of Babu Hito Rai, another pleader for the plaintiff.

A copy of it was handed over to Balbhadra Thakur, a servant of the defendant to be shown to Mr. Savi. This copy has been filed in the proceedings as Annexure B to the objection of Suraj Mohan (Ex. F). On the 21st this copy was taken by Balbhadra to Mr. Savi, who was supposed to be at Bhagalpur. Balbhadra could not meet him as he had gone to Godda. Balbhadra returned to Monghyr on the 22nd. It was then arranged that Balbhadra and Bodh Krishna Jha both should go to Godda and with this view they went to Bhagalpur that very day (22nd). By that time Mr. Savi had come back to Bhagalpur. The draft was read over to him on the 23rd and he was asked to go to Monghyr. Mr. Savi could not come at once as he had some important work at Bhagalpur but promised to do so the next day, that is on the 24th.

Thereupon Balbhadra and Bodh Krishna Jha returned to Monghyr in the evening. In the meantime Ram Krishna Jha had arrived at Monghyr. It is to be noted hero, as we have already said, that according to the plaintiff Ram Krishna Jha came to Monghyr on the 24th and according to Suraj Mohan came there on the 23rd. The defendant''s version is that he put up in the same house where the lady was staying. This is denied by the plaintiff. Suraj Mohan asserts that Ram Krishna Jha saw the plaintiff and had a full talk with her, and that the draft already prepared was made over to him by his clerk Ram Bahadur and read out by him to the plaintiff and he believes that he showed it to Maulvi Sayeed-ud-din and Hito Rai.

On the 24th Mr. Savi came to Monghyr and expressed his inability to agree to, the payment of a maintenance of Rs. 1,000 a month as he thought that with the income of the estate he could not pay more than Rs. 500.

He went, back to Bhagalpur and came again on the 25th and ultimately consented to sign the petition of compromise if a clause exempting him from personal liability in this respect were added to it. A fresh clause to this effect was written on a separate piece of paper When Suraj Mohan with this piece of paper came to the house of Babu Baiju, Mandal where the plaintiff was staying, he learnt that the plaintiff had abruptly left the house and had gone to the railway station. He went there and informed her what Mr. Savi had agreed to accept. She agreed to exempt him. Thereafter Suraj Mohan returned to the house of Rai Bahadur Lakshmi Prasad. Sinha where Mr. Savi was staying and where the draft was fair copied by one Mahendra Narain Singh on the dictation of Bodh Krishna Jha and then taken to the railway station for that signature of the lady. The whole petition was read by her and also read over and explained to her by Ram Krishna Jha, and then she signed it after Rs. 20,000 was paid to her. This Rs. 20,000 consisted of Rs. 17,000 out of Rs. 1,17,000. the arrears of maintenance found due, up to October 1924, and Rs. 3,000 advance payment for the months of November and December 1924 and January 1925. The petition was then handed over to the Subordinate Judge who happened to be there and who again got it read over to the lady by Baiju Mandal and she admitted to him the due execution of it.

The Subordinate Judge finding that each page of the petition was not signed by the parties asked them to do so, and this was done.

As it was understood that after the compromise, whenever the lady would not live at a place of pilgrimage, she would live at Anandgarh with the family of Suraj Mohan and his brother, the whole party came to Bhagalpur and the lady lived there with the family peacefully till she left for Allahabad on 10th. January 1925. In the interval she had gone to Kursaila and Kataria for Kosi bath. The evidence is that during the lady''s stay at Anandgarh she met several persons and told them the fact of the compromise and that she had agreed to take maintenance only.

It is alleged on behalf of Suraj Mohan Thakur that during the lady''s stay at Bhagalpur Bodh Krishna Jha came and stayed with her twice and Ram Krishna Jha also came to Bhagalpur and visited her during the Christmas holidays of 1924. Though the latter stayed with his father-in-law ho came and saw the lady daily. When the lady went to Allahabad Suraj Mohan accompanied her and after seeing that she was settled down came away and sent back Balbhadra to look after her. Suraj Mohan Thakur denies that Rs 1,000 was sent to the lady for the performance of her husband''s sradh, as this was not stipulated for and under the Hindu law she was not entitled to perform the Sradh. Rs. 1,500 was paid to her out of her maintenance allowance to meet the expenses of her "kalpbas" at Allahabad. The defendant further says that during her stay at Bhagalpur a sum of Rs. 3,306-12-0 was spent over her and that that was also an advance towards her maintenance allowance.

From Allahabad she began dismissing the servants of Suraj Mohan who had gone with her till none was left. These are the respective versions of the parties. We have stated them in some detail as their proper appreciation will be useful in weighing the conflicting evidence adduced by the parties.

The first controversy is as to the circumstances under which Suraj Mohan went to Simaria Ghat. On the one hand his case is that he was invited there to settle the terms of compromise on the other the lady emphatically denies any such invitation, and asserts that Suraj Mohan Thakur paid her a surprise visit as arranged between him and Durga Nath, the latter being in collusion with the former.

In our opinion this controversy is of no great importance. It is admitted that Suraj Mohan went to Simaria Ghat, met the lady, and a compromise was settled. Whether he went of his own accord or on invitation is not of much consequence. The only bearing this question has is as to who was anxious for the compromise. Anxiety for a compromise by a party does not show the weakness of his case or suggest that he would compromise on any terms however harmful they may be to him. Prima facie both versions are equally probable.

Assuming that there was no invitation by the lady, there would be nothing extraordinary if Suraj Mohan, having learnt of the lady''s presence at Simaria Ghat, went there to make an attempt to settle a dispute which was apparently ruining the estate. Suraj Mohan was not then even 19 years old. He attained majority on 1st February 1924, and there being no guardian appointed by the Court, he did so at the age of 18 years. During his minority he must have been painfully watching the course of this expensive and ruinous litigation between himself and the wife of his uncle and benefactor.

The estate was highly encumbered, as will appear later. A large instalment was being paid to the Maharajadhiraja of Darbhanga towards the liquidation of his mortgage decree against the estate. This young lad must have been feeling grateful to the memory of his uncle who had left him his estate; he must have felt it a pity that his widow was practically living in exile, passing her days either at Darbhanga or at some places of pilgrimage. He was separated from the one whom it was his duty to serve.

The estate he got from his uncle was being wasted to no purpose. There would be nothing surprising if, realizing these things, he thought of meeting the lady at a place where she would be away from hostile influences and persuading her to compromise. On the other hand, one can well imagine that the lady had become tired of this litigation which had already lasted ten long years. Till then she had derived no benefit out of it. She had miserably lost the two will cases. Her financiers and helpers must have been feeling despondent and reluctant to advance money freely. She was getting an allowance of Rs. 150 with an additional sum of Rs. 50 for house rent. This was no more than sufficient to meet her numerous expenses.

There are indications on record that at that time she was not quite pleased with Mr. Ram Krishna Jha. What is extraordinary if in that mood she sought an interview with her nephew for a face to face talk with a view to end the litigation? It may also be that Durga Nath and Bodh Krishna Jha, realizing the effects of this ruinous litigation, in the interests of the lady herself, either at her instance or of their own, approached Suraj Mohan and suggested to him an interview with the lady. Well-wishers of a family generally intervene in such matters and if the feeling between the fighting parties be bitter they try to smooth matters over by suggesting moderation to both of them. Every body connected with the lady could not have been for the suit to continue. A lady of a respectable family was bitterly fighting with the nephew of her husband, was deposing in Courts and was being disbelieved.

Such a state of things could not have been pleasing to these who were her friends, and they might not improbably have arranged to have a meeting between the aunt and the nephew. The lady has admitted in her evidence that her uncle Bidya Jha and others were advising her to compromise.

Let us now examine the evidence on this point. (After discussing some evidence the judgment proceeded). The refusal to accept Rs. 1,000 per month said to have been made by the lady in May 1924, requires rather closer examination. We have said before that while the suit was pending before the Subordinate Judge of Monghyr, this Court was moved on various occasions by one party or the other against various interlocutory orders passed by that Court. One of them was Civil Revision No. 432 of 1923. It was taken up by Das and Ross, JJ., on 1st April 1924, but was adjourned to 7th ot May to enable the parties to compromise. On that date it was again adjourned to 16th of May.

It was ultimately heard on 21st and 22nd of that month, and judgment was pronounced on 4th June. It is alleged that during the course of the hearing on the 21st or 22nd May the learned Judges suggested that the amount of maintenance should be referred to arbitration, intimating that Rs. 1,000 per month, all arrears and a residence either in Anandgarh or Ganganivas, would be allowed to her. It is alleged that this incident took place in the presence of Mr. Jayaswal and Mr. Murari Prasad, Advocates for the lady, and that Mr. Murari Prasad conveyed this message to the lady, but that she refused this offer and wanted that her claim to the estate should also be referred to the arbitrators and considered by them.

Mr. Jayaswal also, it is said, sent a letter to this effect, to Mr. Ram Krishna Jha. An attempt was made to prove through Mr. Murari Prasad this alleged letter of Mr. Jayaswal to Mr. Ram Krishna Jha. The learned Subordinate Judge rightly disallowed this. The letter contained nothing but a statement of Mr. Jayaswal as to what according to him transpired before the learned Judges in this Court. If Mr. Murari Prasad was himself a witness, as he says he was, of what transpired on the occasion he could depose for himself and he has done so; or, if Mr. Jayaswal was a witness of it, he ought to have been examined.

If on the other hand, Mr. Murari Prasad wanted to refresh his memory, the facts which entitled him to do so ought to have been first elicited from him, namely that he had no clear independent recollection but wanted to refresh his memory by seeing the letter and that the letter was written in his presence at about the time when the incident took place and that he had read that letter at that time and found the contents to be correct. Nothing of this sort was done, and as we have said the learned Subordinate Judge rightly refused to take that letter into evidence. On 14th April 1932, in the course of his argument, Sir Sultan Ahmad moved us by a petition to admit that letter in evidence. We rejected the application and intimated that we would give our reasons in the judgment of the case. Mr. Jayaswal, the writer of the letter, being available, his statement in the letter can in no circumstances be admitted in evidence.

Later on the 25th of April another application was filed asking us to examine Mr. Jayaswal as a Court witness under Order 16, Rule 14, Civil P.C. We refused that application also and promised to give our reasons in our judgment. We agree in the observations of Beaman, J., in the case of R.D. Sethna Vs. Mirza Mahomed Shirazi (No. 3), . In that case an application was made by the defendant to examin Mr. Wadia, an advocate appearing in that case. The learned Judge said:

Here there is an additional reason why I, think it would be improper to have Mr. Wadia''s evidence. He has been present in Court throughout, conducting as junior counsel his client''s case with the utmost vigour and diligence. The point to which this evidence is directed is clearly definite. Mr. Wadia heard Davar J.''s account of the transaction, and he knows perfectly well every detail which counsel expected to elicit from him .... Counsel for the plaintiff might reasonably say that Mr. Wadia had undue facilities for concentrating his mind upon every point of importance and preparing himself to meet every attack that might be made in cross-examination.

In this case what transpired before Das and Ross, JJ., has to a very large extent been deposed to by Mr. Murari Prasad, has been commented upon by the learned Subordinate Judge and is disputed by the defendant. Taking the evidence of Mr. Jayaswal now would have placed the respondent in a very false position. We do not for a moment suggest that Mr. Jayaswal would not have spoken the truth, but then he would be deposing to an incident which took place eight years back and after the details had been discussed in two Courts.

The respondent would have been handicapped in cross-examining him and thus attacking his evidence which he was certainly entitled to do. Beaman J.''s observations were no doubt on other points dissented from in the Calcutta High Court in the case of Weston v. Peary Mohan Dass AIR 1914 Cal 396 but not the observation which we have referred to above. There is another reason why we refused to examine Mr. Jayaswal as a Court witness. The plaintiff had plenty of opportunity to do so. On 21st December 1926, she applied to examine Mr. Jayaswal on commission.

At first the prayer was granted, but later, on the objection of the defendant the Court ordered that it would examine him in Court when he appeared. Mr. Jayaswal was apparently appearing for the lady off and on in the suit. After that no step was taken to examine him. After the argument of the respondent on this topic was finished a third application was filed on 18th July 1932, asking us to examine Mr. Jayaswal as a witness on behalf of the lady. On the grounds stated above and bearing in mind the observations of their Lordships of the Judicial Committee on the principle of taking additional evidence we declined to do so.

A part from this the question of importance is not so much as to what transpired in Court, but whether the suggestion if it was at all made by the learned Judges was communicated to the lady and she refused it. The letter purports to have been addressed to Mr. Ram Krishna Jha who has not been examined and there was no proposal to examine him. Mr. Jayaswal was not a witness to this communication and refusal. His evidence would not have been of any value. Mr. Murari Prasad has been examined to prove this. Before coming to discuss his evidence we have to dispose of a grievance made by Sir Sultan Ahmed. An attempt was made to prove through Mr. Murari Prasad that the proposal to refer the case to arbitration and the suggestion of Rs. 1,000 as maintenance emanated from the learned Judges themselves.

The learned Subordinate Judge disallowed the question which was intended to elicit this and, in our opinion, he would have been well advised not to do so. The question was perfectly admissible and therefore for the purposes of this appeal, we will assume that Mr. Murari Prasad''s evidence was that the learned Judges themselves suggested that the matter be referred to arbitration, suggesting a maintenance of Rs. 1,000. The plaintiff''s case is not a bit improved by this. As we have said the question is whether the suggestion, whosoever''s this might have been, was conveyed to the lady and refused by her. (Mr. Murari Prasad''s evidence was discussed and it was held that his memory was at fault.) Now the question arises what were the terms which were settled between the parties, whether it was agreed that the lady would remain the proprietor of the estate till her life, that Suraj Mohan would manage it on her behalf and that till the debts were paid up she would get Rs. 1,000 per month and all her expenses but that thereafter she would get all the income of the estate, Suraj Mohan continuing to manage it; or whether the terms were that the lady gave up all her claims and contented herself with receiving a maintenance of Rs. 1,000 per month.

This is the main term. The rest are of minor importance; as, for instance, the term about house or conveyance or sradh and so forth, and except about the jewellery and gardens the difference in some of them is slight. The question resolves itself into the determination of the allegation of fraud made by the plaintiff against Suraj Mohan and his supporters. Is it true that Suraj Mohan originally agreed to terms as alleged by the plaintiff and then fraudulently put others into the petition of compromise and the plaintiff signed the petition on trust? It is true that the lady remained ignorant of the terms mentioned in the petition and for the first time came to know of them at Allahabad at the end of January of 1925? The petition (Ex. A) bears the lady''s signature. She admits having signed it. Her endorsement runs thus:

I have read over the contents of this petition and understood them. I have received Rs. 17,000 (seventeen thousand) in cash. It is correct. Srimati Savitri Thakurain. By my own pen.

She granted a receipt which is Ex. G. It says that she received from Suraj Mohan and Mr. Savithe sum of Rs. 3,000 on account of her allowance for November and December 1924 and January 1925, in terms of the compromise effected on 25th November 1924. The whole of this receipt is in the lady''s own handwriting. The execution of these two documents is admitted. In ordinary circumstances once the execution of a document is proved it is for the party who wants to avoid the consequences of it to prove that he executed it under circumstances which do not make it binding upon him. In this case the plaintiff alleges that she signed the petition without knowing its contents and that she did so in consequence of the fraud practised upon her.

It is a well-settled principle of law that those who allege fraud must prove it, and accordingly it would have been for the lady to prove acts and circumstances constituting the fraud under which she had signed these two documents. But it is contended that this is a case of a pardanashin lady, and as repeatedly laid down by the Privy Council it is for those who want to hold a pardanashin lady to the documents executed by her to show not the mere execution of the documents by her but also her intelligent execution of them. In other words, those who want to take advantage of a document executed by a pardanashin lady must prove that she knew its contents and executed it with full knowledge of its effects and consequences and that she had independent advice in the matter. We shall deal with this topic when we come to examine the applicability of the special rule about pardanashin ladies.

The defendants argue that this doctrine cannot in its entirety apply to this case. They also contend that they have discharged the onus if it was on them. The evidence in connexion with the settlement of terms and proper and intelligent execution of the document consists of what happened at (1) Simaria Ghat, (2) Monghyr (house of Babu Baiju Mandal), (3) Monghyr Railway Station and (4) Bhagalpur, and we shall also have to consider the incidents which happened at (5) Allahabad and (6) Benares and which relate to the subsequent conduct of the plaintiff.

We must state at once that there is practically no direct evidence about the terms of the compromise on behalf of the plaintiff, except the evidence of the lady herself. When asked about her witnesses to the terms of the compromise as settled at Simaria Ghat she said that there was nobody there excepting herself, Surja Mohan and the river Ganges. Later on a witness Rasdhari Kumar (P.W. 8) was produced to depose on this point. We shall deal with his evidence presently. But before we come to that, we have to make some general remarks. The line of attack taken by the plaintiff has been what may be called destructive, that is instead of producing good and sufficient evidence to prove the alleged terms, her main endeavour has been to attack the evidence of the defendant, and the whole contention of Sir Sultan Ahmad, who argued this part of the case before us, has been that the defendants have not been able to prove that the terms embodied in the petition were agreed to by the plaintiff and explained to her.

A new point about there being an honest mistake, which was neither taken in the petition nor discussed before the Court below, was advanced by Sir Sultan Ahmad. The argument was that the terms of the compromise as understood by the lady and the terms mentioned in the petition of compromise are so similar that while the plaintiff might have been under the impression that she was getting a life estate while Suraj Mohan was simply to manage it as long as she lived and that she would get maintenance only till the debts were not paid, Suraj Mohan might on the other hand have understood that the lady was giving up the estate.

A casual comparison of the terms of compromise as mentioned in the petition and as alleged by the plaintiff would have made it apparent to anyone that this argument was bound to be advanced. The terms alleged by the plaintiff were, it would appear, intentionally made to run so parallel to the terms mentioned in the petition as to leave scope for advancing an argument of misunderstanding. We will deal later with the point whether there was any room for any misunderstanding. At this stage we wish to take a general view of the story of fraud in changing the terms of compromise. (After discussing evidence the judgment proceeded).

84 We are perfectly certain that nobody would have embarked on a project to commit such a fraud without any intuition that the circumstances would come to help him and that the lady would be over-confident; Ram Krishna Jha, Bodh Krishna Jha and Ram Bahadur indifferent, the lawyers unprofessional, the Sharistadar corrupt and the Subordinate Judge credulous. According to the plaintiff all this happened and gave Suraj Mohan an opportunity to defraud her. Either the plaintiff''s version is false, as we will show it is, or we must give Suraj Mohan, then a lad of 18 years, or to his associates and companions, credit for having a prophetic vision of the future.

We now come to direct evidence about the terms of compromise. (After discussing evidence the judgment proceeded). Leaving aside Durga Nath, the plaintiff has withheld from the witness-box Ram Krishna Jha, Maulvi Sayeed-ud-din and Babu Hito Rai. The learned Subordinate Judge has commented upon the conduct of Mr. Ram Krishna Jha and Maulvi Sayeed-ud-din.

The explanation for not examining these witnesses was, as we have already observed, that they were required for working in the case. We have also made some reference to it while commenting upon the non-production of Maulvi Sayeed-ud-din. It was held in the case of D. Weston v. Peary Mohan Das AIR 1914 Cal 396 and Ghandreshwar Prasad Narain Singh v. Bisheshwar Pratap Narain Singh AIR 1927 Pat 61 that though it is undesirable that a lawyer should appear in a case in which he knows or has reason to believe that he would be an important witness, there is no harm in this giving evidence in a case in which he is appearing. The explanation therefore is unsatisfactory, and we agree with the learned Subordinate Judge that these two gentlemen ought not to have appeared in the case. Mr. Ram Krishna Jha however was more a party than an advocate. The plaintiff was his first cousin, and he had given her financial assistance in the case. If his interest in the case had the better of him than his duty as an advocate, one may perhaps regard him as a party at most and deal with him as such, but the position of Maulvi Sayeed-ud-din was different. In the application u/s 151, Civil P.C., it was clearly stated that the lady sent Durga Nath to Maulvi Sayeed-ud-din for the preparation of a draft of compromise, but later on she was informed that the draft was not settled by Maulvi Sayeed-ud-din.

This information, if there was any, could not have come in the last resort from anyone but Maulvi Sayeed-ud-din himself, He was, at any rate, the best person to know whether Durga Nath had got the draft settled by him or not. The point was also one of no small importance. This being the case, Maulvi Sayeed-ud-din should have at once realized that he was likely to be a very important witness in the case and ought therefore not to have agreed to work in it. It may be that he signed the petition without going through its contents and accepted the vakalatnama without fully knowing the allegations made therein, but later on in the objections filed by the defendants it was clearly mentioned that Maulvi Sayeed-ud-din came to the lady and explained to her the nature of her suit and that the lady mentioned to him the terms on which she had compromised and that afterwards drafts were prepared by Maulvi Sayeed-ud-din.

This on the face of it made Maulvi Sayeed-ud-din a very important witness in the case. If the allegation in the petition of objection was true that Maulvi Sayeed-ud-din explained to the lady the extent of her claims in the suit and that the lady told him the terms on which she had compromised, there was an end of the plaintiff''s case. Maulvi Sayeed-ud-din ought to have withdrawn from the case at least at that stage. This is not all. The defendants examined Babu Bhairo Prasad pleader and he definitely stated that Maulvi Sayeed-ud-din explained to the lady the extent of the suit and that the lady told him that she had compromised the suit on accepting Rs. 1,000 as maintenance.

A brother pleader of Maulvi Sayeed-ud-din''s thus deposed on oath as to a fact directly in contravention of the case set up by the plaintiff. Maulvi Sayeed-ud-din, if he was aware of the progress of the case as he must have been, ought at least at that stage to have refused to work in the case; but in spite of it we find that he continued working in the case and conducted the cross-examination of witnesses 6, 12 and 14. In our opinion, Maulvi Sayeed-ud-din would have been well advised if he had refused to work in the case and had not given the plaintiff a mere excuse for not examining him as a witness.

However as we have said on the authority of the two cases referred to above, the fact that Mr. Ram Krishna Jba and Maulvi Sayeed-ud-din were appearing in the case was no ground for not examining them as witnesses. The position of the unfortunate Babu Hito Rai is rather curious. He had signed the petition of compromise and was certainly present at the railway station. His authority was repudiated on the ground that the vakalatnama expressly took away from him the power of compromising the suit. This is worse than a half-truth.

It was apparently intended to convey that Babu Hito Rai was not authorized to compromise the suit but that some other pleader was so authorized. In fact however there was only one Vakalatnama in the case under which all the lawyers appearing in the case had authority to work, and this Vakalatnama gave all the pleaders power to act in the case with the exception that they were not authorized to compromise the suit or to refer it to arbitration. There was no distinction between Babu Hito Rai and Maulvi Sayeed-ud-din in this respect. Nor did Babu Hito Rai effect the compromise in the suit.

There is a world of difference between compromising a suit and signing a petition of compromise after the compromise is effected by a party himself and the petition is signed by him. We do not think that Babu Hito Rai by signing the petition of compromise when the compromise was arrived at by the lady herself and the petition was signed by her, did any improper act.

However, this was one of the grounds on which the compromise decree was successfully challenged before Jwala Prasad and Bucknill, JJ., and one of the grounds on which their Lordships set aside the compromise decree and ordered the compromise matter to be investigated was that the case was taken up on a date which was not fixed for its hearing and Babu Hito Rai, not being authorized to compromise the suit, was not authorized to consent to have the case taken up for disposal on a date not fixed in the case.

Their Lordships characterized this as a fraud upon the Court. We do not read in that judgment anything suggesting that the conduct of Babu Hito Rai was fraudulent; for the case of the plaintiff at that stage seems to have been that Babu Hito Rai had merely exceeded his authority. We are clearly of opinion that the signing of the petition of compromise by him was superfluous but not fraudulent as the petition was signed by the lady herself and admitted to be correct before the presiding officer of the Court. Having achieved her object in getting the decree set aside by throwing a little mud at Babu Hito Rai, the lady began taking work from him, and then at the time of the hearing of this case having more mud thrown at him. Suggestions were made during the cross-examination of Babu Bhairo Prasad and Babu Hem Chandra Bose that Babu Hito Rai was in collusion with the defendants.

The recklessness of this suggestion will be apparent from the fact that the ink of the judgment of the High Court was hardly dry when, after the plaintiff had succeeded in getting a reversal of the decree on the ground, amongst others, of want of authority of Babu Hito Rai and a side suggestion of improper conduct on his part, Babu Hito Rai was allowed to resume work for the plaintiff. The judgment of the High Court was pronounced on 8th June 1926. Exs. C series will show that Babu Hito Rai worked for the plaintiff on 27th July, 28th July, 4th August 1926, and 22nd March, 14th April, 30th April and 11th May 1927.

So within six weeks of her success in the High Court by suggesting want of authority and improper conduct on the part of Hito Rai, the plaintiff again showed her continued confidence in him by taking work from him as if nothing, had happened; and when the time came for the trial of this case, a suggestion was again thrown out that Babu Hito Rai was in collusion with the defendants as an excuse for not examining him in the case. One very seldom comes across a case in which charges of fraud, collusion and falsehood are so freely made against respectable persons without there being the least basis for any of them. In this case there is nothing but reckless accusations against others which on the slightest scrutiny of the record appear to be absolutely unfounded. We further find from the order sheet that Babu Hito Rai has been signing it on behalf of the plaintiff.

It is to be hoped that Babu Hito Rai was not aware of the fact that suggestions of his exceeding his authority and of his practising fraud were made against him by the plaintiff, for otherwise it is impossible to find any excuse for his working in the case afterwards, and I think the plaintiff practised a fraud upon this Court by suggesting that Babu Hito Rai was acting without authority. He was not alone in having no written authority to compromise, and he did not compromise the suit, and whatever he did in the suit seems to have been done with the consent of the plaintiff, or with implied, if not express, authority from her. In fact Mr. L.K. Jha, who argued the concluding stage of this appeal, expressly told us that she makes no charge of fraud or collusion against Babu Hito Rai at all. This makes one wonder how the charge or suggestion could ever have been properly made at all. It is also clear that if there be no imputation of fraud or collusion against Babu Hito Rai, his unquestionable participation in the incidents at the Monghyr railway station makes it impossible to believe that the appellant was helplessly defrauded.

Babu Hito Rai signed the petition, and he could not have done so unless he was satisfied that the lady agreed to the terms mentioned therein. However we can find no excuse for the plaintiff not examining Babu Hito Rai.

The compromise being over, the party left for Bhagalpur. According to the defendant Bodh Krishna Jha, Ram Krishna Jha and Ram Bahadur accompanied them to Bhagalpur. According to the evidence for the plaintiff these three men stayed at Monghyr and left the next day: Ram Krishna and Ram Bahadur went to Laheriaserai (Darbhanga) and Bodh Krishna went to Supaul. We are inclined to accept the defendant''s version. Babu Bhairo Prasad says that after congratulating Mr. Ram Krishna Jha he suggested to him that now that the case had been compromised, Ram Krishna Jha should accompany the lady to Bhagalpur and see that she was comfortably settled down. There is a very serious contradiction between the evidence of the only two witnesses on this point examined for the plaintiff, Bodh Krishna and Ram Bahadur. Ram Bahadur says that next morning (after the compromise) Bodh Krishna went to Supaul from Sahehpur Kamal via Mansi while Ram Krishna Jha and he went to Laheriaserai via Barouni, showing that all the three travelled together up to Sahehpur Kamal only and that from there Bodh Krishna Jha went to Supaul via Mansi, while the witness and Ram Krishna Jha went to Laheriaserai via Barouni, the two places being in opposite directions. Bodh Krishna Jha, on the other hand, deposes that all three went by train and steamer up to Mansi, and from there they separated, Ram Krishna Jha and Ram Bahadur going to Darbhanga and he to Supaul.

This being the contradiction as to where they went after the compromise and the evidence that they went to Bhagalpur being given by respectable witnesses, as we have said, we prefer the defendant''s version, though as far as the general result of the case is concerned the point is of no great importance.

The defendants have examined witnesses to prove that during her stay at Bhagalpur the lady met several persons and admitted to them that she had given up the estate and accepted a maintenance. (After discussing evidence, the judgment proceeded). We have narrated the facts and analyzed the evidence of the incidents which took place at Simaria Ghat, Monghyr, Bhagalpur, Allahabad and Benares. We have read the evidence over and over again very carefully and we feel no hesitation in coming to the conclusion that the finding of the learned Subordinate Judge is perfectly correct and unassailable.

We hold that the terms of the compromise as contained in the petition were the terms which were willingly agreed to by the lady and that no fraud was practised upon her. We will later on deal with how far the defendants have proved the facts necessary to make the compromise binding upon the plaintiff who is a pardanashin lady. But before we leave this part of the case we have to make a general remark about the nature of the evidence adduced on behalf of the parties. The defendant, as we have already stated, has produced all the witnesses whom he could produce. Their evidence on the whole is true and consistent with the ordinary course of human affairs. It may be that here and there some of them have tried to prove too much, but the main story remains unshaken and is perfectly trustworthy,

On the other hand, the plaintiff has withheld most important witnesses on excuses which do not appear at all satisfactory, and there is an artistic touch in the evidence of the witnesses who have been produced for her. There is the evidence of the lady describing the incidents which took place from Simaria Ghat to Benares. The witnesses who have been produced to corroborate her are those who come in contact with her story only one at a time and they touch only the fringe of the story. As to what transpired at Simaria Ghat, there is the solitary evidence of Rasdhari Kumar, and he only hears the last part of the conversation between Suraj Mohan and the lady, and that was that Suraj Mohan told the lady "come and take your Raj." At Monghyr only one witness Bodh Krishna Jha came near the lady, and that also for a few minutes. There was no business talk between them.

101 There is no other witness to depose as to what happened at the house of Baiju Mandal. Ram Krishna Jha, who also saw the lady though for a few minutes, has of course not been examined. As to what happened at the Monghyr railway station, there is again the evidence of only one witness Bodh Krishna Jha who was in the waiting room for a few minutes just to see the payment of the money. Ram Krishna Jha who was there has not been examined, and another witness Ram Bahadur did not reach the station in time.

As to the happenings at Monghyr there are two witnesses: Bodh Krishna Jha and Ram Bahadur, and curiously enough their stories very seldom come into contact with each other. The one point on which they deposed to the same incident was as to the routes which they took after leaving Monghyr and, as we have said, they have contradicted each other there. As to what transpired at Allahabad, there are two witnesses, but Dharam Narain was not present when Balbhadra made disclosures to the lady and Sudhakar Jha was not present when the lady mentioned it to Dharam Narayan. About the conversations at Benares, Dharam Narayan is again not a witness of what transpired when Mr. Murari Prasad was there.

Dharam Narayan Chaudhury was not called till more than a month after Mr. Murari Prasad was examined, and in between the two, six witnesses on other topics were examined. This reminds us of the remarks of Chaudhury, J., of the Calcutta High Court, in the case of the will set up by the lady. It will be recalled that she attempted to obtain letters of administration of a will which was said to have been either lost or destroyed, and the basis of her application was a copy of the draft of the will. Therefore there was no necessity of proving the signature of the testator. In the course of the judgment the learned Judge observed as follows:

There is one point which is noticeable in this narrative, namely that most of the incidents taken separately relate to one person at a time. The dictation is to Rasbehari when no one else is present. Ugrah Mohan''s interview with Charu and the appointment made with him on the evening of 15th January is spoken to by Charu alone. The attestation necessarily takes place in the presence of two, namely of Sarat and Charu. Rasbehari was not then present. The conversation between the mother and the son takes place in the presence of Suraj Mohan Chaudhury alone. At the time Easbehari attested none else was present.

The same thing was repeated in this case. The scene is different and the actors are different, but the acting is the same and the stage manager is plainly the same--it is unnecessary to say who. The plaintiff is no doubt a pardanashin lady, but it was conceded that she is intelligent and of business habits. The protection which is given to pardanashin ladies of this country is not peculiar to them. Such protection has always been given by the Courts to persons who are weak, ignorant and infirm, and unable to look after themselves. In such cases generally the person claiming protection has to prove that as a matter of fact he was on account of the weakness of his power of understanding and intellect liable to be imposed upon by those who would take advantage of his position, and therefore needs protection. In the case of pardanashin ladies however the law presumes them, from the very fact that they live in seclusion, to be incapable of protecting themselves and therefore entitled to protection. We do not propose to refer to all the cases placed before us on this point during the course of the arguments. Some of them have been referred to in the judgment of Mookerjee, J., in the case of Satish Chandra Ghose v. Kalidasi Dasi AIR 1922 Cal 203. The principle laid down by a long course of decisions is however clear and undisputed and may be thus stated.

The Court when called upon to deal with a deed executed by a pardanashin lady must satisfy itself upon the evidence, first, that the deed was actually executed by her or by some person duly authorized by her with a full understanding of what she was about to do; secondly, that she had full knowledge of the nature and effect of the transaction into which she is said to have entered; and thirdly, as was held in some of the decisions, that she had independent and disinterested advice in the matter. Independent and competent advice however does not mean independent and competent approval.

It simply means that the advice should be entirely removed from the suspected atmosphere and should be clear in language and should proceed from an independent person free from any taint of interest, and the party acting should know precisely the nature and the consequences of the transaction. This independent advice is not however essential; in a case where there was no independent advice, the Court will have to consider the probable effect of such advice, if it had been given, on the mind of the lady. In fact, as was pointed out by Das, J., in this Court in the case of Man Singh v. Nawalakhbati AIR 1923 Pat 492, the rules laid down by the Courts of law for assisting them in determining whether a pardanashin lady understood the nature and effect of a document executed by her are rules of prudence rather than of law, and their application depends upon the particular facts of each case.

Each case has facts of its own, and considerations which may arise in one need not necessarily arise in another. This was clearly stated by their Lordships of the Judicial Committee in the case of 89 Ind. Cas. 649 (Privy Council) . Lord Sumner in delivering the judgment of their Lordships observed as follows:

The mere declaration by the settlor, subsequently made, that she had not understood what she was doing obviously is not in itself conclusive. It must be a question whether, having regard to the proved personality of the settlor the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settlor or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them. Of course fraud, duress and actual undue influence are separate matters.

This was quoted with approval by Sir John Wallis in the case of AIR 1927 84 (Privy Council) and applied in the case of AIR 1931 303 (Privy Council) . It must be borne in mind that what is given to pardanashin ladies is a protection, They are under no disability, and if transactions entered into by them are lightly interfered with as if they were incapable of freely entering into contracts, it will be dangerous for the ladies themselves. Nobody would in that case ever transact business with them, if he could help it, and the protection will place them under a great disadvantage. In the case of Kali Bakhsh Singh v. Ram Gopal Singh (1913) 36 All 81, Lord Shaw in delivering the judgment of their Lordships observed:

Their Lordships, as already mentioned, have fully in view the fact that the lady was a pardanashin lady, but the evidence as to her strength of will and business capacity, and the fact that the deed as granted is not in the circumstances of her life in any way an unnatural disposition of part of her property, go far, taken together with the evidence in this case, to convince them that the deed was granted by her as the expression of her deliberate mind and apart from any undue influence exerted upon it. In short, their view is that if independent outside advice, which is an essentially different thing from independent outside control, had been obtained, the lady would have acted just as she did. Much as their Lordships support and approve of the protection given by law to a pardanashin lady, they cannot transmute such a legal protection into a legal disability. She might, especially if the outside adviser had been a lawyer, have altered the shape or form of the transaction, but in substance and result she would have carried out the same purpose and will as are expressed by the deed under challenge.

In that case the lady in question had transferred her properties to the legitimate son of her paramour and mukhtar-am from whom sho had had two illegitimate daughters.

There was no evidence of any independent outside advice, and it was clear that the only person who had access to the lady and was her adviser was the man whose son was the donee. This case was referred to with approval by Lord Sumner in 89 Ind. Cas. 649 (Privy Council) already referred to. His Lordship observed:

Independent legal advice is not in itself essential .... After all, advice if given might have been bad advice .... The real point is that the disposition made must be substantially understood and must really be the mental act as its execution is the physical act of the person who makes it.

It will thus appear that each case will have to be decided on its own merits and that the Court will have to be satisfied whether the act in question was the free act of the lady and whether she fully understood the effects and consequences of it. In the case of Sunitibala Debi v. Dhara Sundari Debi AIR 1919 PC 24, Lord Buck-master after referring to the terms of the compromise in question, which in his Lordship''s opinion was simple and easily understandable, observed as follows:

It is not necessary--indeed, it is undesirable--to insist in such cases upon a test which depends upon a clear understanding of each detail of a matter which may be greatly involved in legal technicalities. It is sufficient that the general result of the compromise should be understood, and that people disinterested and competent to give advice should, with a fair understanding of the whole matter, advise the lady that the deed should be executed.

In the case of Ruhulla v. Hasanalli Degumia AIR 1228 PC 303 the Privy Council held that where the execution of the deed was not questioned, and the disposition of property made by it was so natural that the lady would have had every motive to make it, and it was further proved that she knew and approved of what was being done, the transaction ought to be upheld. They repeated the observation made in Kali Bakhsh Singh''s case (1913) 36 All 81 that the legal protection of pardanashin ladies should not be transmuted into a legal disability. We have therefore to consider the position of the lady, her intellect and power of understanding, and her business capacity, the nature of the transaction and the person with whom she was dealing. The transaction in this case is not the disposition or transfer of any property vested in and in the possession of the lady. It was a compromise of a disputed claim in a pending suit after her two attempts in the two will cases, to establish her title to the property and defeat that of Suraj Mohan, had failed. The compromise was being effected after ten years of hotly contested litigation. Sir Sultan Ahmad in the course of his able and learned address more than once characterised this compromise as a confiscation of the estate of the lady; more than once he tried to impress upon us that the lady was giving up her estate in lieu of maintenance.

We are unable to look upon this compromise as a transaction by which the lady was divesting herself of an estate vested in her. Till then in the eyes of the law and as a matter of fact the estate was vested in the executor Mr. Savi, and after the administration it was to go to the residuary legatee Suraj Mohan. When we deal with a compromise of a disputed claim in a pending suit, considerations arise rather different from those applicable to the transfer of vested properties.

The principle is certainly the same but its application will be different because the compromise of a disputed claim can be validly brought about even when nobody has a clear notion of the exact rights of either party. The first thing to be considered is the intellect, business capacity and power of understanding of the lady. There may be a pardanashin lady who is illiterate, who has never come into contact with any stranger and who has never had any occasion to fight a suit or deal with Court business A compromise by such a lady stands upon a different footing from one by a lady who is highly intelligent, literate and is in the habit of having direct communication with her legal advisers.

Let us now consider the position of the lady before us. In the case of AIR 1927 84 (Privy Council) , Sir John Wallis, after referring to some incidents in the life of the lady involved in that case, observed:

This certainly suggests that she was a lad of strong personality and not at all likely to have left all her business in the hands of her servants, sign all the documents put before her without explanation and allowed them to do what they liked with the money paid to herself when the deeds were registered.

This remark applies with even greater force to the plaintiff in the present case. At the time of the transaction she was middle aged. Her husband, who was an enlightened gentleman, had given her some education in Bengali, English and Hindi, and she know these languages to some extent. She admitted this in her evidence in the Calcutta will case. No doubt she now says that she forgot everything a few years after her husband''s death; but several of her Hindi writings are before us and, as we have already stated, they indicate a practised fluent and well-trained hand.

While giving evidence in this case, she would often insist that a question in cross-examination should be put to her in the Maithili dialect. On other occasions, when off her guard, she made no difficulties about understanding questions put in Hindustani and actually answered them. Whenever any awkward question was put, she would ask the question to be repeated and make a number of excuses in order to get time to answer. She was subjected to a lengthy cross-examination in this case, and on each occasion, when in difficulty, she always had some intelligent explanation to offer. If nothing was available to explain some events, her puja and the annoyance of Mr. Ram Krishna Jha and Babu Murari Prasad were promptly mentioned.

Her evidence will show that she behaved very well in the examination in chief, but as soon as her cross-examination commenced, she began to fence and the burden of her answers to a large number of questions was that she did not know the Court language (Hindi) and spoke the Maithili dialect which is her mother tongue. We will shew in a moment that she is fully familiar with the Hindi language in which the petition of compromise has been written, a language in which she has been signing the verifications of the plaints and petitions. Ex. W-1 is her deposition in the Bhagalpur will case. A reading of this document will show that she fully know Hindi.

In that evidence there are a number of passages which have been recorded in vernacular in her own words, and they show that she could speak good Hindi containing Persian and Arabic words, a language which is used in documents filed in Courts. Of course, there are here and there passages in the Maithili dialect as well. She knew the English dates and the English months. When asked about her signature on the will propounded by Mr. Savi, she said that the signature was like hers, but that she was not sure that it was really hers. Surely, this is scarcely consistent with her evidence in this case where she claimed to be unable to read her signature and only able to identify the letters individually.

In this deposition she stated that since her husband practised fraud upon her by getting her signature on blank papers for the purpose of a will, she had been careful, while signing documents, to specify the purpose for which she was doing so. A number of vakalatnamas from her are on the record, and in almost every one of them she has clearly indicated the purpose for which she was engaging a lawyer. During her deposition there were occasions when she answered questions put in English before they were interpreted; and when her attention was drawn to this fact, she definitely stated that she knew a little of English. She used to consult lawyers herself from behind the pardah, to hear them, but convey her answers to them through an intermediary.

She knows the names of the lawyers who worked for her in Patna, Calcutta and Monghyr. Such is the lady who is said to have been imposed upon by a young lad who had attained his majority less than a year previously and with whom she had been fighting for many years past. Can it be said with any amount of reason that this youth was in a position to impose upon the lady or dominate her will? The signing of the petition of compromise and the receipt for Rs. 3,000 is admitted by her, but it is said that she signed them without knowing their contents and without their having been read over to her. We have already pointed out that this is not a credible story. We have said that the signature portion on the petition contains a statement that she had read the petition, and the whole of the receipt is in her handwriting.

She herself says that when the petition was brought to her for her signature, she asked whether Rs. 20,000 was paid to Ram Krishna Jha, and that she did not sign the petition till the money was actually paid, and it is on the face of it impossible to believe that she signed it without satisfying herself that it contained the terms which she had agreed to.

Now coming to the nature of the transaction, it was, as we have said, not a transfer of any property vested in the lady, but a compromise of a disputed claim in a pending suit. It has nowhere been suggested either in the long argument which has been addressed to us or in the petition u/s 151, Civil P.C., or in the evidence of the lady that she did not fully know or understand the scope of her suit. Her own allegations about the terms of compromise clearly show that she knew every little detail of her claim. It will be remembered that according to her the terms were the estate was to be hers, but to be managed during her life by Suraj Mohan; she was to get Rs. 1,000 a month, besides house rent and all her expenses till the debts were paid; thereafter she was to get the jewellery and gardens and the arrears of maintenance. The very statement shows that she knew that her suit was for the estate and that she had also claimed in it jewellery and gardens.

In her evidence she mentions the income of the estate, with a slight exaggeration. Apart from her admitted and indisputable knowledge of the nature and extent of her suit, there is very clear evidence that Maulvi Sayeeduddin did explain these things at least to her. Her petition u/s 151, Civil P.C., conveys the impression that she herself heard what Maulvi Sayeeduddin said. In her evidence she denied it and stated that she received his message through a servant. That is palpably false. The fact that Maulvi Sayeeduddin did explain to her the nature of her suit was, as we have said, in a way admitted when the lady''s case was put to the witnesses of the defendant.

The only question which now remains is whether she understood what she was getting in return for her giving up her suit. That was simple enough. It was a maintenance of Rs. 1,000 per month, Rs. 17,000 in cash, a decree for Rs. 1,00,000 payable in instalments, a suitable house at places of pilgrimage on a monthly rent of Rs. 100 to Rs. 200 and a conveyance. For a lady with the capacity and experience described above there could clearly have been no difficulty in understanding these terms and comprehending what she was actually getting in lieu of the claims which she had made. Once we come to this conclusion, no other thing is really required to be proved. In fact there is a good deal of force in the contention of Mr. Manuk that the onus on the defendant has been discharged by the admitted and undisputed facts of the case if the story of fraud put forward by the plaintiff is disbelieved.

It is not her case that she entered into the compromise without understanding it. Her case is essentially either fraud or nothing. No doubt, in her petition u/s 151, Civil P.C., all possible attacks were made on this compromise. There was an allegation of fraud; there was a half-hearted suggestion of misunderstanding; there was an allegation that she was kept in a house surrounded by the people of Suraj Mohan, and there was also a plea of want of explanation and want of independent advice. Her story of being kept under restraint in the house of Baiju Mandal--the story that peons were kept to guard her can be dismissed at once.

It is not mentioned in the petition. For the first time it was introduced in her evidence and (in order to explain this) she said that she heard it later from Bodh Krishna Jha. What sort of restraint it was will be apparent from the fact that she had to admit that she used to go daily in the morning to the river for her bath in the Ganges and that when she wanted to come out of the house to go to the railway station there was nobody to stop her.

The real contest however has been that the terms as agreed to by her were fraudulently changed and that she signed the petition of compromise on trust. We have disbelieved this and have held that she agreed to the terms mentioned in the petition.

The learned advocates, who argued her case before us, were certainly under a difficulty in arguing a case based on fraud and fraudulent change of terms on the footing of a case of a compromise entered into without understanding its effects. To our mind these two cases are somewhat inconsistent. Her allegations amount to this: "I did compromise; I knew my suit; I wanted of my own accord to got a particular set of terms; I got them; they were agreed to willingly; but I was made to sign a petition which, without my being aware of it, contained different terms; and that is how I am aggrieved." If this story goes, and, as we have shown, it is entirely false, the question of want of explanation and want of advice does not arise. If her story be true, the compromise propounded by the defendant cannot stand. It would not stand on that footing, even if the person involved was not a pardanashin lady.

For a deed to be binding on a person executing it, it is necessary that there should be not only the physical act of execution but also the mental act of intending the execution. In the case of a person who is sui juris and not under any disability, this mental act is presumed if the execution is admitted or proved; a man must be taken to have intended to do what in fact he has done. But documents executed under influence of fraud or by persons who are ignorant, weak and infirm (pardanashin ladies come in this category) will not be given effect to unless the Courts are first satisfied that the mind accompanied the hand in the act of execution. In both the cases, namely when a person labouring under some deception caused by fraud executes a document believing that he is agreeing to one set of terms while the document contains another set of terms, and when a pardanashin lady does so without fully appreciating the full import of the document owing to her pardanashin character, the document is invalid on account of the fact that the physical act of execution is not accompanied by the mental act.

In one case there is the absence of a mental act corresponding to the physical act, because while the physical act is being performed in respect of one set of facts, the mind has before it quite a different set of facts. In the other there is an absence of a corresponding mental act on account of the deficiency in the intellectual capacity caused by the lady''s life of seclusion. In the one case the party alleging fraud must prove it, by placing before the Court facts from which it can irresistibly be found. In the other the person who wants to take the benefit of the document must prove that the intellectual deficiency was made good by proper explanation given to her.

It will thus be seen that the two cases stand upon two different footings. The case of the appellant was under the first head, but it has also been argued under the second head. We have said that the intellectual deficiency of the lady concerned must be proved to have been made good by proper explanation giver to her. What that evidence should be will vary from case to case and from lady to lady. No particular mode or quantum of proof is needed. There may be cases in which on the admitted facts of the case the Court, taking into consideration the personality of the lady and the circumstances of the case, is satisfied that the onus has been discharged, that there was no actual deficiency to be made up and that the lady concerned did fully understand the transaction in question. In our opinion, the present case is of this nature. The case of fraud has hopelessly failed; as we have already shown, the lady herself not only had the capacity to, but did actually, negotiate, settle and agree to all the terms mentioned in the petition of compromise. She admits that she agreed to certain terms, and it is not her case that she did not understand them.

It cannot therefore be argued that she was capable of understanding and appreciating the terms which she says she agreed to but not the terms which have been proved to have been subscribed to by her. We wish to explain ourselves by giving an illustration. Supposing a pardanashin lady has brought a suit for recovery of Rs. 2,000. The defendant puts forward a petition of compromise signed by the lady in which she has compromised the suit for Rs. 500. The lady admits that she compromised the suit and signed the petition of compromise but alleges that she compromised the suit for Rs. 1,500. The question will be whether she compromised the suit for Rs. 500 only.

Once this is proved beyond all doubt, the compromise is binding upon her, provided that the lady knows sufficient arithmetics to understand the difference between Rs. 2,000, Rs. 1,500 and Rs. 500, provided further that the compromise was not brought about either by undue influence or fraud or any other invalidating circumstance. Of course, if the compromise be for a grossly inadequate consideration, that may be an element in the proof of fraud or may indicate that she did not fully appreciate the terms.

We will deal with this later. In this case the terms alleged by the lady are if anything, rather mere complicated than the terms contained in the petition of compromise. In the terms alleged by her, there is one, that Suraj Mohan is to manage the estate all along.

It could have been argued that it was necessary to explain to the lady the full import of that appointment and that she ought to have been told what would happen if he mismanaged the estate or did not make over the entire income to her. But the terms in the compromise petition are as we have said simple and required no particular explanation. However it was conceded by the defendant in the lower Court that the onus was upon him to prove that the lady signed the petition of compromise after understanding its full impart and Mr. Manuk who has argued the case on his behalf has maintained that he has discharged the onus upon him not only by proving the necessary facts from the admissions and statements of the lady herself but also by the evidence adduced on his behalf; and we desire to deal with the case from that standpoint also.

We have held that the lady knew every inch of her case and fully appreciated it. The lady claims to have known that under the Mithila law she was the joint owner of the estate with her husband, and to have been told of it by an eminent barrister. She was so firm on this point that on one occasion during cross-examination she resented the estate being called her husband''s estate and maintained that it was equally hers. We have also held that Maulvi Sayeed-ud-din did explain to her the nature and extent of her claims in the suit. We have further held that the negotiations of the compromise emanated from her, and that she herself settled to terms partly at Simaria Ghat and partly at Monghyr.

It has been proved beyond all doubt that the draft of the petition of compromise which was prepared under her own supervision was read out to her, that Ex. F is a copy of that draft, and that the petition of compromise is practically an exact copy of Ex. F with a clause of personal exemption of Mr. Savi added to it and the amount of arrears filled in. The actual amount as alleged by the lady is Rupees 1,20,000, while in the petition of compromise it is Rs. 1,17,000. The difference is comparatively small.

We have also held that the lady agreed to this personal exemption of Mr. Savi. In our opinion therefore everything required to be proved has been proved. Sir Sultan Ahmed however argued that there was no evidence of actual explanation.

We definitely asked him what there was in the petition of compromise (assuming that it contains the terms as agreed to by the lady) which required explanation and which she could not have otherwise understood. He pointed out to us three such terms; and urged, first, that it ought to have been definitely explained to her that her other claims were going to be dismissed as mentioned in para. 8 of the petition of compromise, as the setting of the paragraph was likely to have misled her; second, that she ought to have been told that she would not be able to enforce the charge created on the estate for her maintenance in the execution department and, third, that she ought to have been told that the term contained in para. 6 of the petition to the effect that Suraj Mohan would look after her, would not give her any discomfort and would always be obedient to her, was unenforceable. Regarding the first of these contentions, namely, about the dismissal of the rest of her suit, it is clear that if the lady knew her suit and if she also knew what she was getting, she with her capacity and experience could not but have known what she was giving up.

It was therefore not necessary in the circumstances to give her any further explanation or warning about the rest of the suit. There is an overwhelming mass of satisfactory evidence, (in fact this is the evidence of every witness of the defendant) that what was compromised was the entire suit without any reservation. Even the lady does not say that it was not the whole suit that she compromised. The only difference between her case and that of the defendant is as to what she was to get in return for abandoning all her claims in the suit. So the question again resolves itself as we have said more than once, into the terms settled. Once we come to that conclusion, it follows that she knew that the rest of her claims was to be dismissed.

As to the second contention, namely that the charge to be decreed was not enforceable in execution, we will show later on that as a matter of fact the charge can under the law be enforced in execution of the decree which has been passed in this case and that no fresh suit is necessary. But assuming that the contention of learned Counsel is well founded, even then an explanation of such an intricacy of law was not necessary. It was after all matter for lawyers to settle. We have held on the circumstantial evidence in this case that the draft was not prepared and settled by Maulvi Sayeeduddin, The petition of compromise moreover was as a matter of fact signed by Babu Hito Rai.

If a person informs his lawyer of the terms on which he has compromised a suit and asks the lawyer to prepare a draft, and if that lawyer prepares a draft, that draft would embody his advice. Babu Hito Rai, it is true, had no power to compromise the suit, but he was certainly the lady''s legal adviser; and if a draft was seen by him and Maulvi Sayeeduddin and approved of by them, and if the lady accepted that draft, it cannot be doubted that she left the settlement of the legal forms to the lawyers.

Then again it is not the lady''s evidence that if she had known that under the law the charge for maintenance could only be enforced by a fresh suit in respect of each month''s arrears, she would not have agreed to the compromise, nor can it be said that in the circumstances she would have been at all well-advised in withholding her assent on such a ground. As to the third contention again, it is absurd to suppose that the lady could have been under any misapprehension that the clause about general looking after her and obedience was a term which could be legally enforced, and it is not her case in the evidence that she would not have compromised, had she known the legal effect of this clause.

Supposing this particular thing was not explained to her, is there anything to show or suggest that had it been explained to her that the clause had no value in law she would not have compromised the suit? Therefore in our opinion there was nothing in the compromise which in the circumstances of this case required any particular explanation to be given to the lady. As long as the petition of compromise contains the terms which were agreed to by her, it is immaterial whether the petition of compromise was or was not even read over to her or read by her.

But as a matter of fact there is good evidence that the draft was read over to her at least once, if not oftener, in the early stages of its preparation, and that the fair copy was read by her and also read to her by Ram Krishna Jha and again by Baiju Mandal in the presence of the Subordinate Judge. Whatever might be said about the reading of the petition by her or to her by other persons, there is no doubt that it was read over to her by Baiju Mandal and was heard by her--she was within hearing distance and was not really prevented by any noise or any mental disturbance from following it; and its contents were simple enough to be understood by her, and she must have understood them.

The next point is the question of independent advice. Now, as we have shown, independent advice is not always essential. As was pointed out by the Judicial Committee, the advice, if given might have been perverse or might really have been injurious to her interest. Nevertheless though there is no evidence that anybody advised her to compromise on these terms, there is the admission of the lady that her uncle Bidy Jha and her cousin Bodh Krishna Jha did advise her to compromise. These two could have had no motive for benefiting Suraj Mohan, and in fact no such motive has ever been suggested. As to the terms in our opinion the lady was quite competent to form an opinion of her own whether she should retire from the fight on a maintenance of about Rs. 1,300 per month with a decree for past maintenance amounting to Rs. 1,00,000, and a cash payment of Rs. 17,000. Though, as we have said, there is no evidence that anybody advised her to compromise on these terms, all these persons who could have advised her in this respect were available to her and were present and were in touch with her.

It is not the duty of the defendant to prove the actual conversations which took place between the lady and her friends and advisers. Expecting this would be expecting impossibilities. In fact, had any evidence of advice having been given in the presence of the defendant''s witnesses been adduced, it would have been very suspicious and unbelievable, firstly, on the ground that such advice is generally given in confidence and not in the presence of the people of the opposite side and, secondly, because such advice, if given in the presence of the adversary or his men, would have been liable to attack as valueless. The defendant could do nothing more than make all her friends and advisers available to the lady. Ram Bahadur (her karpardaz) was there; Bodh Krishna Jha (her cousin) was there; Ram Krishna Jha who was the life and soul of her litigation was there. At least two of them (Bodh Krishna Jha and Ram Krishna Jha) had access to the lady.

We do not believe that they were indifferent. They must have advised her, and the compromise was certainly with their advice. The lady was also placed by the defendant in touch with Maulvi Sayeeduddin. At the time when the compromise petition was fixed, her lawyer Babu Hito Rai was present, and whatever might be said against him, the fact remains that even after the compromise he continued to have the confidence of the lady and went on working for her. We fail to understand what else could have been proved by the defendant. We therefore hold that in this particular case there was no deficiency in the intelligence of the lady which required to be supplemented by any out-aide help or advice; but assuming that there was, she had ample opportunity of receiving such help and advice which, it is not satisfactorily shown, was really thrown away by her.

The lady was quite capable of understanding the business. She did understand it, and willingly entered into it, and the terms of compromise were fully understood by her, and the terms in the petition were read by her and were also read to her. As we have said it is not necessary to notice the eases relied upon by the appellant. Almost all of them lay down that the burden is on the party, who wishes to enforce a document executed by a pardanashin lady, to prove that she understood and appreciated it. This is not disputed. The decisions are based upon the facts of those cases, for instance, in Kamawati v. Digbijai Singh AIR 1922 PC 14 where a pardanashin lady who had inherited some properties from her mother''s brother under the provisions of the Succession Act, relinquished her claim on acceptance of a monthly allowance of Rs. 50, the transaction was set aside mainly on the ground that the lady did not know the extent of the properties which she had inherited. We have already referred to the case of 89 Ind. Cas. 649 (Privy Council) .

There also the question was whether the onus, which was undoubtedly upon the claimant, was sufficiently discharged. Two cases however require special notice one is a decision of the Calcutta High Court in the case of Srimati Taru Bala Dassi Vs. Sourendra Nath Mitra and Others, . There the learned Judges set aside a compromise entered into by counsel on behalf of a pardanashin lady as being manifestly unjust and unconscionable, relying upon the care of Neale v. Gordon Lennox (1902) AC 465. When the matter went to the Privy Council, the decision of the High Court was set aside and the case of Neale v. Gordon Lennox (1902) AC 465 was distinguished in AIR 1930 158 (Privy Council) . It is important to note that their Lordships held that Order 23, Rule 3 "does not in terms appear to confer a discretion on the Court." They however clearly guarded against being understood to say anything which might prejudge a contention that the Courts retain an inherent power not to allow their proceedings to work substantial injustice--the principle laid down in Neale v. Gordon Lennox (1902) AC 465 at p. 469.

We will revert to this aspect of the case later on, as it was argued that the transaction is so unconscionable and unjust, that the Court in the exercise of its inherent power should not record it. At present we are on the doctrine of pardanashin ladies. Mr. Hasan Imam, who replied on behalf of the lady, drew our attention to the observations of Chaudhury, J., in the case of Kamini Dasi v. Krishna Chandra Mukherjee (1912) 39 Cal 933 where the remarks of Farwell, J., in the case of Powell v. Powell (1900) 1 Ch 243 that the duty of a solicitor does not end with the giving of advice to his client and that if the solicitor finds that his advice is not accepted by his client and that the latter is bent upon carrying out an improvident act, it is his duty to refuse to work, were followed. That was however a question of the duty of a solicitor towards his client, with which we are not concerned here. There was no solicitor in this case, and we will show later that the act of the lady was in no way improvident; rather in our opinion, it was in every way beneficial to her.

On the other hand, in the recent case of AIR 1932 134 (Privy Council) on an appeal from this Court, the Judicial Committee upheld a deed against a pardanashin lady, though there was no evidence of the terms having been explained to her. The deed in question was a mukhtarnama which in the widest possible terms gave power to her attorney inter alia to mortgage the properties of the lady and even to sell them. It was signed in the pen of her father on her behalf in the presence of two witnesses and was presented by her to the Sub-Registrar, and she affixed her thumb-marks to it in his presence. There was no evidence at all that it was read over and explained to her, but there were circumstances, some of them subsequent to the transaction, which showed that she had fully understood it. The lady was accordingly held bound by it. In the present case the lady admitted before the Subordinate Judge having signed the petition of compromise, and it was made over to him in her presence.

It has been very strenuously contended that the compromise is unjust even if the lady agreed to it, and that it was an unconscionable bargain and an improvident act on her part, as she received very inadequate consideration for such an agreement and in fact got nothing for her personal properties in the suit such as the jewellery, gardens, etc., and got future maintenance and arrears, the house rent and conveyance, only in lieu of the estate of her husband, though she would have been entitled to maintenance in any event; and as even the maintenance given to her is very disproportionate to the income of the estate. The argument is that under the Mithila School of Hindu law the lady had an indefeasible case for the estate and her suit was bound to be decreed simply on the examination of that law; that even if she had lost her claim to the estate, she would in any event have got her personal properties, i.e., the jewellery, gardens, etc., and would in any case have been allowed a maintenance on a much higher scale, and that the sum of Rs. 100 per month provided in the will was a legacy and would not have disentitled her to maintenance according to the means of the estate irrespective of it.

These points have been urged both as an important element in the consideration of the facts of fraud and intelligent execution, and also as a question of law for the exercise of the inherent power, of the Court to refuse to record this compromise. It is contended that if we come to the conclusion that the compromise or at least a part of it--was without consideration or for a very grossly inadequate consideration, and involved the surrender of her indefeasible right to the estate, it should be held that she could not have signed the petition of compromise after fully understanding its effect and scope, and that she must have done so either under the influence of fraud or without understanding it.

It is further contended that, at any rate, the compromise is so unjust that we should in the exercise of our inherent powers refuse to record it on the basis of the principle enunciated in Neale v. Gorden Lennox (1902) AC 465 , a principle which was applied by the Calcutta High Court in the case of Srimati Taru Bala Dassi Vs. Sourendra Nath Mitra and Others, and not dissented from by their Lordships of the Privy Council in appeal from that case. A consideration of these questions involves in a way the trial of the suit itself. Ordinarily, when investigating the fact and lawfulness of a compromise under Order 23, Rule 3 it is irrelevent to examine the strength or weakness of the suit itself. We agree in the observations of my Lord the Chief Justice of this Court (Sir Courtney-Terrell) in the case of Mahabir Tewari v. Chhathu Tewary AIR 1932 Pat 170 and are of opinion that when a compromise is in dispute, the party repudiating it, on whatever ground it may be, cannot reasonably ask that the entire suit be reopened. In the above case the question involved was whether a compromise partition decree should be set aside on the ground of fraud.

His Lordship observed:

Sometimes also the Court proceeds to examine whether the plaintiffs claim was well-founded in law--an equally irrelevant inquiry. The proper method for a Court in approaching a case of this kind is to say to the plaintiff in effect: ''I will assume for the purposes of this case that the division effected by the compromise constitutes from your point of view a thoroughly bad bargain, otherwise you would not have attempted to get it sot aside, but you must proceed to establish, notwithstanding that assumption in your favour, that the compromise was induced by fraud.'' The legal procedure for setting aside a compromise is not a procedure for setting aside a hard bargain.

Ordinarily, as we have said, in a proceeding under Order 23, Rule 3 an inquiry into the merits of the suit itself is entirely irrelevant. To hold otherwise will create an absurd position: every party who wants to go back on a compromise lawfully entered into by him would ask, when the compromise is under inquiry, that the entire suit should be tried first before the compromise can be recorded. This will defeat the very object of Order 23, Rule 3.

In this case however we are dealing with a pardanashin lady who has set up an issue of fraud; and want of understanding and of appreciation was strenuously argued before us. We are now at a stage when we are examining whether this compromise should or should not be recorded; or, to be more explicit, whether the order of the Subordinate Judge for the recording of the compromise should be upheld. In our opinion, at this stage it will not be wholly irrelevant to examine in a summary way the points urged by the appellant in order to find out whether there is any prima facie indication in the terms themselves--anything to justify the conclusion--that the lady would not have compromised on these terms unless she was either labouring under fraud or unless she was in complete ignorance of the importance of the compromise; or, at any rate, whether it is a case in which in spite of the mandatory provisions of Order 23, Rule 3 we should exercise our inherent power (if there be any such power in us) and refuse to record the compromise.

We propose to take up this point under the following heads:

(1) What was the financial position of the estate and the extent of its indebtedness at the time when the compromise was effected? (2) Is the maintenance provided in the compromise grossly inadequate and manifestly unjust to the lady in view of the position of the estate? (3) Is the absence of provision for the (barkhi) sradh unjust? Was the lady entitled to any such provision? (4) What were the chances of plaintiff''s success in respect of her suit for her alleged personal properties namely, the jewellery gardens, etc.? (5) What were the chances of the plaintiff''s success as regards her claim to the shebaitship? (6) What were the chances of success of the plaintiff''s case in respect of the estate? (7) Is the compromise for no consideration or for a grossly inadequate consideration? (After examining the financial position of the estate and the extent of the indebtedness, the judgment proceeded.) What we have said above leads us to the consideration of the question of the reasonableness of the amount of maintenance.

Here again we do not wish to approach it with a view to fix a maintenance but simply to consider whether the maintenance fixed by the compromise is grossly inadequate. The lady got Rs. 1,000 per month together with about Rs. 200 per month for house rent during the period she may be away from Bhagalpur and a conveyance which would ordinarily cost about Rs. 100 per month, the total being Rs. 15,600 per annum. Rs. 1,000 per month, the maintenance itself, was to run from the time of her husband''s death, and on the amount of arrears interest at 6 per cent per annum was to run. This was certainly a very heavy amount, and for a period for 14 years was beyond the capacity of an estate the net income of which (after deducting only the Government dues, etc.,) was about Rs. 65,000 annually, and which was indebted to the extent of Rs. 5,33,000 and was liable to pay a heavy probate duty.

Mr. Savi had estimated the net income, after paying interest only and without making any provision for payment of the principal, to be Rs. 26,000 per annum, and we think he was correct. The principal debt was Rs. 5,33,000 and if 14 years be taken to wipe off this principal as actually happened, there was hardly anything left for any other expenditure. The debt would not however have been cleared off in 14 years, had not money come from other sources.

Therefore a provision that the lady should get a maintenance of Rs. 12,000 per annum for ten years prior to the compromise and thereafter at the rate of about Rs. 1,300 a month in spite of the estate remaining indebted would have been much too liberal and indeed extravagant. If we take into consideration the position of the estate after it is relieved of the debt, the maintenance at this rate would come to about l/5th or l/6th of the income, even on the appellant''s figures. Sir Sultan Ahmed has placed before us a number of cases in which the maintenance of a widow payable from the estate of a deceased husband was fixed. We do not wish to refer to them in detail.

They show that the amount fixed varied from l/5th to l/3rd of the income, and in our opinion the maintenance in this case is not at all inadequate, taking into consideration the fact that for a period of 14 years the lady got ten times more than any Court would have given her, if called upon to administer this estate. Any Court would have made provision for the payment of the debts first and, if this payment had been spread over the period of 14 years as was in fact the case, very little would have been available to pay the lady''s maintenance during that period.

Ugrah Mohan Thakur seems to have been alive to this fact, and the provision which he made for the lady in his will was very modest, being only Rs. 100. For his own sradh he had provided only Rs. 500. Apart from the provisions made in this will we have to see what her husband himself considered to be sufficient for her.

In the earlier will of Ugrah Mohan Thakur known as the Darjeeling will, which is referred to in the judgment of Chaudhury, J., (Ex. U), she was allowed only Rs. 500 per month. It is true that the maintenance of the wife does not depend upon the sweet will of her husband, but the Courts in fixing maintenance have to consider the circumstances of the estate and the wishes of the husband. Even during the lifetime of her husband she was not getting a large amount for expenses. She admits that her husband used to give her Rs. 100 per month. This was perhaps for her pocket expenses only, but according to Ex. V, the deposition of Mr. Savi in the Calcutta will case, during his lifetime Ugrah Mohan Thakur used to give her Rs. 25 to Rs. 50 for this purpose. In her evidence in the Calcutta will case she admitted that during her husband''s absence in England she got Rs. 25 per month for her pocket expenses.

Now let us see what was the maintenance of the other ladies of this family and its other branches. Jagbati, mother of Ugrah Mohan Thakur, got only Rs. 300 permonth. Sundermati, widow of Paran Mohan Thakur, the income of whose estate was larger than that of Ugrah Mohan Thakur, got only Rs. 500 per month (Ex. 1). To the widow of Sri Mohan Thakur, a member of another branch of this very family, an allowance of Rs. 200 per month was paid by the Court of Wards, though the income of the estate was Rs. 1,35,000 the estate being in debt. This is admitted by Badrinath Upadhyaya,a witness for the plaintiff. Let us consider the maintenance allowed to the widows of other families of equal or higher status. In the Banaili Raj a family of Maithil Brahmans with a very large income, the allowance to the widows was low. The income of one of these estates was Rs. 3,75,000, and the allowance to the widow was Rs. 300 per month (Ex. T), but, as appears from the evidence of Phanindra Nath Chatterji, this was gradually raised to Rs. 800 when her son died.

In another case of maintenance connected with the family of the Maharajadhiraj of Darbhanga, where the income of the estate was Rs. 33,000 per annum and the estate was in debt, the Court allowed Rs. 4,200 per annum or about 1/8th of the income (Ex. Y-2); and this was upheld by the Privy Council in Mt. Ekradeshwar Bahuasin v. Homeshwar Singh AIR 1929 PC 128. A decree of the Privy Council in the case of Ekradeshwar Singh v. Mt. Janeshwari Bahuasin AIR 1914 PC 76 has been produced by the appellant (Ex. 22-b), to show the amount of maintenance fixed in that case, viz., Rs. 15,000 per annum. The circumstances, there were quite different and the status of that family was distinctly higher than that of the Barari Zamindars. We are therefore of opinion that taking into consideration the income of the estate, its indebtedness, the allowances granted to the ladies of other branches of the family and of families having higher income and the provision made by the lady''s husband, the allowance in the present case was not only fair but liberal. It was very high for the period of indebtedness of the estate, and not insufficient thereafter.

It is contended that a Maithil widow is entitled to get from her husband''s estate not only maintenance but also expenses for his annual sradh, and that the absence of such a provision in the present compromise is unjust inasmuch as the plaintiff is bound under the Hindu law to perform her husband''s annual sradh and its expenses would be a burden upon her. Reliance has been placed upon some passages of the Vivada Chintamani (Tagore''s Translation, pp. 288, 289 and 290) and on the cases of Dalel Kunwar v. Ambika Partab Singh (1903) 25 All 266 and of Sundar ji Damji v. Dahibai (1904) 29 Bom 316/. Now the Vivada Chintamani is not a book on ritual but on law proper. The passages relied upon occurring in the chapter on "Succession to the estate of one who loaves no son." The first passage relied upon runs thus:

The right of performing funeral obsequies is settled according to the following authority:

the son, the son of a son and the son of a grandson; hence their right of inheritance, which is similar to the right of performing funeral obsequies, is likewise established. Therefore in default of a great grandson, the estate devolves on the widow.

Emphasis is laid on the last clause, and it is argued that the widows right of succession is based upon her right to perform the funeral obsequies. The second passage relied upon, which occurs alter it is laid down that a faithful wife should take the wealth of her husband, runs thus:

Taking his effects, moveable and immovable, the precious and base metals, the grains, liquids and clothes, let her cause several sradhs to be offered in each month, in the sixth month and at the close of the year. Here by the mention of the sradhs that a wife must perform, it is meant that she shall also perform the ton sradhs of her husband recently deceased, and also celebrate the obsequies annually, and take the whole estate of her lord. What has been said above is applicable in the case of a husband who has taken his share from his co-heirs.

These passages to our mind do not support the plaintiff''s contention that a widow is entitled to get the costs of her husband''s annual sradh from those who may have taken his estate. The last clause clearly shows that all the injunction about the performance of sradh apply only if the husband was separate from his co-heirs. If he was joint with them, the widow does not get anything and in that case no duty seems to be cast upon her by the passage. It would appear to be a duty to be performed by her only if she takes the husband''s estate.

Therefore it cannot be urged as a general proposition on the strength of this passage that in the absence of a grandson the wife is required to perform the sradh in every case. It is contended on the basis of the passages quoted that the widow''s capacity to perform the sradh is the ground for inheriting the estate. It is however an admitted fact in this case that Tagore''s translation of the Vivada Chintamani is full of mistakes. The learned advocates of both parties conceded this, and the fact of Tagore''s inaccuracy has been noticed in several decided cases. The first passage quoted above was the subject of controversy in Rajrani Debya v. Gomati Debya (23), and it was held that the translation was not correct: Fortunately this part of the Vivada Chintamani has been translated by Mr. Setlur in his collection of Hindu Law books on inheritance.

His translation of this passage, which was accepted by this Court in the above case will be found at p. 265 (part 2 of the book) and runs thus:

Dying (without issues) without son, grandson or great grandson. The right to perform sradh being established in the order laid down in the text, ''the son, the grandson, or the great grandson,'' the right to succeed to the wealth which is similar to it is also settled.

The last sentence "therefore in default of a great grandson the estate devolves on the widow" as mentioned in Tagore''s translation is not to be found in Setlur''s translation and is, in the original a part of the next paragraph without the word "therefore" and this changes the entire complexion of the passage. If "therefore" of Tagore''s translation is not there the plaintiff''s contention fails. Similarly Tagore''s translation of another passage about sradh quoted above does not tally with that of Setlur''s. The latter runs thus: 23. AIR 1928 Pat 466

By the enumeration of sradh, it is meant that she shall perform the obsequies, anniversaries, etc., of the deceased. The meaning is that she shall take the entire wealth.

If this translation be correct, it seems clear that the obligation to perform the annual sradh is dependent upon taking the wealth. It is not the appellant''s case that the question is directly in issue, and as it has not been fully argued before us, we do not propose to pursue this matter further. In the Allahabad case a widow was held to be entitled to maintenance from the adopted son from time of the death of her husband and was allowed the amount spent by her on funeral ceremonies and sradh which the adopted son was bound to perform. This case is of no help to the plaintiff. There the question was whether the widow was entitled to get a set off for the amount spent by her on ceremonies which it was the duty of the adopted son to perform.

In the Bombay case Chandavarkar, J., held that in the absence of the son, grandson or great-grandson, it was the duty of the widow to get the ceremonies performed, and that if the son was a minor, it was her duty to see that they are performed. This is quite a different thing from the plaintiff''s contention that when the estate is in the possession of the nephew, she can get from him the expenses of the sradh. The defendant on the other hand contends that under the Hindu law a widow is not entitled to offer pindas to hor husband though she may give charities or feed the Brahmins and the poor on the anniversary of her husband. In fact there is a very serious controversy as to what the lady did at Allahabad. She alleged that she not only performed the sajjadan and fed the Brahmins but offered pindas as well. On the other hand, the evidence on behalf of the defendant is that she did not offer the pindas.

The evidence on behalf of the lady consists of the depositions of herself and her cousin Sudhakar Jha whose evidence we have already commented upon. Be that as it may, we do not wish to examine in detail the right of the widow to perform the annual sradh. Supposing she is entitled to do so, a sum of Rs. 1,000 need not be spent over it. There is evidence on the record that the expenditure on the annual sradh in the family of the deceased is about Rs. 25 to 50. That being the case, the amount is too trifling to be considered. Taking the condition and the indebtedness of the estate, which we have already stated, and the provision made by Ugrah Mohan himself in his will, the expenditure of Rs. 1,000'' per annum on the annual sradh seems to us to be extravagant and excessive. Therefore, the making of no separate provision for it in the compromise is not in the least unjust.

We repeat once more that we are not called upon to decide the lady''s claims in the suit. It is possible that if detailed evidence had been adduced by the parties, the lady might have succeeded, but it is no less possible that she might have lost. The personal properties have been referred to in Schedule C of the plaint. They consist of four gardens, jewellery and moveables. The value of the gardens has not been given in the plaint, but from the documents produced in the case it appears that they are worth a few thousand rupees. The value of the jewellery and the moveables is given in the plaint as about Rs. 31,000. As to the title to the gardens, reliance has been placed upon the fact that their title deeds stand in her name. They are Exs. 10 and 25(a).

It seems that the gardens were purchased first from Fakir Mandar in the benami name of one Lakhi Prasad Dubey and afterwards transferred in the name of the plaintiff. Ex. 9 is the wrapper in which the deeds were kept, and on it, it is written in the handwriting of Ugrah Mohan Thakur himself that it contained documents relating to the properties of the plaintiff. No doubt this is prima facie evidence in favour of the plaintiff, but it is not unusual for people to acquire properties in the names of their wives as their benamidars. Ex. N series are accounts of the estate and show that the income from the gardens was entered in them. The lady herself in her deposition in the Calcutta will case stated that her husband sometimes used to give her the income of the gardens and sometimes not. She further said that he purchased the gardens for her. It is obvious therefore that the gardens were purchased from the funds of Ugrah Mohan Thakur.

Whether he purchased them for himself or for the plaintiff is quite a different matter. The evidence is not all available, and it is difficult to judge what would have been the result had the issues been directly tried in the suit itself.

Coming to the jewellery, reliance has been placed upon the list of properties filed by Mr. Savi in the Bhagalpur probate case. There are about half a dozen articles in that list which seem to tally with the articles mentioned in the list given by the plaintiff in one of her schedules to the plaint; and in Mr. Savi''s list they are described as belonging to "Mrs. Thakur."

Here again, as we have said, the evidence has not all been adduced for the obvious reason that the matter was not directly in issue. From the fact that the articles were mentioned as those of "Mrs. Thakur" one cannot make out anything. No evidence has been adduced that Mr. Savi used to designate the lady as Mrs. Thakur. Some witnesses have referred to her as "Thakurain" and some as "Dai". Mr. Manuk suggested that "Mrs. Thakur" might refer to Bati Jan, a mistress of the deceased. It may be so. On the other hand, in big estates jewellery is often kept as belonging to the estate, to be used by the ladies of the house for the time being, and thus need not necessarily be the personal property of the ladies. Therefore, it is difficult to say what would have been the decision of a Court if all these matters had been gone into in detail on a definite issue. The total value of the moveable properties claimed cannot, on a liberal estimate, exceed Rs. 40,000 in all.

There is nothing to show that the lady would have insisted on getting these things when she got Rs. 17,000 in cash, a decree for one lakh and future maintenance at a rate far in excess of what she would have got in view of the indebtedness of the estate; and we do not consider the compromise to be unjust on this ground.

As we have said before, the dedicated properties are of two kinds: one was dedicated by Madan Mohan Thakur, an ancestor of Ugrah Mohan Thakur, and the other by Ugrah Mohan Thakur, himself.

It has been contended on behalf of the plaintiff that the will had no effect whatsoever on the shebaitship of the trust properties; that being the heiress of the deceased husband, she was entitled to it and that therefore her suit was bound to succeed in this respect. Reliance was placed on the case of Panchanan Banerjee and Another Vs. Surendra Nath Mukerjee and Others, . On the other hand, it is contended for the respondent that the shebaitship cannot devolve upon the plaintiff. So far as the trust created by Madan Mohan Thakur is concerned, on Ugrah Mohan Thakur''s death it devolved on the available heir of the dedicator (Madan Mohan Thakur). A genealogy of the family will be found in the affidavit of Kishore Mohan Thakur; which is on the record of this case. The deed of dedication is not before us. In the case of Jagannath Prasad Gupta v. Runjit Singh (25), it was held that where a shebait did not appoint his or her successor and where there was no other provision for the appointment of shebait, the management of the endowed trust would revert to the heir of the founder.

A similar view seems to have been taken by the Judicial Committee in the case of Gossami Sri Gridhariji v. Romanlalji Gossami (26), where it was held that in the absence of any provision to the contrary the shebaitship went to the heir of the founder. The plaintiff can in no sense be said to be the heiress of the founder. No doubt it was held in the case of Panchanan Banerjee and Another Vs. Surendra Nath Mukerjee and Others, , that in order to succeed to the shebaitship it was not necessary to prove that the claimant was the heir of the founder; it was enough if he proved that he was the heir of the last shebait. But there the question was decided more on the construction of the will of the founder and that of the last shebait. The claim was however dismissed on other grounds. We will refer to this case later.

Coming to the question of the shebaitship of the trust created by Ugrah Mohan Thakur himself, the trust deed is before us. There the provision is that the shebaitship would go to his heir (waris). The word "waris" need not necessarily mean an heir entitled to succeed in case of intestacy. In case the deceased had power to dispose of his properties by will and he does so in fact, he nominates the person who is to succeed to his properties. It will be a question whether by making Suraj Mohan Thakur a residuary legatee under the will and providing only maintenance for his wife, Ugrah Mohan Thakur did not constitute the former his testamentary heir, entitled to succeed to all his properties, and whether under the circumstances the word "waris" mentioned in the trust deed would not apply to Suraj Mohan Thakur. This will also apply to the trust created by Madan Mohan Thakur if its shebaitship was to go to the heir of Ugrah Mohan Thakur. We must guard ourselves against being understood to be in any way positively deciding this question. We are not called upon to do so, nor are there complete materials on the record at present to come to definite conclusions on such points.

We are simply showing that the contention put forward by the plaintiff, that her right to the shebaitship was indefeasible cannot be sustained. We will have to revert to this question later on when we come to deal with the lawfulness of the compromise. At present it is sufficient to say that the claim of the lady to the shebaitship cannot be said to be so clear as to enable us to say that it was unjust to deprive her of it. Again, the shebaitship is nothing but an office, and if id went to Suraj Mohan Thakur, who was to be the legatee of the bulk of the properties and who was to manage the estate, the compromise cannot be said to be unjust or improper on that ground.

It has been already stated that the plaintiff''s claim to the estate was based on the allegation that the will was forged, that the probate was obtained by fraud on account of her two Karpardazes, Tajeshwar Jha and Kishori Jha, having colluded with the defendant, and last but not least that the Mithila law made the bequest of the entire property to Suraj Mohan Thakur void; firstly, as under that law she was a coparcener of her husband with power to force a partition upon him, and secondly, as under that law a gift of the entire property by a man having a wife, or at least without her consent, is void. We have already said that her story about the probate having been obtained by fraud had, on the face of it, very little chance of success as she made her charges against Tajeshwar Jha and Kishori Jha during her deposition for the Bhagalpur case and long before the decision of that case.

It was not a case of any fraud having been practised upon the Court nor of a fraud practised upon her, or coming to her knowledge, after the decision. If so, there is very little doubt that the plaintiff would not have been permitted to reopen the facts which were already decided in the probate case.

The main contention before us has been about the effect of the will under the Mithila law. More than half of the arguments of both sides have been devoted to this part of the ease. The plaintiff''s case, as we have said, is that her right to the estate on the basis of the Mithila law was so very clear that she could not have compromised on the terms which have been put forward by the defendant.

Her case further is that at any rate those terms practically meant a confiscation of her estate, and that she was denuded of a very valuable estate in lieu of a very inadequate consideration of an insufficient maintenance. She urges that we should therefore not record the compromise. In our opinion an actual decision on the Mithila law is not necessary as we are not now deciding the lady''s claim to the estate. So far as the probability of the lady compromising the suit is concerned, it can be judged without such a decision. What is of importance is not what the law actually is, but what the lady believed the law to be. Even if the law be not what is urged on her behalf if she believed it to be so, the question of the probability of her entering into the compromise comes in.

Now the lady had clearly stated that she knew the law and that she was told this by an eminent barrister. If in spite of that she compromised the suit, as we have held she did, the question of the state of the law does not arise. Them is however no evidence that any eminent barrister told her that the proposition of law set up on her behalf was so very clear that she would not have compromised the suit on terms falling short of giving her the estate itself. The proposition of law urged by her is not supported by any decided case. The law contended for has to be deduced from the original texts--from passages on the meaning of which no two translators agree.

Except for the admittedly incorrect and unsatisfactory translation of the Vivada Chintamani by Tagore, the 1863 edition of which is before us, some of the relevant passages are not to be found in any published translation of the book.

The parties have produced translations of these passages by translators of their own choice, and these are admittedly not satisfactory, as will be presently seen. Even authentic texts are not available. For instance, the first proposition is sought to be supported by a passage in the Vivada Chintamani published in Calcutta in the year 1837, of which a copy is an exhibit in the case. Another edition of the book published at Bombay in 1898 is more easily available and has been constantly referred to at the Bar.

It was admitted that the text of the Bombay edition differs from the text of the Bengal edition at places to such an extent that the meaning is changed. The disputed passage has been translated by four translators: two on behalf of the plaintiff, namely, Pandit Ishvari Datta Dhurga Datta and Pandit Ram Autar Sharma, and by two on behalf of the defendant, namely, Dr. Ganga Nath Jha and Pandit Bhagwat Kumar Shastri. These translations are unsatisfactory. Not only does one set of translators for one party differ from another set produced by the other party, but the two translators of one party sometimes differ from one another.

Not only this, but the translators, when under cross-examination, admitted a number of mistakes and at times took up a position which was manifestly untenable. No party relied upon Tagore''s translation as it was admittedly unreliable. A portion of the book, as we have said, has been translated by Mr. Setlur in his Collection of Hindu Law Books on Inheritance. But unfortunately an important passage relied upon in this case had not been translated by him. The materials placed before us therefore are uncertain texts and inconsistent translations prepared for the parties by translators who at places admitted their mistakes. There is no reported decision on the point in question, nor any evidence to the effect that there was any instance in which such law was ever recognised by any Court or acted upon by anybody.

One should therefore not be surprised that this topic of the Hindu law was argued by the parties for a very large number of days. Can such a proposition of law be said to be so clear and so certain that the legal advice received by the lady would have made it altogether improbable for her to compromise the case by abandoning her suit on getting a decent maintenance, or for her friends and lawyers to advise her to compromise, or again, so clear and certain that we should treat this compromise as a confiscation of the lady''s estate? After all, the lady, even if successful in the suit, would only have got a life estate, and at least half of the estate would have gone to Suraj Mohan if he survived her, for he and his brother Naresh Mohan were now Ugrah Mohan''s nearest reversioners.

At most it is an arguable point which may or may not have been accepted by Courts. The lower Court has not accepted it. Can it be said that the lady would rather have run the risks involved in fighting the case up to the highest Court than compromise it on a decant maintenance? We would have left the point at this stage and would not have proceeded to give a decision on the Mithila law itself. But both parties have spent a considerable amount of time and money over researches and translations, and have argued the points before us at great length and in great detail; and they have both asked us to give our decisions on them. We therefore proceed to do so, especially as the learned Subordinate Judge allowed the lady to adduce evidence by examining translators, and his order was upheld by this Court: vide the order passed by Das and Adami, JJ., on 17th December 1926, in Civil Revision Cases Nos. 634 and 635 of 1926.

Ugrah Mohan Thakur was a Maithil Brahmin and was governed by the law of the Mithila School which, as their Lordships of the Judicial Committee observed in AIR 1925 280 (Privy Council)

is the law of the Mitakshara except in a few matters in respect of which the law of the Mithila School has departed from the law of the Mitak shara.

It has been contended on behalf of the appellant that, according to the law of Mithila School, the wife is a coparcener of the husband, and co-owner (with him) of his property, and that it is not competent to the husband to alienate his entire property without the consent of his wife among other relatives.

This contention is rested almost wholly on Vachaspati Misra''s Vivada-Chintamani, a fifteenth-century digest of undoubted authority in Mithila. Reference has also been made to Chandesvara Thakur''s Vivada-Ratnakara, an earlier Mithila digest, and the Dvaita-Parisishta of Keshava Misra (grandson of Vachaspati Misra), or rather, that version of it which we owe to his pupil Kalyana Misra under the designation of Suslishta-Parisishta, Keshava Misra''s own compilation being said to be unavailable. None of these works is self-contained; and it is an essential part of the appellant''s argument that the Mithila School does proceed on such Mitakshara doctrines as that the son takes an interest in the family property by birth and that partition implies a pre-existing title, though it is not claimed that these doctrines are noticed in the authorities referred to.

It is therefore desirable to consider the position of the wife under the Mitakshara before turning to the Mithila authorities.

Now, under the Mitakshara, a woman is by marriage transferred from her father''s gotra to that of her husband, so much so that a married woman can have no other gotraja relations than those of husband: see Banerjee''s Hindu Law of Marriage and Stridhana, Edn. 5, p. 506. By her marriage she becomes one with the husband, as is shown, among other things, by certain sutras (aphorisms), of Apastamba, which are, most if not all of them, referred to by most of the commentators including Vijnanesvara and Vachaspati Misra. Dr. Buhler has rendered these aphorisms in Vol. 2, of Max Muller''s Sacred Books of the East Series at pp, 136-137 (Prasna 2, Patala 6, Khanda 14), as follows:

No division takes place between husband and wife. 17. For, from the time of marriage, they are united in religious ceremonies. 18. Likewise also as regards the rewards for works by which spiritual merit is acquired. 19. And with respect to the acquisition of property. 20. For they declare that it is not a theft it a wife expends money on occasions (of necessity) during her husband''s absence.

These aphorisms point not merely to the union of husband and wife in religious matters but also to some dominion on the wife''s part in the husband''s property. As wife or widow, a woman is, under the Mitakshara, entitled to residence in the family house, and also to maintenance, this last right being generally founded on a verse of Yajnavalkaya 2, 142, which will be found translated in Colebrooke''s Mitakshara 2, 10, 14, and which has been adopted by the commentators of all the schools. (The editions of the Mitakshara now in use number the first verse in the Dayabibhaga Chapter as 114, while Colebrooke''s copy made it 115, and the discrepancy continues throughout the Chapter with its thirty-six verses.) Yajnavalkya further excepts debts contracted for family purposes from the category of the debts incurred by a wife which her husband is under no obligation to pay off--see p. 73 of Gharpure''s Mitakshara (English Translation) in his "Collections of Hindu Law Texts;" and this obligation to pay debts contracted by the wife for family purposes is somewhat similar to the obligation of coparceners to pay debts contracted by one another for family purposes, which is laid down by Yajnavalkya in the preceding verse 2, 45.

This may however rightly be regarded as a question not so much of the wife''s interest in the husband''s property as of her implied agency. The wife''s interest in the husband''s property is also shown by the fact that when a father divides his property equally among his sons, he is required to give equal shares to his wives, if no separate property should have been given to them by him or his father (see Yajnavalkya 2, 115, a verse which will be found translated in Colebrooke''s Mitakshara 1, 2, 8). Should the sons divide the family property among themselves after the death of the father, the mother is also entitled to an equal share under another verse of Yajnavalkya, 2, 123 (see Colebrooke 1, 7, 1). Although the wife thus does take an interest in her husband''s property, it is held in the Mitakshara Schools, other than the Mithila School, that her ownership is not of an independent character, the Viramitrodaya (which is a special authority in the Benares School going so far as to say expressly that "her right is only fictional but not a real one," to adopt Mr. Golap Chandra Sarkar''s translation at p. 165, (Ch. 3, Part 1, Section 13).

We have to examine the position of the wife in the Mithila School, but in the other Mitakshara Schools it is settled that she is not a coparcener of her husband. "When we speak," says Mr. Mayne in his Hindu Law, Section 269:

of a Hindu joint family as constituting a coparcenary, we refer not to the entire number of persons who can trace from a common ancestor, and amongst whom no partition has ever taken place, we include only those persons, who by virtue of relationship have the right to enjoy and hold the joint property, to restrain the acts of each other in respect of it, to burthen it with their debts, and at their pleasure to enforce its partition. Outside this body there is a fringe of persons who possess inferior rights such as that of maintenance.

Mr. Mayne definitely includes the wife in this fringe of persons with inferior rights, and we have not been referred to any writer who includes her among the coparceners. The wife has no right to call for partition, as is shown by Vijnanesvara in the concluding portion of his commentary on Yajnavalkya, II, 52, where he says:

Therefore a wife also may have a share at the option of the husband, and not at her own will. As the author (himself) says further on, "if he makes the allotments equal, his wife should be given equal shares": (Gharpure''s Mitakshara, p. 84).

(The text quoted in this extract is Yajnavalkya, II, 115, which has been already referred to). The position of the Mitakshara wife as regards the right to call for a partition was expressly considered in Sunder Bahu v. Monohur Lal Upadhya 10 CLR 79, where Mitter and Maclean, JJ. held that:

no doubt a wife under the Hindu law is entitled to a share when a partition takes place, but she has no right to take the initiative herself and demand partition, although when a partition does take place she is allowed a share.

It is also settled that a Mitakshara wife takes not by survivorship but by inheritance. Yajnavalkya''s well known verses about the order of succession--"the wife, and the daughters also, both parents...." (Yajnavalkya, II, 135-6) are taken by Vijnanesvara to refer to the estate of a man who, being separated from his co-heirs and not subsequently reunited with them, dies leaving no male issue (Colebrooke''s Mitakshara, II, 1. 39), while the son, the grandson and the great-grandson, take the estate in virtue of their right by birth. Colebrooke introduced the term "coparcener" to indicate such members of a joint Hindu family, and the term is now fully established in Hindu law, though its inaccuracy from the point of view of English law has received judicial notice in such decisions as Baijnath Prasad Singh v. Tej Bali Singh AIR 1921 PC 62 at p. 243 (of 43 All.):

Where property is held in coparcenary by a joint Hindu family, there are ordinarily three rights vested in corparceners--the right of enjoyment, the right to call for partition, and the right to survivorship": See Naraganti Achammagaru v. Venkatachalapati Nayanivaru (1881) 4 Mad 250.

It is clear that the wife''s interest in the family property does not under the Mitakshara include two of these three rights of a coparcener, and that though her right to maintenance (which is unquestionable) has sometimes been referred to her position as a cosharer in a subordinate sense, the contention that she is a coparcener has been frequently raised but never accepted by the Courts: see such decisions as Ananda Bibee v. Nownit Lal (1882) 9 Cal 315, Jogdamba Koer v. Sey. of State (1889) 16 Cal 367, Punna Bibee v. Radha Kissen Das (1903) 31 Cal 476. It has been urged on behalf of the appellant that under the Mithila law the wife is entitled not only to receive a share when a partition does take place at the instance of others, but also to demand a partition herself; and reliance is placed in support of this contention primarily on a certain sentence from Vachaspati Misra''s Vivada Chintamani, which is thus rendered by Tagore (p. 313):

It is said in the Ratnakara: That division of property may take place between husband and wife appears from the following text: "Wives should be made equal sharers.

Mr. J.C. Ghose in Vol. 2 of his Principles of Hindu Law, 1917, reproduces Tagore''s translation of the Chapter on Inheritance, (like those of Colebrooke and Borradaile), with hardly any material change, on the ground that the translation has become authoritative, though he claims to have revised it and to have given the correct translation of those few passages where Tagore was wrong (see p. 19 of the book.) Mr. Setlur in his "Complete Collection of Hindu Law Books" on Inheritance, 1911, gives a closer rendering of this Chapter of the Vivada Chintamani, but leaves out the section on the "Ascertainment of partition" which occurs at the end of the chapter and which contains the sentence in question: see pp. 243--274 of Setlur, Part 2. The following is a close translation of the sentence, words not occurring in the original but necessarily implied being shown in brackets:

(There is/There may be) partition however between husband and wife by reason of the text "Wives (shall/should) be made equal sharers"--so (says) the Ratnakara.

The alternatives shown above and below the line in the brackets represent the contentions of the appellant and the respondent respectively. Tagore''s rendering substantially agrees with what the respondent has contended for in this Court. According to the appellant''s contentions, the sentence makes partition between husband and wife unconditional, and the text referred to, which is the second quarter of a verse of Yajnavalkya''s, II, 115, is also taken to lay down an unconditional obligation to make wives equal sharers. But the original has no verb expressed for the subject "partition," and the context alone can show whether it was meant to be "is" or "may be." The predicate of "wives" in the quotation from Yajnavalkya is also similarly capable of being rendered by "shall be made" or should be made," the ambiguity being due to the employment of a participle of the same kind as was noticed in Balusu Gurulingaswami v. Balusu Rama lekshamma and Radha Mohan v. Hardai Bibi (1899) 21 All 460, where Lord Hobhouse had occasion to comment on the unfortunate fact that in translating a law-book like the Mitakshara Colebrooke had translated the words (na deyah), occurring in three successive sentences, by "should not be given" in the first and third and by "must not be given" in the second sentence.

It has also not been seriously contended by Mr. Jha that the original sentence is so framed as to begin by giving the view of the Vivada Chintamani and then to add that that is also the view of the Ratnakara. The only possible way, grammatically, of construing the sentence is to take it as expressing only that which Vachaspati Misra thinks is the view of the Ratnakara. The form of the sentence does not indicate whether Vachaspati Misra adopts that view as his own. It may be that the implication from the context is not so restricted, but it is equally possible, prima facie, that the particle ''tu'', which has been rendered by ''however,'' actually indicates a view contrary to that of Vachaspati Misra.

It is necessary for these reasons to examine closely what it is really that Vachaspati Misra himself held on the point. In doing so, we are at the outset confronted with the inherent improbability that Vachaspati Misra--or, for the matter of that, any other medieval authority on Hindu law--should have held what the appellant''s interpretation of the passage comes to, viz., that wives must unconditionally be divided in estate from their husbands. Reference has also been made at the bar to the settled doctrine that the Hindu law contains in itself the principles of its own exposition, and also to a principle of construction, well-known in Hindu law,--the principle of (akanksha) or expectancy, which Vachaspati Misra has himself applied when developing a certain view, peculiar to Mithila, in connexion with Stridhan. This occurs in a passage at p. 140 of the Calcutta edition of the Vivada Chintamani, which is very imperfectly rendered by Tagore as follows:

The texts of Katyayana do not refer to the peculiar property of woman. The inconsistency owing to this is removed by the similarity of meaning" (see p. 262).

It is also not very closely rendered by Setlur, who says "otherwise the question as to how it should be determined will remain unanswered" (see pp. 256-57.) It will however, be found fully translated and explained by Mr. Golap Chandra Sarkar in Ch. 12 of his Hindu Law, Edn. 6 at p. 643 et seq. The Vivada Ratnakara also adopts the same principle in the same context (see the translation by Sarkar and D. Chatterjee, Ch. 8, para. 8 at pp. 34--35).

The "expectancy" in connexion with the sentence under discussion would be regarding the circumstances in which, according to Vachaspati Misra, there is to be partition between husband and wife, and regarding those in which wives are to be made equal sharers. There would also arise an expectancy regarding the persons with whom wives are to have equal shares or whether the text means that the wives are to be equal sharers inter se.

It thus seems essential, in order to ascertain Vachaspati Misra''s meaning to consider the context in which the sentence occurs, his treatment elsewhere of the verse of Yajnavalkya regarding wives being made equal sharers, what the Ratnakara has actually said on the point, and, further, Vachaspati Misra''s treatment of Daya Vibhaga (partition of heritage or inheritance) generally. Whether other works of authority in the Mithila School do or do not take the same view, and if they should take a different view, which view ought to prevail, will also be matters for consideration.

Tagore''s translation of the section on the "Ascertainment of Partition" and of other passages from the Vivada Chintamani is unfortunately so inadequate in places that both the parties have had translations specially prepared by pandits who were examined before commissioner. The evidence of these pandits runs to over 230 pages of the printed paper-books. This large volume is due in part, and only in part, to the fact that the witnesses were examined not in Court but before commissioners. It is also due in part to the fact that the witnesses not always unwillingly played the role not of mere translators but also of interpreters, and that too with not a few limitations which are apparent on the face of the record.

Pandit Ishwari Dutta Daurgadatta Shastri appellant''s first translator, was Principal of the Dharma Samaj Sanskrit College. He has to admit that he has made no special study of the subject, so much so that he is unable to say if the Vivada Ratnakara is earlier than the Vivada Chintamani; the latter refers to the Ratnakara in the opening verses, but the pandit''s learning does not enable him to say whether that Ratnakara is the same as the, Vivada Ratnakara or whether they are different Mithila commentaries on Hindu law. At more than one place he appeals to Sanskrit literature at large and to the Dharmashastras in particular, but his acquaintance with these studies is not such as to save him from translating (kutumbavirodhena) in Yajnavalkya, II, 175 as "not against will of his members of the family (sic)": it is not pretended that any commentator has taken it in any other sense than that of "without detriment to the family"--compare (pitridravyavirodhena), ''without detriment to the father''s estate,'' in Colebrooke''s Mitakshara, I. 4. 1. His knowledge of the Mitakshara comes out in his translation of Yajnavalkya II, 175 (last quarter) by "...what has been promised to another should be given"--(see p. 493 of the evidence). The text means the exact opposite (see Gharpure, pp. 311--2; on the latter page the versenumber is wrongly printed as 176); and when the attention of the witness was drawn to this by a leading question in re-examination, he gave what he calls "the more accurate and literal translation"--"what has been promised to another should not be given."

It may be that the pandit was asked to translate the disputed passages merely because he was supposed to know Sanskrit grammar; but if so, the evidence shows that he is prepared to accept or justify such obvious misprints or inaccurate readings as (tadanumata saddeyam) on p. 37 and (patnyanamatyapeksha) on p. 38 of the Calcutta edition of the Chintamani, while making many difficulties about a reading of Katyayana''s verse beginning with (sarvasvam), on p. 37, which he and Professor Sharma call unmeaning or almost so, but which several commentators and translators--and the witness himself, in another context, in an unguarded moment (not withstanding his unsatisfactory statements about it at p. 489 of the evidence)--have found not incapable of a reasonable translation. The knowledge of Sanskrit grammar that he shows at p. 500 and other places of his evidence is far from impressive; his view leads to the manifest absurdity of requiring the consent of the donor to a voluntary gift, and when it is put to him whether he can conceive of such a gift without the donor''s consent, his answer is:

I think as a layman I don''t think myself quite competent to answer such question.

As a layman he further claims to see little or no difference between the expressions "without their consent" and "contrary to their consent"--he thinks he has used "without" in the sense of "contrary"--though the correctness of his rendering of an important disputed passage turns on an appreciation of this and the connected point whether (vimati) is used by Vachaspati Misra in the sense of disagreement among certain persons or disagreement of another with them. These limitations do not however prevent the pandit from maintaining that Colebrcoke, Jolly, Golap Chandra Sarkar Sastri and Mr. (afterwards Mr. Justice) Digambar Chatterji, Gharpure and other translators of standing are all wrong because, forsooth, their renderings differ from what the witness, on an apparently ad hoc study of a few passages from the Vivada Chintamani, takes to be the view of Vachaspati Misra.

Professor Ramautar Sharma, Sahityacharya of the Patna College is the other translator put forward for the appellant. He is even more emphatic that all other translators, whatever their standing, are wrong, where they differ from him (see pp. 422--4 of the evidence), but while claiming (as he says, among other things)

to catch every straw to emphasize the difference between a pandit and a scholar and its effect on culture and practical life,

takes care to avoid admitting how much of the translation certified by him is based on the translation of another scholar (who was not examined in the case) or of Pandit Ishwari Dutta Daurgadatta, whose English ho calls "incomprehensible." It did not apparently strike him that nothing could be more unlike a pandit or a scholar than the way in which he avoided admitting on recall what has been found as a fact by the learned Subordinate Judge and is no longer disputed, viz., that in his previous cross examination he had agreed that the words (tesham trayanam) on p. 36 of the Chintamani referred to the son, the wife and the (anvaya), the last a term about which there has been so much controversy, grammatical as well as philological.

On this occasion, he actually spoke of his previous deposition, as a vyavastha, meaning an opinion or decision such as is now-a-days given by pandits of recognized authority on matters, not of Hindu law, but of Hindu ritual and penance; and he declined to admit that there was any inconsistency in his translation unless he re-studied the whole of it--a heavy task, he claimed, for which he must be paid an expert''s fee in advance. Other scholars, according to him, give to the word (anvaya) too narrow a meaning by making it equivalent to issue, offspring or progeny; of his own wide outlook and "Sanskrit scholarship" (as he calls it at p. 435) we have evidence in his translation of (putrah) by "children (of different kinds)" in the heading of a section of the Chintamani (see Tagore p. 278) which deals with the 12 kinds of sons to the exclusion of daughters. His ready admission that (hetuvannigadam) on p. 36 of the Chintamani ought to be (hetumnanigadam) leads one to wonder how far he had made himself really familiar with this branch of Sanskrit learning so as to be aware of the fact that Raghunandan, the "Smartta Bhattacharyya"of Bengal, demonstrated the correctness of the former reading of Jaimini''s adhikarana long ago (see Dr. Priyanath Sen''s Interpretation of Negative Precepts in Hindu Law in the notes portion of 4 G.L.J. at p. 65n).

The Professor has no hesitation in emphasizing that the term imports that of which the gift is void, but when asked if he knows that "void" is a legal term, he answers "may be; I am not a lawyer."

The appellant''s case on Hindu law was argued before us by Mr. L.K. Jha, Advocate, who is himself a Maithil Brahmin and whose knowledge of Sanskrit and of the Mithila authorities has been at the disposal of this Court in a number of reported Mithila decisions, out of which it will perhaps be sufficient to refer to Hitendra Singh v. Rameshwar Singh AIR 1925 Pat 625. Mr. Jha was unable on one disputed point after another to support the translations of the appellant''s pandits or to maintain that the two translations were consistent with each other.

He was however prevented by express instructions from conceding anything in connexion with these translations. This is why it became necessary to refer in some detail to the appellant''s translator''s qualifications and their limitations as indicated by the manner in which they have acquitted themselves in making and supporting the translations. It was urged that we should proceed on these translations after correcting the mistakes elicited by cross-examination; but it is difficult to follow this course in view of the regrettable fact that the translations are often vitiated on disputed points by mere dogmatism, to say the least.

For the respondent Suraj Mohan, the passages were also translated by two pandits, Dr. Bhagabat Kumar Goswami, Shastri, senior Professor of Sanskrit, Hooghly College, and Dr. Ganganath Jha, at one time Professor of Sanskrit at Allahabad and Principal of the Sanskrit College at Benares, and now Vice-Chancellor of Allahabad University. Mr. L.N. Singh, an Advocate no less well-known for his knowledge of Sanskrit than Mr. Jha, who argued this part of the case for the respondent, has urged that we should proceed on Dr. Jha''s translations after correction in the light of the admissions made by him in cross-examination. But in the first place Dr. Jha''s translations are not always complete--see, for example, the end of the third paragraph of his translation of the passage from Vibhaga-Nirnaya. The witness has moreover sometimes at any rate failed to do himself justice; his rendering of the heading Vibhaga-Nirnaya by "Ascertainment of the fact of partition" was correct enough, if somewhat diffuse, but he readily gave it up for the rendering "Law of Partition" which was put to him in cross-examination and which not withstanding Professor Sharma''s pedantry at p. 426 of the evidence, is entirely unsuitable in context, as may be seen on a glance at the opening verse and the entire contents of the section so headed.

Dr. Jha''s published volumes on the Manu Smriti with Medhatithi''s commentary--a work undertaken by him for the Calcutta University--afforded much material for cross-examination, and he had to maintain that the publication was inaccurate at place after place, on some ground or other, rather than admit that his departures from it in cross-examination were biassed (see pp. 137-8 of his evidence). "No human work," says the witness:

is perfect, and if I were asked to revise the work, I myself would find thousands of places in 7 or 8 volumes of the translation where it could be improved: the worst of all there is the printer''s devil at work....... My knowledge of English is far from perfect, and as I have already said that in many places the translation could be improved even by myself.

We do not think that it will be fair to the appellant to proceed on Dr. Jha''s translations. The translators were undoubtedly placed at some disadvantage by the uncertainties and imperfections of the texts. So far as is known, there are only two published editions of the Vivada Chintamani--one being the Calcutta edition of 1837, which was apparently used by Tagore and J.C. Ghose and in large measure also by Setlur, and the other a Bombay edition of 1898 printed and published by the proprietor of the Sri-Venketesvara Press. Both these are unscholarly editions; neither gives any apparatus criticus, nor any variae lectiones. Both moreover contain palpable misprints or inaccuracies.

The Calcutta edition, for instance, has (sthavare-pitih ) and (tadanumata) instead of (sthavare-piti) and (tadanumatam) on p. 37, and (patnyanamatyapeksha) and (bhagyantaranumatyapeksha) instead of (patnanumatyapeksha) and (bhagyantaranumatyapeksha) on p. 38. Similar inaccuracies of an obvious kind also occur in the Bombay edition, but it is unnecessary to give examples, because the appellant has relied on the Calcutta edition and, as the book is now rare, has put in a copy as an exhibit in the case.

An example of an inaccuracy of another kind is furnished by the omission of the word "vimatau" after the expression "putradaradyanvayanam" on p. 56 of the Bombay edition; the context and a comparison with the corresponding passage at p. 36 of the Calcutta edition leave no doubt that the word must be supplied. On p. 55 the Bombay edition has "putradaradisarvasvapratisruteshu" in a context which makes it clear that the "adi" in the middle of the compound word ought to have been left out; for though there is a dispute between the parties about whether or not the word "adi" should be read between putradara and anvaya in the passage about vimati on the same page (corresponding to p. 36 of the Calcutta edition) there is no question of giving away not the son and the wife only but also other individuals indicated by the "adi."

We shall have occasion to refer to this mistake in the text again when dealing with the question of consent. Katyayana''s verse on p. 37 of the Calcutta edition beginning with (sarvasvam) affords an example of another kind; it is found in a different form in the Bombay edition (p. 57) which agrees with the Ratnakara (p. 129), and the translators have assumed the role of interpreters in selecting one of the two readings. But the questions raised are not questions of foreign law, and as was observed in Venkata Narasimha Appa Row v. Rangayya Appa Row (1905) 29 Mad 437 there does not seem to be any provision in the Evidence Act or other law which renders such evidence admissible in a case like the present.

The fact is that much of the work done and evidence given by these translators would have been really valuable as an argument from one side or the other, and it has in fact been so used by the Bar and will be so referred to in this judgment, the names of the translators being, however given for the sake of facility in tracing and appreciating the basis of each particular argument. Apart from the technical objection to expert evidence on Hindu law, the cross-examination of the translators erred sometimes in going too far and sometimes going not far enough. As an example of the latter, we have Dr. Jha''s reference to certain passages in the Vivada Chintamani where the term anvaya does not include the wife; it was not noticed by any translator nor put to Dr. Jha--if indeed the cross examiner himself realized it--that in those contexts where a woman''s (anvaya) is spoken of, the wife must necessarily be excluded.

A detailed treatment of the translator''s evidence would take too long, especially as the record is very defective, owing to various reasons. According to the judgment of the lower Court, Dr. Anant Prasad Banerji, Shastri, was a third translator examined for the appellant. It is common ground before us that this is a mistake; but it must be observed that the evidence recorded by the commissioners is such that it would indeed be very difficult to follow it without assistance from some one with an adequate knowledge of Sanskrit. Confusion was also bound to result from the existence of so many discordant translations on the record. Further though the evidence before the commissioners covers Misaru Misra''s Vivada Chandra, we are informed by the advocates that this digest of Mithila law was not properly before the Court, as it was only published for the first time in 1931 by Mr. Priyanath Mitra, one of the mofussil advocates in the case and as the original manuscript from the library of the Asiatic Society of Bengal, an extract from which will be found printed at p. 441 in Vol. 2, part. 3 of the record (with translations at pp. 424, 438, 444 and 459), was neither admitted by the defence nor proved by the plaintiff.

In these circumstances it was thought best to prepare a fresh translation with the co-operation of the bar, making use of such materials as were available. This was intended to be no more than a translation and to adhere as closely as possible to the original in the Calcutta edition, while avoiding the pitfalls brought out in the cross-examination of the four pandits. It was also one of the objects to bring out, as clearly as may be, those points on which the parties finally found it impossible to agree, some points having naturally been found during the arguments to be quite untenable, and therefore given up. Both the parties were invited to scrutinize the translation, and their criticism has been of no small help, much of it being adopted and the rest being left to be dealt with in this judgment. Our thanks are due to the learned advocates for their cooperation.

Now, the sentence under discussion concludes Vachaspati Misra''s comment on Yajnavalkya 2, 52, a verse which may be translated as follows:

Suretyship, debt (and) bearing witness--(this is) not ordained among brothers, and between husband and wife, as also between father and son, while (the estate is) undivided." (The reference in this translation to the estate is inserted on the basis of the Mitakshara: see Gharpure, p. 82.)

The first part of Vachaspati Misra''s comment on this verse is as follows:

The meaning is that before partition (there can be) no legal transaction such as suretyship, etc., between these. If (it be said) that, because of Apastamba''s text ''There is no partition between husband and wife,'' there cannot at all arise the contingency of a partition between them; (the reply is) because of their being authorized jointly to set up the (sacrificial) fire in accordance with such texts as (1) "wife and husband should set up the fire"; as also because of such Vedio texts as ''with the cincture (the priest) initiates (in sacrifices) the sacrificer; with the sacrificial thong, the wedded wife,'' (2) and also, ''the wedded wife (2) watches the sacrificial offering,'' (and) ''the sacrificer is tying the bundle of kusha grass,'' there is joint right of the two in Vedio rights performable in the fire brought into being on those (various) occasions; and because of such Smriti texts as ''A rite laid down in the Smritis (is to be performed) in the nuptial fire,'' (there is joint right of the two) in the Smriti rites, (and?) the avasathya and agnihotra sacrifices, such as are performable in the nuptial fire which is to be set up by both wife and husband. In the very same way there is their joint right in the fruits born of merit or sin because of the occurrence in that very section of a Vedic text like ''in heaven (the two) would commence an undying glory''; not however in such sacrifices on the regular altar and pious works of utility to others as are performable without such fires. There is certainly no possibility of the sentence meaning that there is no partition of property between them, because the text of Apastamba occurs in the section dealing with the sacrificial performances and also because it is followed (3) by the words ''from the nuptials indeed (is ordained their) association in rites; as also in the fruits of merit and demerit.

(1) There is a pronoun "tau" (meaning "those two") here in the Calcutta edition, which is apparently superfluous.

(2) Patni.

This comment begins with the statement that the meaning is that before partition there can be no legal transaction such as suretyship, etc., between brothers, husband and wife and father and son. Vachaspati Misra then deals, in the manner usual in such commentaries and digests, with a supposed objection that so far as husband and wife are concerned, there can never be any question of partition since Apastamba has laid down that "there is no partition between husband and wife." He meets the objection by citing various texts and pointing out that Apastamba''s text only deals with sacrificial performances. He further points out that the aphorism "there is no partition between husband and wife" is followed by the aphorisms "from the nuptials indeed (is ordained their) association in rites; as also in the fruits of merit and demerit." Up to this point Vachaspati Misra''s treatment of Apastamba''s text is essentially similar to Vijnaneswara''s comment on Yajnavalkya''s 52nd verse: see Gharpure, pp. 82-4.

It has however been urged for the appellant that the Mitakshara does not stop with Apastamba''s aphorism about the association of husband and wife in the fruits of merit and demerit, but proceeds to cite the next two aphorisms, a translation of which by Buhler has been already quoted, namely:

And with respect to the acquisition of property. 20. For they declare that it is not a theft if a wife expends money on occasions (of necessity) during her husband''s absence.

(3) The original speaks of (vakya-sesha) which literally means "the rest of the sentence."

The argument for the appellant is that Vaehaspati Misra, unlike Vijananesvara, chose not to take notice of these two aphorisms and thus, unlike him, restricted. Apastamba''s text to religious ceremonies. But though Vijnanesvara alone did proceed to take notice here of Apastamba''s 19th and 20th aphorisms which refer to property, it has to be observed that he did not use these additional aphorisms for negativing partition between husband and wife. On the contrary these aphorisms lead him expressly to say that the further text "has indicated the ownership of the wife over wealth, and not the absence of a division." It is therefore impossible to accept the contention of the appellant that the Mitakshara negatives partition between husband and wife by taking all the five aphorisms of Apastamba''s down to No. 20, while Vachaspati Misra holds that there can be partition between husband and wife by restricting the quotations from Apastamba to the first three aphorisms (from the 16th to the 18th) and interpreting them to be confined to sacrificial performances.

Another point that Mr. Jha has endeavoured to make on this part of Vachaspati Misra''s comment is that because Vachaspati Misra says that there is no possibility of Apastamba''s text meaning that there is no partition of property between husband and wife therefore according to that Mithila authority Apastamba himself provides for such partition between them. This contention must plainly be rejected; Vachaspati; Misra has said nothing of the kind, and it is one thing for a text not to forbid a partition and quite another positively to permit it. Pandit Ishwari Dutta Daurgadatti was apparently unable to see this elementary distinction, and reminds one of the way in which he treated the English expression "without their consent" as no different from the expression "contrary to their consent."

His rendering of the sentence is that there is not the least doubt about the text meaning that there is partition of wealth between husband and wife," and though it was on this and Professor Sharma''s translation that Mr. Jha based the argument under notice, it is plain that the Pandit is wrong if his rendering, which as a matter of English is perhaps not altogether free from ambiguity was intended to convey that according to Vachaspati Misra, the text means that there is partition between husband and wife. The original is put in such a form as to raise the question whether the text means that there is no partition between them, and to furnish the reply that there is not the least apprehension even--or as Dr. Jha puts it for clearness, no possibility--of that being the meaning. Professor Sharma''s certified translation is decidedly confusing.

After what, according to him, is a mistake which he did not care to correct about the merit of sacred rites stored up in heaven when such rites are not performable in fire "for (tadagnyasadhyeshvishtapoorteshu), an amazing mistake for a pandit or a scholar to commit or tolerate--we have in his translation." That there is no partition even in property between the two (viz., husband and wife")--this interpretation is altogether impossible." And this is followed by--"There is the right of partition of wealth between husband and wife--as to this being the meaning of the text there is no doubt."

Both these appear to be renderings of one and the same sentence (dhanavibhagastu tayornasteeli vakyarthasyashankapinasti.) They differ from each other substantially, and when questioned in this connexion, the witness for once thought that there was some discrepancy in his answer, and said that the whole thing would have to be studied before he could answer the question what corresponded to the second piece above. This was at the end of a long day, and after studying the text the witness said the next day that the first piece was intended to be the marginal note, but had been wrongly transposed by the press to the main body of the translation, and that the second piece was the actual translation of the Sanskrit sentence given above (see his evidence at p. 429).

This answer is even more amazing for a pandit or a scholar, whichever of these the Professor claimed to be. The doubt or apprehension that is emphatically denied in the original is about the text meaning that there is no partition between them (dhanavibhagastu tayornasti.) Professor Sharma''s translation would, moreover, make the rest of the comment (which will be immediately dealt with) entirely unnecessary and unintelligible, though this does not seem to have been put to him or to have struck him when he considered his translation as a whole. This is decisive of Mr. Jha''s contention which was based on the maxim (apratishidham paramatamanumatam) "the opinion of another (book of authority) is accepted where it is not contradicted" (see Ghose''s Hindu Law, p. 1033); Vachaspati Misra himself clearly did not apply the maxim here.

Vachaspati Misra''s further comment on Yajnavalkya II. 52, up to the concluding sentence "(There is/There may be) partition, however, between husband and wife by reason of the text "wive''s (shall/should) be made equal sharers"--so (says) the Ratnakara," may be thus rendered: "If (again it be said) that in the section on the wedded wife, there is (shown) the ownership of such wife also in wealth and consequently there would be partition even by her (1) from her husband if there be no textual prohibition of it, (the reply is, it is) not so. Know that the reason is that she is said to be incapable of holding property in such texts as "property-less indeed are these three--the wife, the slave and the son." As for the section on the wedded wife, it is concerned with showing who are jointly entitled in regard to sacrificial performances only, but there is in the section no overriding the text laying down that woman is property-less, since being ratiocinative, it cannot override a text. There has been much controversy about the exact import of this passage. It is however necessary first to make some remarks bearing on the translation itself.

What has been rendered by the expression "the wedded wife" (or in one place, such wife) following a common practice, is the word (patni), which is formed from (pati, meaning the husband), by a special modification under an express rule of Panini''s IV. 1. 33, (patyur no yajnasanyoge), to indicate her association with the husband in religious rites. Such a wife, does occupy a special position in Smriti literature--see, for example, Colebrooke''s Mitakshara, II. 1. 5 and Dayabhaga, XI. 1. 48, and Sarkar''s Tagore Law Lectures on Adoption, Chap. 2, pp. 49 et seqq. Mr. Jha was however unable finally to press the contention that the change of terms from patni to jaya, bharya or yoshit was o� any consequence in this context, after he was referred to a number of verses from Manu where these and other words are used to indicate a wife of as high a standing as the patni: see Manu IX. 45, IX, 8, IX. 46, IX. 6, 7 & 9, V. 156 read with IX. 3, & V. 153). As will be seen later, the Dvaita Parisishta modifies the objection on this ground, but the difference does not seem to be of any importance for appellant''s purposes.

(1) The case in the original is the genitive, which often connotes agency.

The words (tasya nyayatvena vachanabadhakatvat) which have been rendered "since being ratiocinative, it cannot override a text," following Dr. Ganganath Jha, have been rendered as follows by the appellant''s translators: (1) "It does not go against the above mentioned text on the ground of propriety"--Pandit Ishwari Dutta Daurgadatti, and (2) "It is so on the ground of the natural sense of the context and the absence of prohibitory texts"--Professor Ramautar Sharma. At p. 430 of his evidence Professor Sharma says that "The translation of the word Nyayatvena would be "as it is a current saying", that his translation is free and not quite literal, and that in the context it could not be right to translate nyaya as "logical reasoning"; and the literal translation of the whole clause would, according to him, be "being a current saying, it could not supersede the text."

There is however no reference at all in the context to any current saying; what the author is dealing with is the (patnyadhikarana), Jaimini''s discourse on the wedded wife, and the text that according to Vachaspati Misra cannot be superseded or over-ridden by it is the quotation which he has himself given us in part here, and fully as from Narada in the chapter on "non-payment of wages" though Tagore''s translation at p. 92 fails to make it clear that the quotation from Narada really extends up to the point where Devala is mentioned. Pandit Ishwari Dutta Daurgadatti''s rendering seems to make even less sense than Professor Sharma''s; the question was one of an apparent conflict between Jaimini''s patnyadhikarana and Narada''s text, and to say that the former does not go against the latter "on the ground of propriety" is not to reconcile them at all.

The initial sentence in the Sanskrit passage is that "in the section on the wedded wife there is (shown) the ownership of such wife also in wealth." The Calcutta edition clearly makes the sentence part of this and not of the preceding comment. It is common ground before us that the (patnyadhikarana), "the section on the wedded wife", referred to, is from Jaimini''s Mimansa (with Sabara-bhashya), VI. 1. III. 6 to 21, which will be found in an English garb in Dr. (now Mr. Justice) Dwarka Nath Mitter''s Thesis on the position of women in Hindu law at pp. 63-90. This section is also referred to in the uttara-palcsha or author''s reply in the comment; and Mr. Jha has not been able to point to anything in Vachaspati Misra''s earlier comment on Yajnavalkya II. 52 which can be logically connected with the reference to Jaimini''s patnyadhikarana, even though it is a fact that the respondent''s pandits have taken the sentence to be a part of that earlier comment. It may also be noted that the Calcutta edition is much more frugal in the use of vertical bars to indicate the end of sentences than the Bombay edition which has sometimes used them quite wrongly--see, for example, line 4 on p. 254 near the beginning of Vachaspati Misra''s comment on Yajnavalkya II. 52.

As has been already observed, there has been much controversy about the exact import of this comment. Professor Sharma takes the passage to mean that the purva-paksha--the "objection" that with the wife''s ownership in the husband''s wealth there would have been partition by the wife from the husband had there been no express prohibition--is at first simply denied, and that the purva pakshi (supposed objector) then quotes the line from Narada, whereupon Vachaspati Misra replies that the patnyadhikarana lays down "no prohibitory text against woman''s capacity of holding wealth," and then concludes that there is of course partition between husband and wife by virtue of the text "wives shall be made equal sharers," adding that this is the view of the Ratnakara. This interpretation is so untenable on the face of it that Mr. Jha, with all his respect for his old teacher the Professor who is now dead, was unable to support it.

How could anybody even be imagined to suggest that the patnyadhikarana lays down a prohibitory text against woman''s capacity of holding wealth as the Professor''s rendering would require us to do? The objector moreover expressly asserted in the beginning that the patnyadhikarana laid down the wife''s ownership in wealth, so that it is impossible to conceive of Vachaspati Misra pointing out to him that it lays down no prohibitory text etc. The Professor''s interpretation has the disadvantage also of ignoring the supposed objection based on the text of Narada. His rendering is further defective and irreconcilable with the structure of Vachaspati Misra''s concluding sentence, in so far as it suggests, intentionally or otherwise, that it expresses the view of Vachaspati Misra himself. As has been already observed none of this comment of Vachaspati Misra''s can be justified or even understood if the Professor''s rendering of the earlier comment relating to Apastamba''s text be correct.

It is doubtful how far the Professor troubled to see that his renderings of the two comments were intelligible and not inconsistent with each other. The comment undoubtedly begins, as usual in such discussions, with a supposed objection which may be conveniently divided into three parts--(1) the premise, on the authority of the patnyadhikarana, that the wife also has ownership over wealth; (9) the conclusion that there would be partition by her from the husband; and (3) a condition or proviso that there be no textual prohibition of it. This last is easily intelligible if it is taken to refer to Vachaspati Misra''s previous treatment of Apastamba''s text and his conclusion that that text has no bearing on wealth as a subject of partition. The "objection" would then come to this:

According to you, Apasthamba''s text relates to sacrificial performances only and does not prohibit partition of property between husband and wife. Very well, then, do you mean to say, would you agree that there would be partition between them since the wife also is entitled to the property according to the patynadhikarna.

Vachaspati Misra begins his reply by saying "not so;" but if the way in which the objection has been interpreted above be correct, this denial could not be a denial of the condition or proviso--which should on this footing be really called a concession, as Vachaspati Misra has already shown that Apastamba''s text is no bar--but could only be a denial, not necessarily in toto, of the premise or the conclusion or both.

It is not impossible that the denial was primarily intended to refer to the premise, for Vachaspati Misra gives as his reason the text of Narada and proceeds to point out that the patnyadhikarana which is the basis of the premise has no bearing on the incapacity of woman to hold property on her own account which incapacity is based on a text that he points out, cannot be shaken by mere logic. If this be the right way of interpreting the comment, it would appear that by completely demolishing the premise of the supposed objector, Vachaspati Misra was inclined, on the authority of Narada, to take the view that there can be no partition between husband and wife, notwithstanding the limitation of Apastamba''s text to sacrificial performances and notwithstanding the patnyadhikarana. Such a view was in fact taken by Apararka in his commentary on Yajnavalkya 2. 52: (see pp. 654-5, Vol. 46 in the Poona Anandasrama Sanskrit series), though on other grounds.

This well-known commentator on Yajnavalkya says that the word (avibhakte) "while (the estate is) undivided" in the verse does not refer to husband and wife since there can be no division of wealth between them; for the wife as wife has ownership in the husband''s wealth, so that it is impossible to divide the wealth that is common to them. He adds that Apastamba has for this very reason laid down that:

there is no partition between husband and wife; for from the time of marriage they are united in religious ceremonies, likewise also as regards the rewards for works for which spiritual merit is acquired and with respect to the acquisition of property:

If this be the view of Vachaspati Misra, his concluding sentence, on which the appellant''s case rests, will have to be construed as follows: The Ratnakara, however holds that there may be partition between husband and wife on the basis of the text wives should be made equal sharers." The second word in this concluding sentence is the particle "tu" which, according to a well-known Sanskrit lexicon called the Medini, has no less than eight meanings:

The fifth of these meanings is pakshantare, for indicating an alternative or a contrary position, and this meaning has been pressed upon us by Mr. Jha in several places where the Vivada Chintamani gives the views of the Smriti-Sara or other works with this particle "tu." The force of this particle as an adversative conjunction is familiar, particularly in this kind of literature, and it may be that Vachaspati Misra had it in mind when he employed the particle in his concluding sentence. This interpretation of Vachaspati Misra''s somewhat obscure comment is however unsatisfactory, since it does not explain the avibhakte in the verse of Yajnavalkya commented upon. The disputed sentence is moreover printed in the Calcutta edition as an integral part of the reply to the second objection. That of course is far from decisive but so far as it goes, it does suggest that Vachaspati Misra''s own view is to be found in that sentence, notwithstanding the use of the particle "tu" which does not always carry an adversative sense.

It is also to be observed that Vachaspati Misra, though he has mentioned the Ratnakara as among the works that he carefully looked into before composing his Vivada Chintamani, has not hesitated to express his "disagreement with that Mithila authority when necessary. As an example, reference may be made to a passage at p. 128 of the Calcutta edition (corresponding to p. 199 of the Bombay edition) where Apastamba (II. 6. 13. 13) is commented upon. Tagore''s translation of this passage at p. 233 is wholly inadequate, but Setlur''s rendering (at p. 246) is close enough. "The Ratnakara reads "while living;" but that is incorrect; for the fact of his being alive being evident from his making the partition, the word is superfluous." A conflict between the Ratnakara and the Vivada Chintamani need not therefore be assumed where this can be avoided, and it does not require a strained interpretation to construe Yachaspati Misra''s reply in the comment under consideration without a conflict between him and the Mithila minister of justice and commentator Chandeswar Thakur who wrote the Ratnakara.

On this footing, the concluding sentence, though in form an expression of what was taken by Vachaspati Misra to be the view of the Ratnakara, would in effect be a statement of Vachaspati Misra''s own position. His reference to the text from Narada would in that case be confined to showing that the premise from which the purva-pakshi started was entirely untenable; and Vachaspati Misra''s conclusion would be not a negation in toto of the purva-pakshi''s conclusion but an admission of it submodo. From this point of view the entire discussion on the verse about suretyship may be fairly summarised as follows:

Yajnavalkya''s verse (II. 52) lays down that there cannot be suretyship etc., between husband and wife, inter alia, before partition. If this implies the possibility of a partition between husband and wife, Apastamba''s text is not really opposed to it because it is confined to sacrificial performances. The patnyadhikarana (of Jaimini) shows that the wife has ownership over the husband''s property, but this cannot give her a right to partition and prevail over a text (of Narada) which lays down that the wife--like the son and the slave--is not entitled to hold property on her own account. Even so, as the Ratnakara has shown, partition of wealth is possible between husband and wife under the text (of Yajnavalkya) about wives being made equal sharers.

It may be added that neither Mr. Jha, with all his remarkable ingenuity, nor Mr. L.N. Singh with his long experience of such disquisitions has been able to suggest any other construction which would make Vachaspati Misra''s comment intelligible.

Now, does the reasoning summarised above require that wives shall always be divided in estate from their husbands? The only point discussed by Vachaspati Misra on Yajnavalkya''s verse about suretyship is the application of the word (avibhakte), "while (the estate is) undivided," to husband and wife: can they ever be divided? It is unlikely on the face of it that such a question would have been raised at all if Vachaspati Misra''s answer to it was intended to be that they must always be divided; and as already indicated, such an answer is scarcely conceivable from any medieval Hindu commentator with his training not only in the Vyavahara (jurisprudence or litigation) but also in the Achara (religious and moral observances) and the Prayaschittia (Penance) branches of Hindu law.

To the question whether husband and wife can ever be divided, it was obviously a sufficient answer to say that they may sometimes be divided as laid down by a (Smriti) text and as shown by a predecessor of standing in Mithila; this would at once remove whatever difficulty may have appeared at first sight--in view of such texts as those of Apastamba and Narada--in applying the word "avibhakte" to husband and wife, and would suffice to make the verse not unintelligible. Vahaspati Misra is a writer of standing in Mithila, a province "celebrated as a seat of learning from ancient times" (see p. 11 of Sarkar and Chatterjee''s Introduction to their Translation of the Vivada Ratnakara); and it is impossible to imagine that he would have failed to see what as a matter of ordinary logic was a sufficient answer to the question discussed by him.

In giving his answer he does not seem to have considered it necessary--nor could it be regarded as essential--to quote his authority in full. He does not even name that authority--Yajnavalkya--probably because not only was the text so well-known but Yajnavalkya''s full text on the point had also been already dealt with earlier in the same chapter of the Vivada Chintamani. For Vachaspati Misra''s discussion of this full text, we must turn to his section on (Jivat-pitrika-vibhaga,) "partition during the life-time of the father": see pp. 228-30 of Tagore''s translation. He there first deals with Yajnavalkya II. 114:

when the father makes a partition, let him separate his sons (from himself) at his pleasure, and either (dismiss) the eldest with the largest share, or (if he choose) all may be equal sharers" (Colebrooke''s Mitakshara I. 2. 1).

His comment on this is that the father''s "pleasure"--the "svechcha" of the verse--is in respect of his self-acquisitions. He goes on to quote from Vishnu, Manu and Brihaspati: (see Setlur p. 245, Tagore has failed to identify the last), and extends the father''s pleasure to what Colebrooke called "ancestral" property recovered by the father by his own ability.

He then repeats the verse, Yajnayalkya II. 114. and says--in the words of Tagore at p, 230--that it:

relates to property over which the father has full dominion, for it occurs under the subject of self-acquired property.

Setlur has rendered this passage much more accurately by saying that the text--the whole verse--applies only to wealth over which a father has independent power-- (p. 127 of the Calcutta edition). Vachaspati Misra then introduces the next verse by saying that Yajnavalkya himself adds a special rule-- (atraiva) in this very context, i.e., when the father chooses to divide his self-acquisitions-- i.e., in the case where equal shares are given (to the sons), viz.,

If he makes the allotments equal, his wives, to whom no separate property has been given by the husband or the father-in-law, must be rendered partakers of like portions. (Colebrooke I. 2. 8).

His comment on this verse is not fully translated by Tagore but may be seen in Setlur. On the word (samansikah) equal sharers, Vachaspati Misra says that where stridhan has been given to some wives, other wives should have equal wealth given to them (:) by the father, but that when the father takes the larger portion for himself and gives the sons only a little, then he must give the wives as much wealth () out of his own portion. Hence alone it is that separate allotment is ordained only in case he makes the shares equal, by the text: "If he makes the shares equal"--(Setlur p. 245). Thus Vachaspati Misra''s interpretation of the verse in which Yajnavalkya lays down that wives (shall/should) be made equal sharers appears to be as follows: In the first place, the father is under no obligation to divide his self-acquisitions.

He may however choose to divide them. If he does so, he is further under no obligation to divide them into equal shares. In the event of his choosing to divide them into equal shares for his sons, he is required to make his wives equal sharers. But even in this last case, there is the proviso or qualification that the wives to be made equal sharers have not received as much stridhan from the father or from the father-in-law. If, as has been urged for the appellant, the word :, (karyah), imports a (vidhi) or positive obligation, it is only when the husband chooses to divide his self-acquisitions with his sons, and further to divide them equally, that the obligation arises, and even then it is not an unqualified obligation, for wives need not still be given the same shares as sons if they should already have received some stridhan.

Clearly, this falls far short of recognizing the wive''s right unconditionally to demand a partition from the husband. What is recognized is a much conditioned obligation of the father which, according to the commentator, is restricted to his self-acquisitions. The obligation such as it is, may be taken to import? a corresponding right, but the right to receive a share in certain conditions cannot be looked upon as a right to demand a share where, as here, the conditions are not such as can be brought about by the demandant. A coparcener''s right to demand partition, which is what the appellant seeks to establish from Yajnavalkya''s quarter verse (which Mr. Jha would read as "wives shall be made equal sharers)," is manifestly a far higher right than Vachaspati Misra can be at all said to have read into Yajnavalkya II. 115.

Mr. Jha has argued that this treatment of Yajnavalkya''s relates only to partition made during the lifetime of the father and that in such a context the wife''s rights could only be discussed incidentally, while in the later section on Vibhaga-nirnaya, Vachaspati Misra had occasion to give his view of the full rights of the wife, as he has done by taking the second quarter of Yajnavalkya II. 115 only and ignoring the conditions laid down in the preceding verse and the preceding quarter of this verse. Mr. Jha recalls the observation of the Judicial Committee in Bhyah Ram Singh v. Bhyah Agar Singh (1870) 18 MIA 373 that these digests subordinate the language of the texts to custom and approved usage. He also urges, upon well-known authority, that it is not open to the Courts administering Hindu law to inquire whether a disputed doctrine is fairly deducible from the earliest authorities. We are not however considering whether under the text of Yajnavalkya the wife has a right to demand a partition from the husband.

The question before us is what exactly was meant by Vachaspati Misra when he quoted Yajnavalkya''s quarter-verse-in his comment on Yajnavalkya''s suretyship verse II. 52. It has been already shown that this Vibhaga-nirnaya context does not make an unqualified right to demand partition at all necessary. As Vachaspati Misra has actually commented so fully on Yajnavalkya II. 114-5 in the earlier Jivat-pitrika-vibhaga section, his quotation of the quarter-verse alone in the later Vibhaga-nirnaya section cannot be put down to a desire to subordinate the language of the text to custom and usage, to say nothing of the fact that it is not easy to conceive of a Hindu custom requiring a husband unconditionally to divide his wife and thus impliedly giving the wife an unqualified, right to demand partition from him.

It is true that in a discussion on partition during the lifetime of the father, the wife comes in only incidentally, but is that a good reason for holding that Vachaspati Misra with all his reputation for acuteness saw no inconsistency at all in giving her a very limited right in the earlier discussion and freeing that right, quietly and unnecessarily, from the conditions then recognized on that very text when he came to deal with the topic of Vibhaga-nirnaya or merely how to determine whether or not a partition has been already effected; Vachaspati Misra''s high standing as a commentator must itself make such a construction of his comment impossible. Nor can it really be seriously maintained that the word (samansikah), equal sharers, does not involve a reference to other parts of Yajnavalkya''s verse.

As the earlier discussion shows, the wives'' equality of shares was there taken by Vachaspati Misra to mean that (subject to allowance for stridhan already received from the husband or the father-in-law) each wife was to get the same share as each of the sons. Taken by itself, the quarter-verse may mean that each wife was to have the same share as the husband, irrespective even of the existence of any sons, but this was not Yajnavalkya''s meaning, nor is there any reason to think that it was taken to be so by Vachaspati Misra. Another possible meaning of the quarter-verse, if taken by itself, is that wives should have equal shares inter se, but this could not possibly have been intended in a context which has nothing to do with preference among wives. The very expression ''equal sharers'' in Vibhaga-nirnaya thus involves a reference to other parts of the Vivada Chintamani, and cannot, without some definite reason, be so interpreted as to produce a conflict that no commentator of standing would have tolerated. The wife may thus some times get a share of her husband''s self-acquisitions, according to Vachaspati Misra.

The property in suit is mostly ancestral, and it has therefore been also argued that though Vachaspati Misra has not expressly dealt with the matter, the Mithila law, while giving the son, in agreement with the mitakshara, a right to demand a partition of ancestral property in the hands of the father, goes further than the mitakshara by allowing the same right to wives--the right to demand a partition of ancestral property in the hands of the husband. Vibhaga, partition, under the Hindu law, it is urged, implies an antecedent title, and the very form of the expression employed by Vachaspati Misra (Vibhagastu dampatyoh), "There (is/may be) partition, however, between husband and wife,"--Mr. Jha contends, places the wife on a par with the husband and thus gives her a co-ordinate right to the ancestral property in his hands.

It is not pretended that the Vivada Chintamani contains anything specifically to show that vibhaga, a word which etymologically means a division or distribution irrespective of any question of right, implies an antecedent title; but reliance is placed on Vijnanesvara''s discussion of the question "Whether property arises from partition, or the division be of an existent right"--Colebrooke, I. 1. 17. Vijnanesvara negatived the position that property arises from partition, but this did not prevent him from holding in his comment on Yajnavalkya II. 52 (which has already been referred to) that though the wife has "ownership" over wealth (dravya-svamitva) she is not entitled to partition (dravya-vibhaga) at her own will, but (may receive a share) at the option of the husband on the strength of Yajnavalkya''s later verse:

if he makes the allotments equal, his wives should be made equal sharers (or as Gharpure puts it, ''should be given equal shares'').

As was observed by a Full Bench of the Allahabad High Court in Sham Lal v. Banna (1882) 4 All 296

too much stress should not be put on any of the (mitakshara and other) texts which speak of the ownership of the wife in her husband''s property.

She is a co-owner in a subordinate sense, and though she is entitled to a share in certain circumstances and may thus be a necessary party to a suit for partition of the family property, she has no such interest as will enable her to maintain such a suit. Mr. Jha lays stress on the fact that while commenting on Yajnavalkya II. 52 Vijnanesvara, unlike Vachaspati Misra, expressly says that the wife has no right to claim partition from her husband, but may have Vibhaga--may be given a share--as laid down in a later verse of Yajnavalkya''s.

This, however, is not a substantial difference. Vijnanesvara deals with Yajnavalkya''s verses in the order shown by their numbers, and has thus to explain the word (avibhakte) in the suretyship verse (II. 52) before coming to Daya Vibhaga which begins with II. 114. Vachaspati Misra deals with II. 114 & 115 long before he comes to the suretyship verse in the last section of his. Chapter on Daya Vibhaga. His exposition of II. 115, like Vijnanesvara''s, gives the wife a share in the conditions laid down by Yajnavalkya, and no more; and his concluding sentence on the suretyship verse is merely a summary reference to that exposition, coupled with a reference to the identical view of the Ratnakara.

Mr. Jha has, moreover not referred us to any passage in the Vivada Chintamani showing that according to this Mithila authority the wife has (as under the mitakshara) ownership in the property of the husband: on the contrary we are asked to believe that Vachaspati Misra deliberately stopped short of quoting the 19th sutra from Apastamba II. 6. 14, though this sutra would have made the wife an associate of the husband with respect to the acquisition of property and not merely to religious acts and their fruit as laid down in the two previous sutras. Assuming, however, that Vachaspati Misra did, like Vijnanesvara, consider that the wife, has ownership in the husband''s property,--Mr. Jha''s reference to a maxim from the Sradha Viveka regarding wealth being common to the married pair will be dealt with later--the only right to a share that he definitely recognizes for the wife--and it is a share in property within Apastamba''s 19th sutra--is not absolute, but subject to the conditions found in Yajnavalkya II. 114-5, and on the face of it does not amount to such an interest as will entitle her to demand partition irrespective of whether the husband has made any division or not.

If the Mitakshara conception of Vibhaga as implying an antecedent title is also to be read into the Vivada Chintamani, the Mitakshara itself, it must be remembered, was not prevented by that conception from holding that the wife''s antecedent title--dravya-svamitva--was not sufficient to confer upon her the right to demand partition from her husband. Nor is the wife the only person who, inspite of a definitely recognized antecedent title-- (svamitva), ownership--in her husband''s property, is held by the Mitakshara to be disentitled to claim partition; the son also takes an interest by birth in the paternal (as well as the ancestral) property--(Colebrooke I. 1. 27. and I. 5. 10), but that does not entitle him to claim a partition of the paternal property if the father be unwilling and the mother not past child-bearing. An antecedent title-- (svamitva), (svamya) (svatva) are all among Mitakshara ways of describing it--does not therefore under the Mitakshara necessarily give a right to obtain partition.

There is a palpable fallacy in the argument for the appellant that the wife''s vibhaga implies her antecedent title, which in its turn implies her right to claim a partition. If you take the antecedent title from the Mitakshara conception of vibhaga, it must plainly not be overlooked that the Mitakshara does not regard such a title as importing an unconditional right to claim partition. The title to be inferred from the use of the word vibhaga is merely a right to receive a share in the conditions laid down, and not an unqualified right of partition. The appellant is not, in our opinion, entitled even with the assistance of the Mitakshara, so to read Vachaspati Misra''s concluding sentence as to get rid of the conditions recognized by him, no less than by Vijnanesvara, in the comment on Yajnavalkya 2, 114 and 115.

As regards the form : it is a necessity of language, in speaking of a partition between two parties, to mention them together, and it is obvious that such mention does not necessarily imply that they had co-ordinate rights. It is in fact because the wife''s right under the Mitakshara is not co-ordinate with that of the husband that though she may on occasion be given share, she is not entitled to claim partition; her dravya vibhaga does not, in spite of the use of the genitive, mean partition of wealth by her, in the Mitakshara on the suretyship verse II. 52, nor necessarily in ordinary parlance. Has Vachaspati Misra said anything to show that the wife''s position in this respect in Mithila is at all different from her position under the Mitakshara? Mr. Jha has not been able to place his finger on any express statement in the Vivada Chintamani, nor is it pretended that his contention is supported by any judicial decision.

He has however urged that Vachaspati Misra deliberately adopted a different treatment of Yajnavalkya from Vijnaneswara as regards the rights of sons and wives to claim partition, and had so little respect for that authority as to refer to his commentary only once throughout the Vivada Chintamani and that, too, in a very casual manner in the chapter of Abuse, by saying "the Mitakshara also (is) to the same effect," or as Tagore puts it at p. 138: "The Mitakshara also confirms it." But is there any real difference between the treatment of Yajnavalkya by Vijnanesvara and Vachaspati Misra on the point in question? In the first place there is no direct provision in Yajnavalkya for the son''s right to demand a partition from his father.

His verse II. 121, laying down that "the ownership of father and son is the same in land which was acquired by the grandfather," etc., (Colebrooke''s Mitakshara I. 5. 3), taken with the son''s right by birth which Vijnanesvara has already deduced (Colebrooke I. 1. 27) by an elaborate discussion of the question "whether property arise from partition, or the division be of an existent right" (Colebrooke, I, 1. 17), enables that authoritative commentator to hold that "a distribution of the grandfather''s estate does nevertheless take place by the will of the son," even when the father does not desire partition--(Coledrooko, I. 5. 8), or as he puts it again a little later, that "the father however reluctant, must divide with his sons, at their pleasure, the effects acquired by the paternal grandfather"--(Colebrooke, I. 5. 11). In the event of the sons exercising this right of obtaining a partition of the ancestral property, Vijnanesvara has already held in his comment on Yajnavalkya II. 115 that:

if the wealth descended to him from his father, an unequal partition at his pleasure is not proper; for equal ownership will be declared"; Colebrooke, I. 2. 6.

Thus according to the Mitakshara, the ancestral property may be divided not only at the father''s pleasure--that was apparently beyond question--but also on the son''s demand, and in either case the division must be into equal shares. Regarding the mother''s share at such a partition, there is not much to be found in the Mitaksbara. Vijnanesvara''s introduction to Yajnavalkya II. 115 speaks of division at the pleasure of the father only, and this prevents the direct application of that verse to partition at the instance of the sons so as to entitle the mother to an equal share at such a partition. The principle can however be applied in such cases as Mr. Jha concedes, under the doctrine of (atidesa) extension by analogy, and this in substance is what was done in Laljeet Singh v. Rajcoomar Singh (1873) 12 Bom LR 373. Another indication in the same direction is furnished by Vijnanesvara''s comment on the first half of Yajnavalkya II. 121, where he interprets the vibhagabhak as importing allotments to both parents when the sons divide from the father:

(Vibhagabhak) what is distributed, is a distribution. The distribution is of (sic) the allotments of the father and mother. He shares that and so he is a vibhagabhak (who is entitled to a share in the distribution). In other words he obtains, after (the demise of) his parents, both their portions.

as Gharpure puts it at p. 199, rendering the original more closely than Colebrooke I. 6. 2. This points to the allotment of a share to the mother even when the sons enforce a partition of the ancestral property against the father, and was the basis of the decision in Sumrun Thakoor v. Chunder Mun Missir (1881) 8 Cal 17. But after what Vijnanesvara says on Yajnavalkya II, 52, there could be no provision, whether express or implied, in his chapter of inheritance enabling the wife to demand partition from the husband, either in respect of his self-acquisitions or in respect of the ancestral property. Such is the position of the son and the wife under the Mitakshara.

In the Vivada Ghintamani, Mr. Jha cannot point to any discussion about whether property arises from partition or whether partition presupposes a right of property which (as the Mitakshara holds accrues to the son by birth both in the paternal and in the "ancestral" wealth; (Colebrooke I, 1. 27). Yajnavalkya II. 121 is also not referred to in the Vivada Chintamani. There are however frequent references in this Mithila digest to the difference in the father''s position vis a vis the sons according as the property in question is self-acquired or otherwise. We have already quoted a passage where the father''s independent power (svatantrya) over his self-acquisitions is spoken of. A little earlier just before the quotation from Manu (IX, 209), we have "and the powerlessness of the sons is also only in respect of such property" (Setlur, p. 245), as the conclusion of a comment on Vishnu which begins:

(Svayamupattam) self-acquired. Similarly also as to property recovered, conformably to the text of Manu. There the fact of the non-injury to the paternal wealth is material. But the wealth acquired by using the paternal wealth is certainly common (sadharana)": (Setlur, p. 244)

Ancestral property and property acquired by using it is thus, according to the Vivada Chintamani as according to the Mitakshara, common to father and son, while over his self-acquisitions the father has svatantrya or independent power. Vachaspati Misra has a small section on "property not subject to partition", (Tagore, p. 249), which, as Mr. Jha has pointed out, also indicates the son''s interest by birth in the ancestral property. When Vachaspati Misra comes to Yajnavalkya 2, 122 in his section on "the participation of sons born after a partition" (Tagore, p. 275), he does not, unlike Vijnanesvara, say anything, suggesting the allotment of a share to the mother; in fact he makes no comment on the word Vibhagabhak except that it means "is worthy of a share" (Setlur p. 261) or perhaps more accurately, "is entitled to a share".

But this does not affect the right of a son to claim partition of ancestral property, and it may be assumed that Vachaspati Misra did not differ from the Mitakshara as regards that right. If so, the line of reasoning adopted in Laljeet Singh''s case (1873) 12 Bom LR 373 would be applicable, and the wife could, under the Vivada Chintamani also, be held entitled to a share in the event of her husband either choosing or being compelled by the sons, to make a partition of the ancestral property, even though, like Vijnanesvara, Vachaspati Misra takes Yajnavalkya II. 115 to apply to a division of the father''s self-acquisitions only into equal shares. The son''s right to claim a partition of the ancestral property and the wife''s right to a share on such a partition has not, we are informed by Mr. Jha, been disputed in any Mithila case, and seems to have been freely conceded in Krishna Lal Jha Vs. Babu Nandeshwar Jha, .

But does this go beyond showing that the Mithila wife is entitled to receive a share when the sons obtain equal shares from the father as they can in ancestral property, whether the father be agreeable or not and subject to the further proviso or qualifications contained in the second half of Yajnavalkya II, 115, namely "to whom no stridhan has been given by the father or by the father-in-law".

The appellant desires to establish that unlike the Mitakshara the Mithila law entitles the wife to claim a partition of the ancestral property. Vachaspati Misra''s full treatment of Yajnavalkya II,115 confines that verge to the self-acquisitions of the father and does not give his wife the right to claim a partition, even of that kind of property, as we have already shown.

Mr. Jha cannot point to any passage in the Vivada Chintamani really dealing with the wife''s right against the husband in respect of ancestral property. He has urged that Vachaspati Misra''s concluding sentence on Yajnavalkya''s suretyship verse is not confined to self-acquired property. It seems to us however that that sentence merely bears on the possibility or otherwise of a separation in estate between husband and wife, irrespective entirely of whether the property is ancestral or self-acquired. The question of such a possibility of a separation merely arose on the word (avibhakte) in Yajnavalkya''s verse, and the section on Vibhaga Nirnaya was primarily meant for a discussion of the wholly different question of how to determine whether or not a disputed partition has in fact been affected.

The wife''s right to the ancestral property is admittedly not dealt within the section on partition during the lifetime of the father. Mr. Jha has urged that this was only to be expected from the title of the section. But it is to be borne in mind that it is in this section that such right as the wife has to a share in her husband''s self-acquisitions is discussed, and that in spite of the title the section also contains discussions on topics treated in the Ratnakara, in Chs. 3 and 4 under the titles "partition after the father''s death" and "partition among brothers by different mothers".

It will be seen later that the right to demand a partition of the ancestral property from the husband, which Mr. Jha claims for the Mithila wife, is not reflected in the stridhan section of the Vivada Chintamani, even though that section is not confined to woman''s peculium but extends to (bhartri-daya) a word interpreted by Vachaspati Misra not in the ordinary sense of "husband''s heritage" but in the wider sense of "husband''s wealth" whether devolving on the wife by inheritance, or coming to her by gift inter vivos.

When Mr. Jha could not find any passage in the Vivada Chintamani dealing with the wife''s right in the husband''s lifetime to a share in the ancestral property, and could not point to any substantial difference in respect of such a right between the treatment of Yajnavalkya''s verses by Vachaspati Misra and Vijnanesvara, he laid stress on the fact that the wife is said as a result of the marriage to be born into the husband''s gotra, and on the further fact that Narada''s verse in Vachaspati Misra''s comment on Yajnavalkya''s suretyship verse places the wife on the same footing as the son. Vachaspati Misra however is not alone in introducing such a text, for in his comment on Yajnavalkya II, 49, Vijnanesvara notices the corresponding verse from Manu, VIII, 416, making the following comment on it:

Likewise the text referred to above does not day down the incapacity of women and others to hold property; inasmuch as the object of the text is to argue their dependence alone. Moreover this will be made clear in the chapter on partition": (Gharpure p. 76).

The second half of the verse of Narada or Manu says that what they (the wife, the slave and the son) earn is (acquired) for him to whom they belong (Dr. Buhler, p. 326). Texts of this kind have plainly little or no bearing on the respective rights of the son and the wife to claim partition: the son''s right to claim partition is traceable to his right by birth, which is impliedly recognized by Vachaspati Misra, but that is not the case with the wife, in spite of her fictioned birth on marriage in the family of her husband. Nor is it under the Mithila law alone that marriage is taken to imply the birth of the wife into the gotra of the husband. The Mitakshara was also apparently of the same view, (the dispute really being about her gotra after death) but is not prevented by that doctrine of the wife''s fictional birth from holding expressly that the wife has no right to claim a partition, while basing the son''s right to claim a partition, of ancestral property in the hands of the father on his right by birth.

Mr. Jha has not referred us to any passage in the Vivada Chintamani from which it can be inferred that Vachaspati Misra took the view that by her fictional birth into the husband''s gotra the wife acquires such a right or interest in his ancestral property as will enable her to claim any partition from him. Her right to maintenance is a different matter, and may, as Mr. Jha himself has contended, be asserted against the husband''s property whether self-acquired or ancestral. Her so-called right to a vibhaga of his self-acquisitions must, on Vachaspati Misra''s discussion in the Jivat-pitrika-vibhaga, be taken to be subject to the conditions in Yajnavalkya II. 114-5. It seems to us that Vachaspati Misra''s concluding sentence in the comment on Yajnavalkya II. 52 contemplates no vibhaga for her except what is based on Yajnavalkya II. 115 and that a right to claim partition of ancestral property in the husband''s hands cannot be read into it on any of the many grounds so earnestly urged by Mr. Jha. We see no reason why the wife''s apparently unquestioned right to a share in the ancestral property when a son obtains partition from the father should not be derived by (atidesa), analogy, from the provisions of Yajnavalkya II. 114-5 under the Vivada Chintamani as under the Mitakshara in Laljeet''s case (1873) 12 BLR 373. The wife''s position in respect of ancestral property under the Vibhaga Nirnaya passage of Vachaspati Misra does not seem to us any better than under the Mitakshara.

Vachaspati Misra''s concluding sentence in the comment on Yajnavalkya''s suretyship verse, as has been already observed, is in form a statement of what he took to be the view of the Ratnakara, another leading authority in the Mithila School. The view actually taken in the Ratnakara is specially important in this connexion because the appellant, as has been already indicated, can only take advantage of Vachaspati Misra''s sentence on the footing that his view was the same as that of the Ratnakara. Sarkar and Chatterjee have rendered the relevant part of the comment of the Ratnakara on Yajnavalkya''s suretyship verse as follows:

Although Apastamba says that there is no partition between husband and wife, still, because in some cases, partition between husband and wife is shown by Yajnavalkya in the passage--''if the shares are made equal, wives should be made equal sharers''--this text of Yajnavalkya is to be understood to intend such partition: thus there is no conflict: Ch. XXXVI, 4 at p. 92.

Chandesvara Thakur thus did not adopt the familiar device of reconciling the apparent discrepancy between the text of Apastamba and the implication from the suretyship verse of Yajnavalkya by confining the former, in the manner adopted by Vachaspati Misra, to sacrificial performances. What he did was to give preference to Yajnavalkya''s text which he took to provide for partition kvapi, "in some case," as Sarkar and Chatterjee put it, or perhaps better still, "on some occasions." Vachaspati Misra, does not reproduce the comment of the Ratnakara in full, but merely gives a summary of it by saying in effect that the Ratnakara recognizes partition between husband and wife on the basis of the text about wives being made equal sharers. The Ratnakara does not in fact restrict the quotation from Yajnavalkya to the second-quarter of the verse II. 115, but gives the first-quarter as well, which may be literally rendered "if (he) should make equal shares..." It is thus clear that the Ratnakara did not lay down an unconditional partition between husband and wife, and as from the context it is clear that Vachaspati Misra merely followed the Ratnakara, we cannot assume that he intended to be taken to have read the Ratnakara in any other sense.

It is indeed, unlikely to a degree that one of the leading authorities of the Mithila School should have represented another well-known authority of the same school as laying down unconditionally what the latter had clearly indicated to be subject to conditions by saying kvapi and actually quoting the first quarter Yajnavalkya II. 115. We now come to Vachaspati Misra''s treatment of Daya Vibhaga (partition of heritage, or inheritance) generally. The learned advocates have taken us practically into the whole of the chapter in the Vivada Chintamani, but it is necessary to deal with a few references only. At more than one place Vachaspati Misra makes it clear that in his view the wife of a deceased brother is not entitled to a share of the family property, and there is no dispute that that is the Mithila law, as it is also the law in the other Mitakshara Schools.

Vachaspati Misra has, perhaps, put this most pointedly not in the section on partition during the life-time of the father, though he has occasion to mention it more than once in this section (see Tagore, pp. 232 and 239), but in the section on Succession in default of a Son, where immediately after quoting Balarupa on the text of Harita, he comments:

When the husband dies without partition with his co-heirs, he has no share at all; what then could his wife receive? It cannot be argued that she is entitled to a share like her husband, because there is no authority for this; nor should it be argued that the preceding texts are authority for her receiving a share, because they merely allude to the separate property of her husband": (Tagore, p. 291.)

Mr. Jha has argued that this does not affect the position contended for by him that the wife is a co-owner with the husband. The interest he contends for to meet the point under discussion is the interest of the wife while she continues to be a wife, an interest which ceases on the death of the husband. This is not unintelligible, but such an interest is only a hypothetical or fictional interest, and Mr. Jha has really assumed it not from anything that he has found and referred us to in the Vivada Chintamani, but from discussions in other Hindu law books, which also do not give the Hindu wife or widow a right in virtue of such interest to demand partition.

The fact is that Mr. Jha has endeavoured to read this theoretical (aupapattika) interest into Vachaspati Misra''s comment on Yajnavalkya''s suretyship verse, but has had to limit it to ancestral property on failing, after the most earnest and elaborate efforts, to find a way out of Vachaspati Misra''s treatment of Yajnavalkya II, 115 in the section on Partition during the life-time of the husband, and has further had to limit it to be the life-time of the husband on coming to those passages in the Vivada Chintamani where it is shown that the wife of an undivided deceased brother is not entitled to a share at a partition of the family property.

The case moreover so elaborately sought to be made out for the appellant that the Vibhaga Nirnaya gives the wife a right to claim partition, that the Chapter on Resumption of Gifts makes the wife''s consent essential to a gift of his entire property (sarrasra) by the husband, and that taking these special Mithila propositions together, the appellant was a coparcener of her husband is moreover argued for a widow who desires to have her husband''s bequest of the bulk of the property to a nephew under a will purporting to bear her signatures set aside. This aspect of the matter was not always borne in mind when the Mithila wife''s rights as a wife were argued. If they do not entitle her to take the husband''s property by survivorship-and this cannot be disputed on the passages at pp. 232, 239 and 291 of Tagore''s book-it does not seem that in the circumstances of this case the appellant stands to gain anything by establishing her alleged rights as a wife if they came to an end on her husband''s death. Nor has Mr. Jha seriously attempted to show that Vachaspati Misra or any other commentator has actually recognized for the wife a coparcener''s right limited to the life-time of the husband. Turning now to the section on the Separate Property of Women -we find Vachaspati Misra giving his own classification of stridhan-(see Banerjee''s Marriage and Stridhan, pp. 336-8), and then dealing with a woman''s rights not only over stridhan, moveable or immovable but also over her husband''s property which becomes hers on the death of the husband in default of other heirs-(Setlur, p. 256).

He quotes a verse which is thus rendered by Tagore (p. 261):

Katyayana says, that a woman, on the death of her husband, may enjoy his estate according to her pleasure; but in his life-time she should carefully preserve it. If he leave no estate, let her remain with his family.

Setlur''s translation of the same verse (p. 256) is:

Whatever was given by the husband, a woman may enjoy as she pleases when he is dead; but when he is alive, let her preserve it or reside in the family (of the husband).

The discrepancy in these translations is partly due to the fact that the original for Tagore''s ''his (i.e., the husband''s) estate'' and Setlur''s ''whatever was given by the husband is (bhartri-daya), which Vachaspati Misra expressly interprets as the husband''s wealth, whether devolving on the wife, on his death, in default of other heirs, or whether becoming her property with his permission, or as Tagore has put it, "enjoyed" by her with his consent, in his life-time.

If these be the only kinds of the husband''s wealth that come to the hands of the wife, it would not appear that according to Vachaspati Misra a wife was entitled to claim partition from the husband. The share obtained by a wife from the husband in virtue of her alleged right to partition, and obtained against his will, could hardly be included in the class of property which the wife takes with his permission. Mr. Jha has endeavoured to meet this by suggesting that Vachaspati Misra''s classification of bhartri-daya was not intended to be exhaustive, and that in this context he was only dealing with the peculiar property of woman. But Vachaspati Misra himself gives a reason - the akanksha or expectancy already referred to-why, while on the topic of the Saudayika (stridhan), he considers it necessary to deal with property inherited by a woman from her husband. Nor can the classification of bhartri-daya be regarded as other than exhaustive on the ground suggested by Mr. Jha, viz., that it does not include the share that the wife is entitled to in the husband''s self-acquisitions under Yajnavalkya 11-115. That share is after all given by the husband, and the conditions in which it must be given, as we have already observed, are not such as can be brought about by her, but depend entirely on his own volition.

There is therefore no reason why it should not come within Vachaspati Misra''s second class of bhartri-daya. Anshare obtained by the wife on a partition forced by her as a matter of right upon the husband would be on an entirely different footing and seems to be so foreign to the spirit of Hindu law that we need not be surprised if it does not fit very well into and is not noticed in Vachaspati Misra''s scheme. It is also significant that in this section on Stridhan Vachaspati Misra quotes Yajnavalkya II. 148 and explains:

By the husband marrying a second wife, his first wife becomes superseded. What is given to her by the husband at the time of separation is called money given for the supersession adhivedanikam (Setlur p. 255.)

Mr. L.N. Singh for the respondent has argued that if the Mithila wife really had a right to obtain partition of ancestral property from her husband one of the most natural occasions for her exercising that right would have been her supersession by a second wife when the text requires her to be compensated with the adhivedanika fee. There is however no trace of any such right in Vachaspati''s entire treatment of stridhan. The respondent''s argument is of course negative. While therefore too much stress must not be laid on it, we may observe that the comment on the word "avibhakte" in Yajnavalkya''s suretyship verse is plainly much less suitable an occasion for dealing with the wife''s right contended for on behalf of the appellant than is furnished, though not availed of, by Vachaspati. Misra''s treatment of the (adhivedanika and bhartri-daya) in the section on stridhan.

How is the matter regarded by the other Mithila authorities placed before us? It has been shown already that the comment of the Ratnakara on the suretyship verse leaves no doubt that Chandesvara Thakur read no more into the word "avibhakte" than is to be found in Yajnavalkya II, 115., that is to say, that he did not consider that the wife was unconditionally entitled to claim partition herself from the husband. The Dvaita Parisishta, as edited by Keshava Misra''s pupil Kalyana Misra, deals with the suretyship verse on p. 39. This author also propounds the question how there can be any partition at all between husband and wife in the face of Apastamba''s text that there is no partition between them.

His answer is that that and other texts (which are also found in Vachaspati Misra''s comment) only mean that there is no partition between husband and wife in sacrificial performances or their fruit, and he adds the significant word (dhanavat), ''like wealth,''-gayackchhayam ntaphale (an obvious misprint, for ijyayam tatphale?) vatayor na vibhago dhanavat. He proceeds to say that there can be partition of wealth (between them) under the text of Yajnavalkya, quoting the first half, and not merely the second quarter of Yajnavalkya II. 115. It is interesting to observe that he then deals with and negatives a contention based on Jaimini''s discourse on the wedded wife. The contention is as a matter of fact slightly different from that dealt with by Vachaspati Misra, because a distinction is made between the patni and other wives. But Keshava Misra''s reply to the contention is exactly the same as that of Vachaspati Misra up to but not including the concluding sentence which has been the subject of so much argument before us. If he leaves out Vachaspati Misra''s concluding sentence, the reason plainly is that he had already stated that position before turning to the objection based on the (patnyadhikarana).

The Mitakshara which is also an authority in Mithila denies to the wife any right to demand partition from the husband.

The position thus is that out of four Mithila authorities, the Mitakshara is expressly against the appellant; the Ratnakara, by necessary implication from the express statement that the wife sometimes gets a share in accordance with the first half of Yajnavalkya II. 115, is also against the contention of the appellant that a Mithila wife is entitled to demand partition at her discretion; the Dvaita Parisishta also does not give her any partition or share from the husband except in accordance with the first half of Yajnavalkya II. 115; and the Vivada Chintamani is also against the appellant''s contention, though his omission to quote the first quarter of Yajnavalkya II. 115, or like the Ratnakara to say kvapi, or to refer to his previous treatment of the verse has led to this elaborate controversy.

In this state of the authorities it is plainly impossible to accept the appellant''s contention that a wife in the Mithila school is entitled as a matter of right to demand partition from her husband at her own discretion.

The other passages from the Vivada Chintamani relied on by the appellant occur in the chapter on "Subtraction of what has been given"-(Tagore, p. 72). The dispute between the parties will be rendered clearer if the whole context is considered. Vachaspati Misra begins the Chapter by quoting three verses of Narada, IV. 1 to 3, which have been translated by Dr. Jolly in Max Muller''s Sacred Books of the East, Vol. 33, at p. 128 as follows:

Where a man wishes to resume what he has given, because it has been unduly given by him, it is called ''Resumption of Gift'' a title of law. What may be given (a) and what not; (b) valid gifts; (c) and invalid gifts; (d) thus the law of gift is declared fourfold in judicial affairs. Again, what may not be given (b) is eightfold, what may be given is of one kind only; of valid gifts (c) there are seven species, and sixteen sorts of invalid gifts (d).

Vachaspati Misra''s comment on these verses is--

The ''undue'' character of a gift (may arise) either from its being the gift of property which may not be given, or from the mode of gift being improper, or from some mistake regarding the donee and the like, or from the absence of the consent of the father and others, or from various conditions of the donor himself such as his being very old.

The chapter being thus divided into four sections-Adeya, Deya, Datta and Adatta-Vachaspati Misra proceeds first to deal with the eightfold Adeya, what may not be given, by quoting the following verse of Brihaspati XV. 2:

That which may not be given is declared to be of eight sorts, joint property, a son, a wife, a pledge, one''s entire wealth, a deposit, what has been borrowed for us, and what has been promised to another"-(Translation by Dr. Jolly, loc. cit., p. 342)

(a) Corresponding to ''Deya''; (b) ''Adeya'';

(c) ''Datta; and (d) ''Adatta,'' respectively in the original Sanskrit.

He makes the following comment on the verse:

Joint property'' is that which is owned by several persons; there, (1) in regard to joint property, a son and a wife, the gift fails of accomplishment by reason of (the donor''s) want of independence. And want of independence (arises) in regard to joint property from the fitness of things: in regard to a son and a wife, who do not consent, (it arises) from the authority of texts: in regard to the entire wealth of one who has (any) anvaya and to a thing (that has been) promised by any person at all (to another), (it arises) only from the authority of texts: thus a gift is precluded by want of ownership in the case of a pledge, a deposit and what has been borrowed for use, and only by the authority of texts, in spite of (the donor''s) independence, in the case of all these four (things)-a son, a wife, the entire wealth and what has been promised....

Pausing here for a minute, it is safe to say that this part of the comment is corrupt. Not only is the word tatra, "there," in the middle of the first sentence superfluous and inappropriate in the context, but the want of independence in regard to a son and a wife affirmed in that sentence conflicts with the concluding portion of the above comment where a son and a wife are expressly included among the four things that may not be given in spite of the donor''s independence with regard to them. In the first part of the second sentence a distinction is made between a son and a wife on the one hand and (sarvasva), "the entire wealth," and (pratishruta), "what has been promised," on the other, which however is ignored in the summary at the end and is perhaps not very clear, but seems to imply that apart from the texts the donor is independent (svatantra) in regard to the sarvasva and the pratishruta only, but that as regards the son and the wife, their consent is a factor to be taken into account.

The summary also leaves out one of the eight adeyas given in the versa, namely joint property which is dealt with in the beginning. The Bombay reading of this passage is only a little better, but contains a palpable mistake (putradaradisarvasvapratishruteshu), instead of (putradarasarvasvapratishruleshu), which has been already referred to and which will have to be referred to again. The word (anvaya) has been left untranslated in the above passage; it has been the subject of much dispute, as will be seen later. Briefly, the appellant would take it to mean "heirs including the wife" while the contention of the respondent is that it means "issue" or "offspring" and can in no case include the wife. Vachaspati Misra''s comment on Brihaspati''s verse concludes with the following sentence:

(1) This word, (tatra) in the original, occurs in the Calcutta edition and seems superfluous. The Bombay edition leaves out the clause.

In the opinion of the Smritisara, however, a gift of one''s entire property does take effect, for the reason that it is made by an independent owner, but the donor incurs sin for doing a forbidden act.

The commentator does not say whether or not this is his view also. According to the appellant the use of the word "however," corresponding to "tu" in the original, indicates that this was not the view of Vachaspati Misra himself. The point is arguable, but it will be remembered that it would have been destructive of the appellant''s case on Vachaspati Misra''s concluding sentence in his comment on Vajnavalkya II. 52 if the same word occurring in that sentence had been construed in the way now contended for. Reference has already been made to the number of senses in which the particle "tu" can be used in Sanskrit; its precise significance in any particular sentence must depend on one''s interpretation of the whole context. It will be seen later that Vachaspati Misra not only holds that the entire wealth may be given with the consent of the anvaya, a term usually taken to mean issue or descendants, but also shows that consent is only necessary when what is given is madhyaga, joint property.

Vachaspati Misra then quotes two verses of Narada, IV. 4 and 5, which have been translated by Dr. Jolly as follows:

An Anvahita (1) deposit, a yakita (1), a pledge, joint property, a deposit, a son, a wife, the whole property of one who has offspring, and what has been promised to another man; these have been declared by the spiritual guides to be inalienable by one in the worst plight even.

(1) Dr. Jolly in his foot-note refers to II. 14 for the meaning of these technical terms and says that the prohibition of such gifts as would leave the family destitute appears to relate principally to charitable donations and religious endowments. Pandit Ishwari Dutta could not have been aware of this foot-note when he said that Dr. Jolly did not understand the first two words.

(What Dr. Jolly has called "inalienable" in this translation is adeya in the original). Having quoted near the beginning of the chapter a verse of Narada''s in which it was said that what may not be given is eight-fold, Vachaspati Misra''s first comment on these varses is directed to showing that though the things mentioned in these verses in fact seem to number nine, the number must be taken to be eight. The comment is:

Son and wife are here included in one compound and thus form one single predicable; (and) from this unity (of the two) the eightfold character (of things that may not be given still remains).

Then comes the following comment, including a quotation from Katyayana:

The meaning is that even in a time of distress, a son, a wife, and the entire estate may not be given without the consent of (the anvaya namely, the son, the wife and the like/The son, the wife and the like, and the anvaya).

(But) Katyayana says that with their consent (the former) may be given:

(These) should not be subjected either to a sale or to a gift, (if they be) unwilling -a wife and a son; as to (a) the entire estate, it should be applied to one''s own use only. In a time of distress however a gift or a sale may certainly be made; one should not act otherwise. This is the decision of the law codes. In the absence of the consent of those three, these three should be enjoyed by one''s own self; with the consent of these, (a1) however there may be gift of them (a1)-this is the meaning. Others however (hold) that the entire wealth may not be given even with the consent of the anvaya, as gift is prohibited because of the mere existence of it (i.e., anvaya).

This is the comment that has given rise to much discussion. In para. 1 the appellant''s interpretation of the compound (putradaradyanvayanam) has been shown above that of the respondent. Some light will be thrown on the matter in controversy by the following continuation of Vachaspati Misra''s comment above:

As to the son''s consent itself, Vasishta (says): ''Man formed of uterine blood and virile seed proceeds from his mother and his father (as an effect) from its cause. (Therefore) the father and the mother have power to give, to sell, and to abandon their son'' (b). Here too, the case of an only son being special, he himself lays down: ''But let him not give or receive (in adoption) an only son; for ho (must remain) to continue the line of the ancestors. Let a woman neither give nor receive a son except with her husband''s permission'' (b). An only son, though (he be) agreed to the gift, may not be given, since the text provides a reason, as it were, by laying down ''for he (must remain) to continue etc.

(a) To express the effect of "tu" in the original.

(a1) Sic. in the Calcutta edition.

(b) Translation by Dr. Buhler in Max Muller''s Sacred Books of the East, Vol. 14, p. 75.

The dispute between the parties is regarding whether under the Mithila law the consent of the wife is essential to a husband''s bequest of his entire estate. The texts do not deal with bequests, but the law of wills and bequests by Hindus has been held to be a development of the law of gifts inter vivos, and wills are generally to be regarded as gifts to take effect upon death as to the property which they can transfer: Tagore v. Tagore (1872) 18 WR 359. The three Smriti texts quoted do not specifically refer to the wife''s or any other relative''s consent in connexion with the gift of the sarvasva (the entire estate); but one of them-Narada''s-does refer to the existence of anvaya. The primary question thus is whether Vachaspati Misra has in fact interpreted the texts to mean that the wife''s consent is essential and taken that to be the law in Mithila notwithstanding what he states to be the view of the Smritisara.

It will be observed that Brihaspati, who is first quoted in the adeya section, mentions sarvasva sans phrase among the eight things that may not be given. In the earlier part of his comment on. Brihaspati''s verse Vachaspati Misra introduces the qualification that sarvasva is not to be given by one who has any anvaya. The next text quoted by Vachaspati Misra is Narada''s which lays down that sarvasva may not be given if there be any anvaya; Dr. Jolly has rendered this by saying that "the whole property of one who has offspring is inalienable." Vachaspati Misra says that the meaning of Narada''s verses is that even in a time of distress a son, a wife and the entire estate may not be given, without the consent of certain persons-who these are is in controversy-and heat once proceeds to quote Katyayana for the purpose of showing that with the consent of those persons, a son, a wife and the entire estate may be given.

Whether Katyayana''s verses quoted by Vachaspati Misra do or do not altogether support that position is a different matter; but after quoting them Vachaspati Misra says that the meaning is that in the absence of the consent of those three" "those three" should be enjoyed by one''s own self, but that with the consent of "these" there may be a gift of "them." He concludes this portion of the comment with the observation:

Others, however, hold that the entire wealth may not be given even with the consent of the anvaya, as gift is prohibited because of the mere existence of it (i.e, anvaya),

Regarding the identity of "these" three things (if we may call them so for convenience) whose alienability or otherwise is discussed, there is no dispute; they are a son, a wife, and the entire wealth, though in Katyayana''s first verse the wife is placed before the son. It also seems clear that Vachaspati Misra''s view, as expressed in this part of his comment, was that these three things may not be given even at a time of distress without the consent of certain persons but may be given with their consent. It has indeed been argued, in this Court, for the appellant that Vachaspati Misra''s concluding statement of the opinion of "others" on Katyayana''s verses-that the mere existence of anvaya bars a gift of the sarvasva-represents his own view; but that was not the appellant''s case below.

It is true that these Sanskrit commentators do sometimes indicate their own views in this peculiar form: but as pointed out in Dayaldas Laldas v. Savitribai (1909) 31 Bom 385, that course is adopted by commentators swayed by modesty and considerable deference to the views of other distinguished commentators already quoted. Vachaspati Misra, as has been already shown, does not feel any hesitation in directly expressing his dissent from such a work of special authority in Mithila as the Ratnakara, or (according to the appellant) in referring even to the Mitakshara without a semblance of much respect. Nor has Mr. Jha been able to show from the context from what recognized predecessor Vachaspati Misra was differing on the present occasion, if in an unusual excess of humility he decided to express his own view in this peculiar, indirect form. Vachaspati Misra could, of course, put his own gloss on Katyayana or Narada or Brihaspati, and reconcile in his own way such conflicts as he chose to notice in those Smritis or others.

But it was out of the question for him to differ from any of them. Katyayana, as a matter of fact, says nothing about the anvaya, but Vachaspati Misra himself has already introduced anvaya in his comment on Brihaspati, in view (doubtless) of the text of Narada and possibly other Smritis (e.g. Yajnavalkya II. 175), and in the comment on Narada he adopted the interpretation that the consent of the anvaya is necessary. Mr. Jha''s contention on this point must therefore be rejected; it is entirely inconsistent with the views so emphatically expressed just before and just after the quotation from Katyayana.

We thus come to the question, who, according to Vachaspati Misra, are the persons, with whose consent a son, a wife and the entire estate may be given, but without whose consent they may not be given? It is to be noticed in the first place that Vachaspati Misra''s comment just before and after the quotation from Katyayana makes it clear that he used the expressions vimatau, "without (their) consent,'' and sammatau (or anumatau)," with (their) consent," as contradictory and not merely contrary to each other, so as to have a complete dichotomy, and that there is no reasonable ground for the interpretation suggested by the appellant''s translators that the words tesham trayanam indicate disagreement among three persons including the donor himself. Vachaspati Misra first speaks of the son and wife being vimata, non-consenting, when commenting on Brihaspati''s verse. He again refers to the vimati of certain persons before coming to the verses of Katyayana and this also (like the first) in a sentence which does not include the donor among the parties whose vimati is mentioned.

It will be seen later that in the corresponding passage the Ratnakara speaks of the ananumati, non-consent, of the anvaya as distinguished from its sammati, consent. These terms make the dichotomy quite clear. Vachaspati Misra evidently used the word vimati for ananumati, and the context shows that when he spoke of the vimatt of three persons (or bodies of persons) he did not mean disagreement among them but only their non-consent--the absence of their consent-to the donor''s acts.

In order however to appreciate the point in issue clearly, it is desirable first to deal with Katyayana''s verses which intervene between the two parts of Vachaspati Misra''s comment. These verses do not expressly speak of any consent at all. All that they appear to do is to forbid, except in a time of distress, the sale or gift of a wife, and a son, if they be unwilling, and of the sarvasva. It may be observed in passing that this is not a mere repetition of the comment on Narad a that even in a time of distress the son, wife and sarvasva may not be given without the consent of certain persons (whose identity falls to be determined). Now, they predicate in Katyayana''s first sentence (na) neyah "should not be brought," like the adjective, anichohavah (unwilling) is masculine and plural, darah, the word used for "a wife," is in Sanskrit a masculine plural, putrah, a son being masculine and singular; and both are in the nominative case, while sarvasvam is neuter and singular, and in the nominative or the accusative case.

There is an elementary rule of concord between substantive and adjective in Sanskrit grammar which requires that an adjective, whether used attributively or predictively, should agree in gender and number with the substantive to which it refers. But when the substantive qualified includes words of several genders, the rule is that the adjective must agree with them in their combined number, and that as regards gender, the adjective must be masculine if the words qualified be some of them masculine and some feminine, and neuter if they be some of them masculine or feminine and the rest neuter. In accordance with this rule, the first predicate (na) neyah will go with the wife and the son as the subject of the first sentence. It is however possible as a matter of Sanskrit grammar to read the predicate (na) neyah with the word sarvasvam-taking it as in the nominative case-by the linga-viparinama process (see for easy reference Apte''s Sanskrit Guide, Sections 21.22).

But the adjective anichchavah cannot, even with a not impossible modification of gender and number, be read with sarvasva because in the nature of things there can be no question of the consent or want of consent of sarvasva to its sale or gift. In his Digest of Hindu law (Book 2, Ch. 4, Section 1, verse 7) Colebrooke gives the following rendering of Katyayana''s verse:

A wife or a son, or the whole of a man''s estate, shall not be given away or sold without the assent of the persons interested; he must keep them himself.

It is not clear what version of Katyayana''s verse Colebrooke had before him. In the verse before us the only word that could at all correspond to Colebrooke''s translation "without the assent of the persons interested" is anichchavah.

In the first sentence of the comment of Jagannath as rendered by him, Colebrooke shows parenthetically that the persons interested are the son, wife, kinsmen and so forth, and this points to a different original than the one before us. In a foot-note on this sentence he says that he has omitted Jagannath''s,

grammatical disquisition justifying the use of the masculine gender in the instance of a participle governed by unconnected words of the three genders.

But this would apparently refer to the predicative participle neyah; and Mr. Jha with his knowledge of Panini has not been able to suggest how any rules of grammar could make the attributive adjective anichchavah, unwilling, applicable to dead matter like sarvasva, an entire estate. Pandit Ishwari Dutt, who has translated anichchavah by "without their assent" actually gives a footnote to say that the persons referred to there are the wife, the son and the donor; but it does not appear from his evidence or otherwise how the word anichchavah could at all be construed with the donor who is not classed by Katyayana with the nouns dara and putra-the adjective qualifies the subject of the sentence, viz., the things that are not to be given or sold, and it seems impossible to include the donor among them. Professor Ramautar Sharma has taken the adjective anichchavah to refer to the wife and the son, while extending the predicate neyah to the sarvasva as well.

A more literal rendering of the verse is, however, possible, and Mr. Jha has not suggested that the rendering we have adopted on the basis of Dr. Bhagwat Kumar Shastri''s translation departs in any respect from the words of the original. As the verse does not mention anvaya at all, and as, on the question of consent, it refers to the wife and the son only through the adjective anichchavah, what Vachaspati Misra sayg immediately after the quotation from Katyayana must obviously be taken not merely as his comment on Katyayana, but also as a continuation of his comment on Narada which indeed led to the quotation from Katyayana. The first part of this later comment is that in the absence of the consent of those three, these three should be enjoyed by one''s own self.

The demonstrative pronouns "those" and "these" in Sanskrit, as in English and other languages (such as Persian), refer to objects regarded as distant or near respectively. "These three," it is common ground, are the wife, the son and the sarvasva; and they are mentioned one after another in the second half of Katyayana''s first verse. One would, therefore, naturally look for "those three" to something earlier in the passage. The first half of the verse mentions no persons at all, and it would thus appear that the reference was to the putradaradyanvayanam found near the beginning of Vachaspati Misra''s comment on the adeya character of putradarasarvasva. The appellant would take "those three" to mean the wife, the son and the donor himself, or, according to the looser order adopted by Professor Sharma "one self (i.e. donor), wife and son." But the donor himself is only mentioned in the last quarter of Katayayana''s first verse, in the locative form atmani, (literally "in oneself"), while the wife, the son and the sarvasva occur in a different case or cases in the third quarter of that verse.

The appellant''s interpretation has thus the disadvantage of including in those three" the atma mentioned not before, but after these three." Sufficient attention does not appear to have been paid to this aspect of the matter by the appellant''s pandits. It must, however, be observed that too much stress ought not to be laid on Vachaspati Misra''s pronouns, if reliance is to be placed on the Calcutta edition or even on the Bombay edition of the Chintamani, for the Calcutta edition in Clause 2 of the sentence speaks of the consent of "these" to the gift of "those," this last pronoun being also found in the Bombay edition. Apart, however, from the use of the pronouns employed in the comment, the interpretation contended for by Mr. Jha suffers from a double disadvantage in including the atma (oneself) among "those three" whose consent or otherwise is being considered, for this word (as already observed) does not occur in Katyayana''s verse in the same (nominative) case as the wife and the son, and further it seems idle to require the consent of the donor himself to a voluntary gift.

There is also the difficulty, already referred to, in construing the word vimatau in the comment after the quotation from Katyayana as meaning a disagreement between the wife or son on one hand, and the donor himself on the other, when in the comment after the eightfold character of things that may not be given, Vachaspati Misra (according to the appellant) makes the son the wife and the sarvasva inalienable without the consent-vimatau again - of the "anvays" including the son and the wife-there being no possibility here, even according to the appellant''s interpretation, of the donor himself being among the persons whose vimati is in question. "Those three" cannot, therefore, be taken to be the son, the wife, and the donor. The pronoun must refer to something earlier than Katyayana''s verses, and we must therefore go back to the comment before them.

Now Vachaspati Misra begins that comment by saying that the son, the wife and the sarvsava must not be given even in a time of distress without the consent of certain persons or bodies of persons, putradaradyanvayanam, but may be given with their consent. In support of the latter position he cites Katyayana, and then continues that without the consent of "those three" these three" should be enjoyed by one''s own self, but that with their consent, there may be a gift. According to the appellant the expression putradaradyanvayanam means "of the anvayas, namely, the son, the wife and the like": the compound (samasa) being the appositional karmadharaya, and not the copulative dvandva, and anvaya, the last member of the compound being qualified by the adjectival putradardi which itself would be taken as a bahuvrihi. (Adi means the beginning, and putradaradi, construed as a bahuvrihi, would mean ''at the beginning of which are the son and the wife,'' ''headed by the son and wife.'' The karmadharaya would thus mean the anvayas ''headed by the son and wife,'' but Mr. Jha prefers the rendering ''the anvayas, namely, the son, the wife and the like''). According to the respondent, however the word putradaradyanvayanam is probably a misprint or an inaccuracy in the manuscript used for the Calcutta edition. It cannot be said that this is not plausible; the Vivada Chandra printed at p. 441 of Vol. 2 of Part 3 of the paper-book wrongly reads putradaradi instead of putradaradhi in Brihaspati''s verse, and the Bombay edition wrongly reads putradaradi, instead of putradara, before sarvasva - pratishruteshu in the comment on that verse, showing how one is liable to add a wrong adi to putradara.

The same word-putradaradyanvayanam -is, however, found in the Bombay edition, and we have not been referred to any other editions or to any original manuscripts. The appellants has also filed a copy of the Vivadarnavasetu published at Bombay by the Sri Venkatesvara Press in 1888, which at p. 148 gives the same reading. This last work is however plainly unreliable to a degree. The publisher has solemnly prefixed a Sanskrit introduction called "request to the learned," in which he says that the work was compiled by a number of pandita under the orders of Ranjit Singh, the Lion of the Punjab. The names of the pandits are mentioned and agree almost entirely with the pandits who are mentioned at the end of the manuscript of the Vivadarnvasetu (the Digest of Hindu Law prepared in 1773 under the directions of Warren Hastings and given to English readers under the name of "Halhed''s Gentoo Code") in the library of the Asiatic Society of Bengal, as ascertained by Mr. J.C. Ghose: see the foot-note on p. 18 of Vol. 2 of his Principles of Hindu Law. (Mr. Ghose however speaks of an edition printed and published at Benares in 1888, while the book before us was printed and published in Bombay in the very same year.)

This book itself moreover says that the view on Narada''s verses that even in a time of distress the son, the wife and the sarvasva may not be given without the consent putradaradyanvayanam is also the view of the Vivada Chintamani, the Vivada Ratnakara and other works; this is plainly wrong so far as the Vivada Ratnakara is concerned, as will be seen presently. It is also significant that this Vivadarnavasetu uses putradaranvayanam, and not putradaradyanvayanam, in commenting on Katyayana, and like the Vivada Chintamani speaks of the existence, as distinguished from the consent or otherwise, of the anvaya alone in connexion with the gift of the sarvasva in several places. Wrong manuscripts and unscholarly editions have frequently to be corrected according to grammar and sense, but it is a recognized principle that efforts ought to be made to interpret the texts as far as possible according to the readings actually found, and that caution should be exercised in correcting such readings.

It is convenient however to deal first with the emendation adopted by the respondent''s pandits. They would read the word as putradaranvayanam; and if that be the correct reading, it is beyond question that the sentence would mean that the son, wife and sarvasva are, even in a time of distress, not to be given away without the consent, respectively, of the son, the wife and the relations included in the term anvaya.

It is true that whether or not we leave the word adi out of the compound putradaradyanvayanam, there would be nothing in the sentence directly to show that it is the consent or want of consent of the three entities putra-the son, dara--the wife, and the anvaya respectively that bears on the gift of the son, the wife and the sarvasva. But

it is a rule that things named in order should be referred respectively to terms placed in similar order; as in the example, he cuts a Dhava, and a C'' hadira tree, with a bill and an axe": see Colebrooke''s Digest, Book 2, Oh. 4, Section 2, verse 28, para. 14 of Jagannath''s comment, at p. 433, Vol. 1 of Higginbotham''s edition of 1874.

This principle of interpretation is familiar to students of ordinary Sanskrit literature under the name of-yathasankhya and is also found applied by Jamini himself at least in one place: see his sutra IX. 3. 33 api va dvisamavayorthanyatve yathasankhyam prayogah syat; and an exact parallel is furnished by the Arabic (laff o nashr murattab). Vachaspati Misra in the section on Deya quotes Brihaspati, XV. 6 (translated by Dr. Jolly at pp. 342-3) which contains an example of the respective consent of stri (wife), jnati (kinsmen) and svami (supreme ruler) joined together in a dvandva compound, and which must plainly be understood on the yatha-shankhya principle. The importance of this principle is that it at once leads one to take the compound as a dvandva: putrah + darah + anvayah = putradaranvayah. Such a compound as a whole would be in the plural number, even though anvaya, the last member of it, be, as usual in literature, used in the singular number. Other reasons for adopting this reading would be that in his comment on Brihaspati''s verse Vachaspati Misra refers to the vimati of the son and wife only in connexion with their gift, as that the anvaya as such would have nothing to do with it, that in the comment after Katyayana''s verses he refers to an opinion of others according to which sarvasva is not to be given even with the consent of the anvaya, so that except in so far as the son and the wife may be included in the term anvaya their consent would appear to have no bearing on a gift of the sarvasva, and further that in dealing with the quotations from Vasistha he says that an only son may not be given even if he be agreed to the gift, which again suggests that what was thought essential to the gift of a son was his consent and not that of any others included in the expression putradaranvayah on even putradaradyanvayah as the Calcutta edition has it.

The Vivada Ratnakara also (see pp. 128-9 of the edition in the Biblietheca Indica, 1887), makes the following comment on the two verses of Katyayana:

Here as in the former text (1) as regards son and wife, gift and the like even in dire distress is prohibited, and as regards sarvasva, when there is anvaya, the same is prohibited even in dire distress, by the text "in a time of distress (gift and the like) however may certainly be made," gift and the like should be understood to be, in the case of the wife and son, with their consent, and in the case of sarvasva, with the consent (2) of the anvaya; there can be no gift and the like of unwilling wife and son, nor of the sarvasva without the consent of the anvaya (3) thus there is no inconsistency.

(1) This apparently refers to a quotation from Daksha, which however omits the son. Narada IV. 4 and 5 and Yajnavalkya II. 175 are quoted before Daksha. (2) Sammatimadaya. (3) Ananumatya.

This also, as far as it goes shows that it was the consent of the anvaya only that was considered essential to the gift of the sarvasva, and that to the gift of the son and wife their consent only was considered essential.

Much the same considerations would apply even if the correct reading of the compound be taken to be putradaradyanvayanam. According to the respondent''s contentions, even on this reading the compound would be a dvandva and it would be the consent of the son that would be essential to the gift of the son, the consent of daradi to the gift of the wife, and the consent of the anvaya to the gift of the sarvasva. This construction was resisted below on the ground that a bahuvrihi ending in adi is adjectival and cannot be compounded with nouns like putra and anvaya into a dvandva. No definite grammatical bar was however indicated, and Mr. Jha after being referred to about a dozen compounds, in which one of the members was a bahuvrihi ending in adi and used , as a noun, which were found on a random inspection of about ten pages of the Viramitrodaya, (Sarkar''s edition from p. 55 onwards), gave up the contention that on account of the adi in the middle, putradaradyanvayanam could not be a dvandva, as suggested by the respondent, but must be a karmadharaya. It was after this that the respondent found an unquestionable dvandva of this character-putrapatnyadisansrishtinam- in the Mitakshara, II. 10. 1, which is thus rendered by Colebroke; "of the son, the wife and other heirs, as well as the reunited parcener"; the son in this rendering is the putra of the original, "the widow and other heirs," the patnyadi, and the reunited parcener, the sansrishti (in the singular).

The appellant also objected to the interpretation of the compound as a dvandva on the ground that the addition of adi to the dara made that term indefinite; but there is little substance in this because, in whatever way the compound may be dissolved and apart from the context it could, as shown by Dr. Jha, be even dissolved as a tatpurusha with the meaning "of the anvayas of the son, wife and others"-the indefiniteness, introduced by the word "adi" must remain, and all that would happen if the appellant''s karmadharaya way of dissolving the compound were adopted would be that the observation of Vachaspati Misra would be indefinite not merely in connexion with the gift of the wife but also in connexion with the gift of the son and the sarvasva. The presence of the adi is therefore not a sufficient reason for taking the compound to be a karmadharaya rather than a dvandva; and there is authority for preferring a dvandva to a karmadharaya where possible-see for instance maxim No. 40 at p. 365 of Sarkar''s Mimansa "Rules of interpretation" and the judgment of Nanabhai Haridas, J., at pp. 465-6 in Moro Vishvanath v. Ganesh Vithal (1873) 10 BHC 444. It was faintly suggested for the appellant that with the adi the yathasankhya rule would be difficult to apply.

But the difficulty suggested only was that the dvandva way of dissolving the compound involved a tautology on the ground that a son must in any view of the matter be included in the anvaya. There is however no substance in this; if the consent of three bodies of persons required to the gift of three things respectively it is by no means necessary in logic that the three bodies should be mutually exclusive. As has been already observed in dealing with the readings that the respondent''s pandits would prefer, there are other passages in Vachaspati Misra''s comment both before and after the disputed expression putradaradyanvayanam, which suggest that the consent of the three-the putra, an individual, and daradi (if that be correct reading) and anvaya, two bodies of persons-to be taken distributively in regard to the gift or sale of the son, the wife and the sarvasva.

The appellant''s reason for pressing the view that the disputed compound is a karmadharaya and not a dvandva is the difficulty of otherwise establishing the inclusion of the wife in the anvaya. Neither of the appellant''s pandits was able to cite one instance either from classical Sanskrit literature or from Smriti literature where the word anvaya has been so used as clearly to include the wife. The word is derived, according to the evidence, from the prefix anu and the root i" or "ay" meaning "to go." The prefix is usually taken to mean "after," but as pointed out by Professor Sharma, it also means "on," "along with" etc. The word thus means succession; association, connexion; race, lineage, descendants. We have been referred to V.S. Apte''s Sanskrit-English Dictionary, which is so useful for its citations to the Dictionaries of MacDonell and Monier "Williams, and also to the monumental Sanskritworterbuch of Bohtlingk and Roth (St. Petersberg, 1855). There is really nothing in them to show that the word (anvaya) is ever used in a sense which would include the wife.

It is true that they mention "family" as one of the equivalents, but this is only in association with such words as race, lineage and geschlecht, and the only dictionary sense applicable in the present context is clearly descendants, progeny, nachkommenschaft, all used collectively. We also observe that according to the dictionaries the word is not used to denote an individual relative; as will be seen later, the plural form of the compound is hardly explicable on the karmadharaya basis if the word anvaya in the singular signifies descendants or issue collectively, and not an individual relative. In the (Amarakosha), a lexicon of recognized standing in connexion with the current senses of Sanskrit words, the word anvaya is mentioned, along with santati, gotra, kula, vansha, santana, etc in the sense of (vansha) meaning "race family, dynasty, lineage."

It should not really be necessary to observe that the Amarakosha does not mean that the word anvaya in all its senses is equal to the word vansha in all its senses-it cannot for instance mean a bamboo which is one of the meanings of vansha; but much stress has been laid on behalf of the appellant on gotra as a synonym of anvaya according to the Amarakosha, the argument being that as the wife is born on marriage into the husband''s gotra, she is therefore part of his anvaya if not an anvaya herself. This however overlooks such facts as that according to a passage from Medhatithi''s commentary on Manu VIII. 46 (Gharpure''s number is. 47) which was put to Dr. Jha by one of appellant''s advocates below, kula which is given in the Amarakosha as a synonym along with gotra of vansa and anvaya, means a part of the gotra, that there is a controversy regarding the fictional gotra of the wife after her death-see the Mitakshara on Yajnavalkya I. 254, and that the fictional birth of the wife into her husband''s gotra does not seem to have taken by any vyavahara authority to place her on the same footing as her husband''s santati, another synonym for vansha.

In his commentary on Kalidasa''s Raghuvansa. I. 4, Mallinatha defines vansha as i.e., a line of descendants - santana marked by unity on account of birth; and Stenzler in his Latin translation of that classical work of Kalidasa (published by John Murray, London, 1832) renders the word vansha by stirps; This may be compared with the Sabdakalpadruma, a well-known Sanskrit lexicon prepared at the instance of Raja Radha Kant Deb of Calcutta towards the end of the last century, in which the word anvaya is said to mean the son, the grandson and others born in the vansha. In Raghu. I. 9 the poet speaks of the anvaya of the Raghus, and the word anvaya is translated as strips by Stenzler, being rendered in the same way on Raghuvansa III. 27. In Raghu. I. 12 the poet speaks of Dilipa being born in the anvaya of Manu, and Stenzler, renders this by saying "in ejus ... pregenie natus est ... Dilipa" the same expression in Raghu. VI. 41 is rendered "in ejus presapia natus...." In Raghu. XII. 33 Surpanakha is said to have mentioned her anvaya to Sita, and Stenzler renders this by "originem suum ... narrans." This gives an idea of the meaning of the word anvaya as equivalent to vansha. When the word occurs in a compound indicating an individual, the compound is usually dissolved in such a way as to bring out the fact that it means his descent, pedigree or stock.

Thus in Raghu VI. 46 Kalidas speaks of a certain king as nipanvaya and Malinatha interprets it as ''born in the vansha of the Nipas'', the compound (abahuvrihi) meaning that he was "of the anvaya of the Nipas," Stenzler renders it by the expression "a Nipa descendit." In Raghu. IX. 3 we have similarly Manudandadharanvayam, a Manue regeoriundun," according to Stenzler, and "he whose anvaya or root (kutastha), was the king known as Manu" again a bahuvrihi, according to Malinatha. Mr. Jha has, however, after a protracted search, brought to our notice two places where the word anvaya has been used in a different manner. On Sisupulavadham III. 26 the word somanvaya is interpreted by Mallinatha as "Soma''s anvaya, that is santana,''" clearly meaning an individual descendant. In Sriharsha''s Naishadhiyacharitam (yet another of the five classical Mahakavyas), XII. 13, the poet calls Rituparna Manu''s anvaya, and the commentator Narayana accordingly interprets the word to mean, "born in the vansha of Manu."

In this last context, however metrical exigencies may possibly account for the use of the word anvaya to denote not the vansha but an individual born in it, such use being permitted by the doctrine of "upalakshana" referred to by one of the witnesses and briefly explained (for law purposes) in paras. 380-382 of Ganapathi Iyer''s Hindu Law, 1915, and relied on by Mr. L.N. Singh for the respondent; this will be again referred to later on. In the last two examples, a given descendant has been called an anvaya, but this will not make the word anvaya before us quite intelligible if it is to consist of or denote the son, the wife and others of a like character. Even with her change of gotra, the wife is not placed on the same footing as a son, it would be absurd to regard her as a descendant of the husband. In Kalidas''s Sakuntala, Dushyanta, a descendant of Puru, refers to a child as belonging to the same anvaya as himself on hearing that the boy was a descendant of Puru. Without elaborating the point any further, it seems safe on these references, including the dictionaries, to say the the word anvaya is not usually employed to denote an individual and that its ordinary meaning is race or lineage, or also as subsequent quotations will show, the body of relatives called descendants, issue, progeny.

In the context before us, the word is plainly used not in the abstract sense of vansha, but in the sense of descendants which is derived from it by a natural transition and is found in the dictionaries as a matter of actual usage.

The question then is whether in the sentence about the adeya character of the sarvasva the word anvaya was taken by Vachaspati Misra to include the wife even if it cannot be shown that it is ordinarily so used. The wife''s natural descent is of course different from that of her husband and cannot be altogether obliterated - see for example Yajnavalkya I. 53 and 254 - but does her connexion by marriage bring her within the denotation of her husband''s anvaya? The only Smriti quoted by Vachaspati Misra in this connexion which mentions the anvaya with the sarvasva is Narada, and Dr. Jolly has translated saravasvam chanvaye sati in the verse as "the whole property of one who has offspring" this translation of course excludes the wife.

The Smriti-Chandrika, which is an exhibit in the case, plainly takes the word in this very context to mean (santana) which clearly excludes the wife (see the last line on p. 442, and Raghu. I, 34 whore Stenzler renders by "prolis caussa," though we are not dealing with a woman''s anvaya. Yajnavalkya in II. 175 says Nanvaye sati sarvasvam which Gharpure translates "Nor, when there is progeny his entire property;" Vijnanesvara comment on the word anvaya is putrapautradih which, being a bahuvrihi, means "headed by the son and the grandson" or as usually rendered "the son, the grandson, and the like, or so on," The word adi is used on the ejusdem generis principle, and we are not impressed by, nor can we give effect to Professor Sharma''s suggestion that the anvaya in Yajnavalkya II. 175 ought to include the wife; Hemadri also in the Chaturvarya-Chintamani renders the word anvaya in this verse by santane, which would clearly exclude the wife. Vijnanesvara''s interpretation is distinctly against Professor Sharma''s suggestion, for he explains the condition anvaye sati by referring to the text:

Having begotten sons he should duly initiate them and provide for the maintenance of these.

The Mitakshara, which does not seem to have impressed the Professor''s philological sense (see p. 423 of his evidence) is after all not without authority even in Mithila; and it is not open to the Courts by a novel interpretation of the not uncommon word anvaya to include the wife in its denotation on little more than philological and etymological grounds. The word anvaya is also found in Yajnavalkya II. 117 tabhyasritenvayah, which Colebrooke has rendered by "and the issue succeeds in their default" - see Colebrooke''s Mitakshara, I. 3. 12. This was in answer to the question "who takes the residua of the mother''s goods if there be no daughter." The Mitakshara here explains anvaya by putradih which Colebrooke takes to mean "the son or other male offspring." Visvarupa makes it sons only (see Ghose Vol. 2, p. 21). The context of course excludes the possibility of the word anvaya including the wife, but such interpretations are in accordance with Amarasinh''s synonym santati, or santana.

This verse is also quoted by Vachaspati Misra in his section on succession to a woman''s separate property, and his comment on the word anvaya which comment is ignored by Tagore altogether though he translates the word by "issue": (see p. 268), is that it means the granddaughter and the grandsons, according to the text of Manu: (see Setlur, p. 258). The word anvaya is also found in another verse, Narada XIII. 2, quoted by Vachaspati Misra in his first section in the Ghapter on partition. The Calcutta edition contains one obvious misprint in this verse - the long u of the second word being printed as short. It also prints the concluding word of the verse as tadanvayan, but this seems to be a misprint for tadanvayah for the context does not require the plural, anvaya being a collective noun in ordinary use.

The parallel verse from Yajnavalkya II. 117 uses the singular; the Bombay edition, Dr. Jolly and the Vivada Ratnakara (p. 456), and also the Mitakshara which quotes the verse at II. 11. 18, all have the singular; and we have not been referred to any work which in such a context uses the plural. Vachaspati Misra in his comment on the verse seems to agree that the word means the sons of the daughters in whose default they are to take the property. Here again the context makes it impossible for the word anvaya to include the wife but it is noteworthy that Vachaspati Misra does not suggest for the word a wider interpretation than that of Vijnanesvara on Yajnavalkya II. 117. Dr. Jolly''s foot-note on this verse at p. 189 of the Sacred Books of the East, Vol. 33, is that according to the usual explanations the male issue of the daughters is meant though there is nothing in the text to warrant an exclusion of the female issue of daughters. Here again the accepted interpretation of the word does not extend beyond the issue. The Smriti Chandrika, Ex. 10 (Mysore edition, p. 663), noticing Yajnavalkya II. 117 and Narada XIII. 2, refers to the impossibility of unmarried daughters having anvaya, and thus clearly uses the word in the sense of issue. In his chapter on non-payment of wages or hire Vachaspati Misra quotes a verse of Katyayana lying down that a female slave who bears her master a son must;

in consideration of her progeny (bija, a word which will have to be referred to again) be enfranchised with her child." (Tagore p. 91).

The original of the expression "with her child" is "sanvaya," and Vachaspati Misra in adopting the comment of the Prakasa, the Ratnakara, and the Parijata on the verse accepts the paraphrase of the word, if indeed he does not make it himself, by svajanitaputrasahita, "with the son borne by herself." As in this context it was a woman''s anvaya that was being spoken of, the word could not of course include the wife, but it is important to note that other relatives of the woman are also all necessarily excluded. Near the end of the section of partition during the life-time of the father two verses are quoted under Tagore''s heading "of a coheir" in which the expressions tadvanshasya and tadanvayasya occur; these are rendered by Tagore (p. 241) as "(of) his male descendants" and "(of) his lineal descendants," Setlur Tendering both vansa and anvaya by progeny. Much reliance has been placed by Mr. Jha on Vachaspati Misra''s comment (along with its sequel) on a verse of Katyayana''s in the section on "Succession to property of re-united parceners"-(Tagore, p. 307, and Setlur, p. 273).

The verse is thus translated by Colebrooke in his digest Book V. Ch. 8, Section 1, verse 427:

on failure of nearer claimants, re-united brothers must be considered as heirs of those who are re-united and disunited brothers of those who are disunited; (for) they reciprocally share (the estates) if they have no progeny.

Neither Tagore nor Setlur has rendered Vachaspati Misra''s comment on the verse at all closely, and the attempt of the appellant to get a translation of it from Dr. Jha in his cross-examination was not very successful. That comment seems to be as follows:

He (Katyayana) qualifies by "nirbija etc." the statement already made that in default of one, another is to take the property. The meaning is that being without issue (anvaya), they inter se take each other''s property.

This will become clearer if it is observed that the second half of the verse speaks of abhave, "in default," and of nirbijanyonyabhaginah, "without issue, taking on another''s shares." Vachaspati Misra in the first sentence takes the abhave to mean not the default of nearer heirs (as Colebrooke apparently did) but the death of one of the persons spoken of re-united or otherwise; according to the Ratnakara however, the word means bharyadyabhave, "in default of the wife and the like," but it has not even been argued that this makes any difference to the point that the appellant has endeavoured to make. The contention is that as Vachaspati Misra has paraphrased the term nirbijah by niranvayah, and has said that persons who are niranvaya take the shares of one another, and as, further, in the summary of the chapter that follows immediately after, the wife is placed among the heirs of a re-united parcener between his son, grandson or great grandson and his re-united parceners, he must be taken to have included the wife in the anvaya of the deceased.

The summary however which is rendered by Dr. Ganganath Jha at p. 138 of the evidence, makes inheritance by the wife conditional on her being fully endowed with several qualifications and turning her back upon the eight forma of sexual intercourse; and in any case Vachaspati Misra''s paraphrase by niranvayah, "without anvaya," of the plain word nirbijah, "without issue" occurring in Katyayana''s verse cannot be read with his summary of the whole section in order to determine what meaning he attached to the word anvaya in Narada''s quarter verse sarvasvam chanvaye sati. Katyayana''s word nirbija can only mean "without issue" and was in fact so interpreted by Vachaspati Misra himself when, dealing with Narada''s verse a little earlier: see Tagore, p. 306), he paraphrased it by nirapatya, a word which clearly means without issue. Ratnakara (p. 602) paraphrases it similarly by santana rahita, again clearly "without issue." Bija cannot mean the wife, and can only mean the issue or offspring: see for example Colebrooke''s Mitakshara II. 1. 18 where Gautama''s text is thus rendered by Colebrooke "or the widow of a childless man: and she may either remain chaste, or may seek offspring," the last word "offspring" being the rendering of bija in the original.

Several other passages have been referred to on behalf of the appellant in order to make out a case for the inclusion of the wife in the term anvaya. It does not however appear that they really go far towards establishing the contention. There is, for instance, a verse from Manu VIII.198 which Vachaspati Misra has quoted both in the Chapter on "Sale Without Ownership" and in the chapter on "Women and Other Matters,''" where Tagore has put in a heading "Gift or Sale without Ownership," which does not occur either in the Calcutta or in the Bombay edition, (Tagore, pp. 56 and 222). In the later chapter the Calcutta edition prints the word on which reliance is placed by the appellant as svanvaya but in the Chapter on "Sale with out Ownership" both the Calcutta and the Bombay editions print the word as sanvaya. The Ratnakara (p. 103) reads svanvaya. In Manu the word appears as sanvaya, and Dr. Buhler translates it as "A kinsman" (of the owner) - Sacred Books of the Bast, VII. 15, p. 289. As the verse prescribes different penalties for offenders according as they are or are not kinsmen of the owner, and as the latter are indicated by the term niranvaya, the contrasting term for the former would appear to be sanvaya and not svanvaya. Whichever reading is taken as the correct one, it does not appear that we have here anything very substantial affecting the question in issue.

Sanskrit grammar is too flexible to restrict us to any way of dissolving the compound svanvaya or the compound patyanvaya which has also been referred to from Medhatithi''s paraphrase of the word sapinda in Manu IX. 59, so as to compel the interpretation of anvaya by itself as a relative: we may for instance compare the ways in which the compound sanvaya is dissolved and interpreted in this verse and in Manu II. 168 which will be presently referred to. Stress was laid on the following translation by Dr. Jha of Medhatithi on this verse, Manu VIII. 198, at p. 246 of Part I of Vol. I of his Manusmriti -"If a relative," "sanvaya"; "anvaya" means relation; he who has some relationship is a "relative,"-such as the son, the wife, the brother and so forth." Dr. Jha says in his evidence that the inclusion of the wife in this translation was an accidental mistake. The two published editions of Medhatithi that have been referred to at the Bar-Mandlik''s and Gharpure''s-do not contain the word "wife" and Dr. Jha swears that he did not come across that word in any of the manuscripts consulted by him. Manu similarly prescribes penalties for niranvaya and sanvaya offenders in VIII. 331, and the commentators again take the word anvaya to mean sambandha, relation or connexion with the owner, but this does not seem to have any bearing on whether the wife is included in the anvaya of the husband.

It must be remembered that in the disputed expression putradaradyanvyanam, the word anvaya cannot possibly be taken in the sense of mere connexion, relation or association, or even of vansha, race or lineage, and that idiom and the context alone must be decisive, rather than such considerations as whether the wife has such a relation to the husband as to make her sanvaya in reference to him in other contexts. In Manu II. 168 it is laid down that a twice-born man who does not study the vedas but applies himself to other (and wordly) studies soon falls to the condition of a sudra with his anvaya. Dr. Buhler at p. 61 translates the word sanvaya by "descendants" Kulluka renders sanvayan by putrapautradisahitah, with his son, grandson and the like,'' and if this be somewhat vague, Medhatithi renders it by the expression putrapautradisantatya saha "with his progeny (santati) headed by the son and the grandson." The explanation given by these commentators in this contest seems to exclude the wife from the denotation of the term anvaya used as a collective noun, the use with which we are concerned.

We have not been referred to any context with the word anvaya in it which is more helpful in interpreting the same word in sarvasvam chanvaye sati. Reference was also made to the interpretation by the commentators Medhatithi and Kulluka of the word kula in such verses of Manu as II. 184, VII. 9, VIII. 46 and IX. 7. The last two however are plainly against the appellant-the "first makes kula a part of the gotra, and the second by the context excludes the wife and also the issue from the kula. In the first two the word is used in an extensive sense, and on Manu VII. 9 Kulluk specifically includes the wife in the kula. But the word is not only capable, as already shown, of meaning part of the gotra but is used in Raghu III. 1 with the word santati, an Amarakosha synonym of vansha but here used in the sense of continuance or perpetuation. This shows clearly that the synonyms given in the Amarakosha are always interchangeable - a proposition which should have been obvious but was ignored in the reasoning followed by Professor Sharma. In our opinion the word anvaya in Narada''s verse is not shown to have been taken by Vachaspati Misra to include the wife as belonging to the gotra.

The position thus is that according to overwhelming usage the word anvaya denotes the lineage or the descendants or posterity, that it is a collective noun, when referring to individuals, and that it is hardly ever used in the sense of a relative but generally indicates a body of relatives - issue, offspring, progeny, descendants, posterity etc., being the equivalents commonly used by lexicographers and translators of standing -though occasionally on account of metrical exigencies and the like the word may foe taken by upalakshana to denote an individual relative. Upalakshana is however not to be resorted to unnecessarily, and in the context putradaradyanvayanam, not only is there no particular reason for the application of it, but texts such as those of Narada XIII. 2, and Yajnavalkya II. 175, are sufficient to show that the word anvaya has been used in the sense of a body of relatives which the dictionaries identify with descendants or posterity and translators of standing take to be the issue or offspring or progeny.

If the word anvaya be used in this collective sense, the plural number of the compound suggests that we are dealing here not with a karmadharaya but with a dvandva. One of the appellant''s translators has said that there is no harm in the plural even if the compound be taken to be a karmadharaya and the word anvaya taken in the sense of a body of relations. The compound is however, not from a Smriti but from Vachaspati Misra''s own comment.

In interpreting the Smritis commentators often say that a singular or a plural number was not intended, but that the singular includes the plural and vice versa: Apararka, e.g. at p. 730 of the edition already referred to, says that the plural (vibhajatam) in Yajnavalkya II. 123 was (avivakshita). The reason is that the Smritis must be taken as they are while the commentators have to make the texts applicable to all manner of changed conditions. That principle however cannot apply to the comments of the author of the Vivada Chintamani, who cannot be lightly assumed to have used a plural where a singular would have been quite sufficient.

Other reasons for regarding the compound as a dvandva instead of a karmadharaya have already been given and no reason has been shown to us why the yathasankhya principle of interpretation should not apply in the context. The plural ending of the compound is, thus, another reason for holding that the compound is a dvandva, and not a karmadharaya, and that the comment means that what is necessary to the gift of a son, a wife and the sarvasva is the consent, respectively, of the son, the wife and the like, and the anvaya. If the adi after the dare be really a misprint or an inaccuracy in the manuscript, the vagueness introduced by that word in connexion with the consent necessary to the gift of the wife will disappear; but the term anvaya is itself vague in contexts where degrees of descent are material, and its precise denotation will have to be gathered as best as may. The gloss (dayo'' nvayagatam), which occurs in the section on Deya and will be dealt with later, and Vachaspati Misra''s later remarks about the necessity of consent, would seem to suggest that anvaya is restricted to heritable issue; Mr. Jha himself would confine it to heirs but not to issue or descendants. The word is also used in literature to mean retinue or attendants, but even the appellant does not contend that that sense is applicable here.

There is nothing in the present context to show that the wife is one of the persons included in that body of relations which is denoted by the word anvaya.

In putting his own gloss upon the texts Vachaspati Misra, like other commentators, may have been giving expression to peculiar customs already in force in Mithila or he may, occasionally at any rate, have been anticipating Mithila customs. In either case he could hardly have left undefined the perhaps vague term anvaya with its usual sense of descendants or issue, if it was his intention to include the wife in the denotation of that word. The appellant has thus failed satisfactorily to make out her contention that Vachaspati Misra makes the consent of the wife essential to the husband''s gift of his entire estate (sarvasva).

The question whether such a gift can be avoided because it was made without the consent of the anvaya is not discussed in this section, and must be dealt with later. After the eightfold adeya Vachaspati Misra turns to the deya, "what may be given," which, according to the verses of Narada at the opening of the Chapter, is of one kind only. He begins with a verse of Brihaspati, XV. 3, which has been thus rendered by Dr. Jolly at p. 342 of the Sacred Books of the East, Vol. XXXIII:

What remains after defraying (the necessary expenses for) the food and clothing of his family may be given by a man; otherwise (by giving more than that), the religious merit (supposed to be acquired by the giver) though tasting like honey at first will change into poison in the end.

After this quotation the Bombay edition gives Yajnavalkya II. 175-(Gharpure pp. 311 to 318), but this verse is not given in the Calcutta edition. "We next have a verse of Katyayana the correct reading of which is in dispute. The reading in the Calcutta edition may be closely rendered as follows:

Except however (1) the whole estate and the dwelling house, what remains after the maintenance of the family - the wealth which is (self-acquired/one''s own) may be given; that may not be given which is other than this.

Then comes the comment:

Even (out of) what is one''s own, that, which is in excess (i.e., of the maintenance of the family) may be given. In giving what is not in excess, (one incurs) sin; but as regards that which is in excess, (one obtains) merit. Here, as (the text is) that "donor''s religious merit will otherwise be... (2) (scil. When that is given away which is not in excess of the maintenance of the family), it is not only that there is no acquisition of merit on the ground the that is not done which is ordained, but sin is) also (incurred) for doing that which is forbidden. Nevertheless the gift does take effect, as there is sufficient reason seen (for it, viz., in the title of the donor).

(1) ''tu'' in the original.

(2) Last quarter of Brihaspati''s verse quoted above.

All this comment is found in what appear from the Calcutta edition to be two sentences, the first ending with the first sentence in the above rendering. Having regard to the contents of the various; sentences in the original, the punctuation appears to be defective. Vachaspati Misra continues:

Consequently it cannot be resumed; thus a gift of what is not one''s own cannot be effected, similarly in the case of immovable property also: so (says) the Smritisara. As to (3) consent, that is necessary only in the case of what is joint (4) and not what is not joint,

He next quotes two verses of Brihaspati, XV. 4 and 5, which have been thus, rendered by Dr. Jolly (loc. cit. p. 342):

When any field (or house) is given away, belonging to a number of houses or fields acquired in one of the seven modes of (lawful) acquisition, it is ordained to be viewed as a valid gift, whether it has been inherited from the father or acquired by the donor himself." Self-acquired property may be given away at pleasure (by its owner); a pledge may be disposed of according to the rules of mortgage; in the case of property received as a marriage portion, or inherited from an ancestor, the bestowal of the whole is not admitted.

The comment on this is a quotation from Manu, X. 115, preceded by "Saptagamah (means) seven-fold acquisition." This is plainly not quite to the point, as the word saptagamah in Brihaspati''s first verse is used as an adjective and the compound ought therefore to have been expounded as a bahuvrihi. That however is a small matter, and the word leads to the quotation from Manu which is thus rendered by Dr. Buhler (Sacred Books of the East, Vol. XXV, p. 426):

There are seven lawful modes of acquiring property, viz., inheritance, finding of friendly donation, purchase, conquest, lending at interest, the performance of work, and the acceptance of gifts from virtuous men.

Vachaspati Misra''s comment on this verse is:

Here daya (''inheritance'') (means) what has come (from an/by reason of) anvaya; lahha (5) (means) finding of treasure and the like; purchase is well known; conquest (is) in battle; prayoga, (5) interest; performance of work, agriculture, trade and the like.

(3) ''tu'' in the original.

(4) ''madhyaga'' in the original.

(5) Rendered by Dr. Buhler, as ''finding'' or ''friendly donation'' and ''lending at interest ''respectively.

The important point in this comment is Dayo'' nvayagatam, regarding the interpretation of which the parties are not agreed as shown by the alternative renderings given above according to the appellant and the respondent respectively. Vachaspati Misra''s next sentence in the Calcutta edition is:

(All) this (is) by way of illustration. (The gist is) that whatever becomes one''s own in any manner whatsoever, (if) not owned in common with, others, (may be given) simply at one''s own pleasure, but (if) owned in common with others, may be given when consented to by them. Property inherited from an ancestor, (1) though immovable, must (in the above reference be) undivided.

The comment continues:

For it is said: When however a marriage gift, or inherited property, (2) or what has been obtained by valour, is given with the assent of the wife, kinsmen, or supreme ruler, the gift acquires validity-(Dr. Jolly''s translation of Brihaspati XV. 6 at pp. 342-3 loc. cit.

Vachaspati Misra then begins his comment on this verse of Brihaspati as follows:

Marriage gift (3) (means that) which is received at (the time of) marriage for use by the bride; it is only when such property is being given away by the husband that the consent of the wife is necessary, for this is consistent with reason, but not clothes, etc., which are received by the husband even for his own use, because that would involve extending the Smriti to unintended (lit. unseen) objects. Even in respect of inherited property, (2) (which is) undivided, (whether) immovable or moveable the consent of other sharers is necessary (for a gift to others)....

The first point in dispute between the parties on this treatment of deya by Vachaspati Misra is what it is that according to him may be given. According to the opening verse of Brihaspati, a man may give that which remains after defraying the expenses of the food and clothing of his family; deya would thus appear to be all that belongs to a man, his sarvasva, minus what is required for the maintenance of the family. Katyayana''s verse as given in the Calcutta edition put this somewhat differently: not only does it except the maintenance of the family and, further, the dwelling house, from the deya, but it also classes, the entire estate as an exception along with the dwelling house; and it says that dravya, wealth, which is suaka may be given.

It has been urged on behalf of the appellant that dravya here means moveable property only. This contention is plainly wrong. If that was the sense in which the word was used by Katyayana, the house could not have been made an exception. It is, true that the word dravya is sometimes used in the sense of moveable property or chattels, as for example in Yajnavalkya II. 121 (Colebrooke I. 5.3.) But the word is commonly used in the sense of property in general. Vijnanesvara''s well-known definition of vibhaga, partition, or distribution, in the Mitakshara I-1. 4 employs the word dravya though Colebrooke''s rendering does not bring it out; Setlur''s rendering is:

(1) Dr. Jolly''s translation above, of Kramayatam in Brihaspati''s last line.

(2) Kramayatam.

(3) Saudayikam.

partition (vibhaga) is the adjustment of the ownership of many persons in the aggregata wealth by assigning particular portions of the aggregate to several ownership.

In I. 2. 6 Vijnanesvara, in referring; to the unequal distribution authorized by Yajnavalkya II. 114, uses the word dravya for the term "property" in Colebrooke''s rendering "this unequal distribution supposes property by himself acquired." Yajnavalkya II. 118 the word dravya is used for the word "estate" in Colebrooke''s rendering (I, 4. 1) "whatever else is required by a coparcener himself, without detriment to the father''s

estate..."; and in the next verse the

"hereditary property" of the translation is kramadabhyagatam dravyam. The Mitakshara comment on Yajnavalkya''s suretyship verse, which has been quoted already, speaks of dravya-vibhaga irrespective of whether the property is moveable or otherwise. The word is similarly used in the opening verse in the present Chapter on gifts.

It is not necessary to labour the point any further; to restrict the word to moveable property is to disregard well-known passages from the Mitakshara and treat with indifference the logic of the verse. It is also impossible for similar reasons to attach much importance to the appellant''s contention that svaka in the verse means not merely "one''s own," which would be expressed by sva without the addition of ka, but "acquired by one-self." Pandit Ishwari Dutt went the length of suggesting that metrical exigencies might have led Katyayana to use svaka instead of svoparjita, a word which would unmistakably mean "self-acquired." It will however not be difficult even for a school boy to replace the svaka of the verse by svoparjita and read that quarter of the verse as (dravyam svoparjitam deyam). The affix ka more often than not makes little or no difference in the meaning. In the section on persons excluded from inheritance, for instance, Vachaspati Misra quotes Yajnavalkya II. 140 after quoting Manu IX. 201-203, and the unamatta and anansa of Manu become unmattaka and niransaka in Yajnavalkya without any difference whatsoever in the sense.

In the section on the Sons, the datta and the kritaka of Yama appear as dattaka and krita in Yajnavalkya II. 130-131 quoted by Vachaspati Misra after datta and krita in Narada, Manu, Baudhayana, and Vishnu. As regards the word svaka itself, we have Manu IX. 207 quoted by Vachaspati Misra in the section on Jiyatpitrika-vibhaga using the words (svakadanshat) which Kulluka takes to mean the same thing as the (svatsvadanshat) of Manu IX. 118, quoted by Vachaspati Misra in the next section but one. The word svaka is used by Manu of a father, eyes, seat and body in III. 220, and IV. 44, 154 & 184, and according to Pandit Ishwari Dutt means no more than one''s own" emphatically. In Manu IX. 199 it is laid down that women shall not make abstraction even from the husbands (svaka vitta) without permission.

The expression is translated by Dr. Buhler (p. 372) as their husband''s particular property. The verse is quoted in the Vivada Ratnakara in the Chapter on Duties in respect of stridhan; and Chandesvar Misra''s comment on the adjective svaka is that it refers to "husband''s property held not in common with other members of the family"-(see Sarkar, p. 33)-which is by no means the same thing as "self-acquired." In the Smriti Chandrika the word svakam occurring in this verse of Katyayana is paraphrased yatheshtaviniyogarham, which means capable of being disposed of at one''s discretion. There is nothing in the context of the Chintamani to indicate that the word svaka in Katyayana''s verse was taken by Vachaspati Misra to mean self-acquired, and there is therefore no reason why the third quarter of the verse should not be rendered in the way contended for by the respondent-"the wealth which is one''s own."

Another point that has been disputed in connexion with this verse is whether it is correctly read with sarvasva as a member of a compound ending with variant or varjjam, (meaning, except), or as a noun in the nominative case, in the form sarvasvam, so as to be the subject of the sentence. The Calcutta edition gives the former reading, and this is also found in the Smriti Chandrika. The Bombay edition and the Vivada Ratnakara give the other reading, which is also found at p. 149 of the Vivadarna-vasetu, p. 144 of Hemadiri''s ChaturvargaChintamani and p. 255 of the Parasaramadhava in the Bibliotheca Indica Series.

If we take the reading of the Calcutta edition of the Vivada Chintamani, a man may give away whatever is his own with three exceptions: (1) the entire property (2) the house and (3) whatever is necessary for the maintenance of the family, though the last item is not expressed in the form of an exception like the other two which are governed by the ending varjjam.

The difficulty that arises on this reading is that if the house is not to be given away, and if further a man must not part with whatever may be necessary for the maintenance of the family, there seems little point in providing that he may not give away his whole property; the exception of the sarvasva will only operate in the very rare, if not practically impossible, case of a man who has no house and who requires nothing for the maintenance of the family. The other reading is shortly resisted by the appellant because it would make the sarvasva alienable, and it is pointed out that if the word be read in the nominative case, the grammatical construction of the sentence becomes a little awkward in that there would be an extra nominative with which the other nominative dravyam will have to be taken to be in apposition. It seems to us that the appellant''s translators have made far too much of this slight grammatical difficulty and far too little of the logical difficulty involved in making an exception of the sarvasva when the house and the maintenance of the family must in any case be saved, and the maintenance of the family is, moreover, excepted in a form independent of the sarvasva and mentioned after it.

It appears from pp. 423-424 of Vol. 1 of Colebrooke''s Digest (Higginbotham, 1874), Book II Ch. 4, Section 2, verse 10 that Jagannath took the same reading as the Calcutta edition of the Vivada Chintamani, but in his comment noticed the other reading with the word sarvasva in the nominative case. For practical purposes it does not seem to be very material which reading is taken, for even on the Bombay reading the sarvasva does not, on this verse alone, really become alienable because it is subject to the two exceptions of the house and the maintenance of the family. It is true that the verses quoted from Katyayana himself in the section on Adeya make sarvasva inalienable except in a time of distress, but there is really no contradiction between that provision and the present formula with its exceptions, the earlier verses dealing in substance with the occasion of the gift-to which Vachaspati Misra attaches the consent of the anvaya as a condition -and the later with the extent of that which may be given.

Vachaspati Misra, in his comment on Katyayana''s versa as given in the Calcutta edition, does not expressly say that he agrees in Smritisara view referred to. The Smritisara has not been produced by either party, and it is not easy even to say with any degree of certainty how much of the comment is intended to give the Smritisara view and how much the view of Vachaspati Misra himself. At the same time, there is nothing in the passage as printed in the Calcutta edition (or in the Bombay edition either) to indicate that Vachaspati Misra was here giving expression to a view in which he did not himself concur. It will be seen later, when we come to Brihaspati, XV. 7 or XXV. 93, that he apparently adopted the factum valet view in the present comment for himself: the gift does take effect and cannot be resumed

The words, moreover, that intervene between the mention of the Smritisara and that of Brihaspati can only be taken as Vachaspati Misra''s own comment: "As to consent, that is necessary only in the case of what is joint and not what is not joint." This passage will have to be referred to again when we deal with the quotation dampatyor madhyagam dhanam from the SraddhaViveka, because here too we have the word madhyaga which has been translated as "joint."

Much stress was laid on behalf of the appellant on Vachaspati Misra''s comment on the verse from Manu, dayo'' nvayagatam. The appellant would translate this by "Daya (means) what has come from an anvaya," the object being to establish that the wife is an anvaya of the husband because the husband does sometimes inherit to her. The compound anvayagatam is capable from a grammatical point of view of being dissolved in more than one way. Appellant''s way has the disadvantage of taking the word anvaya in a sense - the sense of an individual relative - which is not found in the dictionaries or in ordinary usage. The respondent would take the compound to mean "come by reason of anvaya," capable as the last word is of meaning relation in the abstract.

This way of dissolving the compound fits in with the Mitakshara definition of daya:

The term heritage (daya) signifies that wealth which becomes the property of another, solely by reason of relation to the owner" - Colebrooke''s Mitakshara I. 1. 2.

The comment Dayo'' nvayagatam is not peculiar to Vachaspati Misra but is also found in Kulluka and Medhatithi on Manu X. 115. The word anvaya also means succession, and it is possible to treat anvayagatam in the same way as the word kramayata which occurs in the quotation from Brihaspati and also in the subsequent comment of Vachaspati Misra himself. Expressions like kramayatam such as karmadayatam and kramadabhyagatam (already referred to) occur in many places in the Mitakshara such as I. 4, 2 and 4 where Colebrooke has rendered them by "descended in succession'' or "inherited in regular succession."

The context was not one in which Vachaspati Misra was at all likely to put a forced meaning on the word anvaya and we are not satisfied that this portion of the comment can really be taken to show that the word anvaya does mean a relative. When Vachaspati Misra says that the gist is that whatever becomes one''s own in any manner whatsoever, if not owned in common with others (asadharanam), may be given simply at one''s own pleasure, but if owned in common with others, may be given when consented to by them, he states a perfectly intelligible doctrine which throws much valuable light on his statements about vimati and sammati in the section on adeya. He affirms the same position in the last sentence which has been thus rendered above:

Even with respect to inherited property, which is undivided, whether immovable or moveable, the consent of other sharers is necessary for a gift to others:

this on Brihaspati''s verse about the gift of kramayata property taking effect, just after the verse which denies "the bestowal of the whole." Mr. Jha has contended that the word bhagi, sharer, in this sentence will apply to the wife because of Vachaspati Misra''s concluding sentence in the comment on Yajnavalkya II. 52. We are not prepared to accept this contention for the reasons already indicated; whether in the husband''s self-acquisitions or in the ancestral property, the wife is only to receive a share in conditions which cannot be brought about by her, and as the discussion about the consent of the anvaya to the gift of sarvasva does not show that Vachaspati Misra considered her consent necessary, we cannot suppose that he used the word bhagi in the present context to include her among other coparceners as ordinarily recognized.

The discussion of deya in the Vivada Chintamani thus seems to show that the sole owner of an estate is entitled to alienate it, provided he does not part with the house and with whatever may be necessary for the maintenance of the family, that a gift will stand even if it violates the injunction that what is necessary for the maintenance of the family must be excepted, and that it is only in respect of undivided, inherited or other property that the consent of other cosharers is necessary to a gift. Why the question of consent should arise at all in respect of divided property is not discussed in the portion translated, but a little later, there is quoted a verse which seems identical with Brihaspati, XV. 7 or XXV. 93, but is given there without the name of the Smritikara, though we find it cited under the name of Manu at the end of the section on reunion under a special heading found in Tagore: see p. 309, para. 3.

The verse also occurs in a passage from the Dvaita Parisishta relied upon by the appellant, and will be again referred to later.. Setlur''s reading of the passage from the Vivada Chintamani is much closer than Tagore''s and is as follows:

As for the text: ''All co-heirs are alike in respect of immovable property, whether they are divided or undivided. Any one singly is always powerless to give away, pledge or sell." This is intended to lay down that one singly is powerless in respect of property which has not been actually divided into shares, but is enjoyed in common and that where so divided, each can do independently whatever he likes. Some others think that this passage is intended to lay down that the consent of even the divided parceners should be obtained to remove all suspicion of their being undivided.

Vachaspati Misra also deals with the same verse and offers similar comment on it in the section of deya, which is roughly summarized in the first five paragraghs on p. 79 of Tagore''s book. It is important to note that the last words of this passage are which Tagore renders by "the gift of an article which belongs to the donor, cannot be recalled."

Tagore has omitted the adjective svatantra, independent, which qualifies the svami, owner. We have not been referred to anything said any where else by Vachaspati Misra against this last opinion, which seems to be his own. It is convenient to recur to this point later.

Reliance was also placed by the appellant on one'' or two sentences from the Dvaita-- or (suslishta) (parisishta). It is difficult to follow them without the context, which it is therefore necessary to set out in full. We begin with a verse (on p. 34) which as remarked already, is dealt with by Vachaspati Misra in his sections on Deya and Reunion, and which can be identified with Brihaspati (XV. 7 or) XXV. 93 and has been translated by Dr. Jolly (p. 384, Sacred Books of the East. Vol. XXXIII) as follows:

Whether kinsmen are united or separate, they are all alike as regards immovable property as no one of them has power in any case to give, mortgage or sell it.

The comment on this is:

Some (say) on the authority of the words actually found (lit. heard) here that one (alone) has no power of sale and the like regarding even divided immovables. That is not so, because it is opposed to many texts. But where though (kinsmen are) divided, there has been no demarcation of their shares, (i.e., the immovable property) still remains common (1), and since it is thus common (2) (to many), one (alone) has no power. As regards all divided property without exception (1) (a transaction) takes effect which is carried out by (an) independent (owner) only; otherwise the precept (in the texts) would come to ought (2).

(1) Madhyaka.

(2) Sadharana.

After this we have Brihaspati''s verse on the eightfold adeya XV. 2 (Dr. Jolly p. 342) which has been already referred to. The comment on this verse is as follows:

Here also (it is meant) that a gift does not take effect by reason of the texts in case of the absence of the consent of the son and the wife, and (in case) of one''s entire wealth when there is (any) anvaya living. In actual fact however there is no ownership over the wife since (she) is only obtained as a wife. (If it be asked) how then did Harishchandra sell her (i.e., his wife), (the answer is) they (i.e., persons like Harishchandra) surely were almost like gods and therefore this (i.e., Harishchandra''s example) is of no consequence. In the opinion of the Smritisara however as regards the entire wealth a gift does take effect even though (made) by a man who has (some) anvaya, for it is made by an independent owner his manifest ownership being a sufficient reason (i.e., to support the sale); but the doner incurs sin on account of doing a forbidden act. But that is not so. It might have been so if there had been no express prohibition of it.

The author then gives Narada IV. 4--5 (Dr. Jolly, p. 128) and offers the following comment:

The entire wealth may not be given even with the consent of the anvaya, as (its) gift is prohibited in case of its very existence. So (say) some and this is right, for there is no counter-exception, as Katyayana (by his verses). (These) should not be subjected either to a sale or to a gift, (if they be) unwilling, etc., has laid down the gift and sale--with consent--of a wife and a son only.

It is to be observed that in this passage the author clearly recognizes in his comment on Brihaspati XXV, 93 that where property has been actually divided among the coparceners, each may independently dispose of his own share. He does this inspite of the text and says that the text is opposed to many other texts. He also treats the words madhyaga and sadharana (the original apparently wrongly prints madhaka eva) as meaning much the same. The rendering of the first sentence of the comment on Brihaspati''s verse about the eight-fold adeya that we have adopted follows the original closely.

(1) To express the effect of the word "eva" in the original.

(2) Pandit Iswari Dutta''s translation at p. 509 of the evidence is "otherwise there is danger of a contrary order."

The appellant''s translators endeavoured to make out that the sentence dealt with the gift of sarvasva only, and that the absence of consent of the son and wife and the existence of anvaya were both of them conditions which made the text prohibiting the gift of sarvasva applicable. They even went the length of maintaining that the words chanvaye sati were an anticipatory quotation from Narada. It is true that two verses from Narada containing these words are actually given a few lines afterwards, but quotations consisting merely of a conjunction cha and a locative absolute anvaye sati and conveying no complete idea by themselves and not marked by the usual iti are not often found. What is more, Brihaspati mentions among his eight adeyas the son and the wife as well as the sarvasva, and neither Brihaspati nor Narada--between whose verses the comment occurs--says any thing about the absence of consent of the son and wife in regard to the gift of the sarvasva or even of the son and wife as is commonly read into Katyayana''s verses. The author''s comments about ownership over the wife and the sale of his wife by Harischandra also suggest that he did mean to deal with the sale of the wife in addition to the sale of the sarvasva in his first sentence on Brihaspati''s adeyas. The words chanvaye sati are in the context more than, capable of fairly introducing a second instance of failure of gift by reason of the text, while the word putradaravimatu, read with the expression vaohanabalad danasiddhih, makes a complete sentence, leaving it to be easily understood that it is the gift of the son and the wife that fails for the reason given.

A statement of that kind is not inappropriate as a comment on Brihaspati, and the appellant''s way of rendering the sentence has nothing in the context to recommend it.

It is also clear that Keshava Misra, the grandson of Vachaspati Misra, differed from the Smritisara view that the gift of one''s entire wealth does take effect even though the donor have some anvaya living, and that all that happens in such a case is that the donor incurs sin on account of doing a forbidden act. Keshava Misra refuses to accept that view on the ground that the text (of Narada) makes sarvasva adeya when there is anvaya living, which he (Keshava Misra) treats as an express prohibition of the gift. In his comment on Narada''s verses he recurs to the same point and shows from Katyayan''s verses (as he roads them) that consent would operate to validate a gift in the case of a wife and son only, but that there is no authority for holding that the sarvasva may be given with the consent of the anvaya. This view is not unintelligible, but it must be observed that it is not the view of Vachaspati Misra who has said both before and after Katyayana''s verses that the sarvasva may be given with the consent of the anvaya.

It is also not the view of the Ratnakara (p. 130) where in commenting on the verses of Brihaspati XV, 4 to 7, the author says on XV, 5 Sarvasvadanam anvayananumatya anumatyapi cha yaddanam tatsarvam vidyate, which in the context means that the gift of the entire property, which is not to be made according to the verse, is a gift without the consent of the anvaya, but that whatever gift is made with consent will all stand good. What becomes of a gift of the entire wealth, if made without the consent of the anvaya if any, will be considered later. Appellant has also relied on a maxim quoted in the Sraddha Viveka Sulapani to which a passing reference has been made before now. This quotation is dampatyor madhyagam dhanam. Colebrooke gives it in Book V, Ch. 8, Section 1, text 415, rendering it by "wealth is common to the married pair." In a foot-note he says:

I can nowhere find the text cited at full length: this much of it has been frequently quoted; but the author of it (Datta) is here named for the first time, and he does not rank among legislators.

The context in which this quotation occurs in the Sraddha Viveka was put to the respondent''s translators and deals with the question of whether a deceased wife is entitled to pindas independently of her husband or receives them through him. A quotation from such a context would prima facie be but a poor basis for a new construction of the Vivada Chintamani. It has not been shown that Vachaspati Misra himself has anywhere adopted the quotation. On the contrary, appellant has laid stress--as we have already said--on the omission of Vachaspati Misra, when commenting on Yajnavalkya II, 52 to take notice of Apastamba''s 19th Sutra which makes a wife an associate of the husband "with respect to the acquisition of property." The dictum dampatyor madhyagam dhanam has been noticed in several Hindu Law books, but has nevertheless not enabled any of the commentators concerned to hold that the wife''s interest in the husband''s property is such as to entitle her to claim a partition from him. The maxim was before the Court in Sorolah Dossee v. Bhoobun Mohun Neoghy (1888) 15 Cal 292, where the position of the Dayabhaga school as regards the wife''s interest in the husband''s property is dealt with in detail.

In his Dayatattwa (VII.7) Raghunandan quotes it from the Sradha Viveka in his comment on Yajnavalkya''s suretyship verse. He does so as apparent bar to partition between husband and wife, and his conclusion is that the maxim notwithstanding, there is partition between husband and wife in accordance with Yajnavalkya''s own verse

should the father make his sons participators of equal shares, he should allot equal shares to his wives"--(Sarkar pp. 40-41).

As to Vachaspati Misra, his division in the section on stridhan of bhartridaya, which he interprets as bhartri-dhanam, the wealth of the husband, into that which comes on his death to the widow in default of other heirs, and that which comes to her during his lifetime with his consent--becoming strisvatvaspada ''the subject of ownership by a woman''--is significant. If the husband can allow some of his property--her bhartridhanam--in his lifetime to become hers, the implication is that he can have property in which she has no ownership, and to that extent at least, the maxim dampatyor madhyagam dhanam will not hold good under the Vivada Chintamani. The Ratnakara also divides Katyayna''s bhartri-daya into two classes in the same way, and its interpretation of the word bhartri-daya as ''property which is the subject of the wife''s ownership through her relationship to the husband'' (Sarkar and Chatterji, VIII. 8 p. 34) is even more clearly against the applicability of the maxim dampatyor madhyagam dhanam to secular matters; if the maxim applied, there could be no property of the husband''s which does not also belong to the wife.

Vachaspati Misra''s treatment of Yajnavalkya. II. 114-115 in the section on jivat-patrika-vibhaga also shows that the husband is at liberty to give away or divide his self-acquisitions in any manner that he may choose and without any interference from his wife, provided only that where he chooses to give equal shares to the sons, he must also give equal shares to the wives unless they have already received stridhan from him or from their father-in-law. This also necessarily implies that the wife is not really a co-owner of the husband''s self-acquisitions, at any rate in the sense of being entitled to prevent him from giving them away. The maxim dampatyor madhyagam dhanam, if it be assumed to be applicable to such property according to the view of Vachaspati Misra, will therefore mean no more than that as long as such property is actually undivided, she is entitled to enjoy it in common with the husband. As regards ancestral property, we have already said that we have not been referred to any Mithila authority who deals with the position expressly. That the husband in Mithila may hold property independently of the wife, and thus irrespective of the maxim dampatyor madhyagam dhanam, will also appear clear from such texts as Manu IX. 199 which has been dealt with in the Ratnakara VIII. 2. This verse of Manu''s, which has been already referred to, lays down that:

women shall not make abstraction from family (property) common to many--Kutumbad bahumadhyagat--nor even, without the husband''s permission, from his own property--svakad vittat.

The comment of the Ratnakara, on this verse is thus rendered by Sarkar and Chatterjee (p. 33): "Here by the word "family" is intended family property by reason of contextual association: hence out of joint property "abstraction" i.e., secret appropriation of property, should not be made by woman without the permission of the owners. Likewise from even husband''s own property" i.e., from the husband''s property held not in common with other members of the family secret appropriation should not be made, without the permission of the owner of the property. "This is the meaning". The last passage shows that the word madhyaga was taken as equivalent to sadharana, though it has been suggested on behalf of the appellant that the words do not convey one and the same idea. The Dayabhaga (Colebrooke II. 48) took it that if property was madhyaga, it could not be divided. This passage was put to Dr. Bhagabat Kumar Shastri in the cross-examination for the appellant (see p. 58 of the evidence), but has naturally not been relied on by Mr. Jha.

Where the Dayabhaga has property held in common, the Mitakshara has joint property, but this distinction has little to do with us, and madhyaga and sadharana both apply to property that is not yet held severally. No attempt has been however made to show that the Mithila School has made any substantial distinction between the two words. Reference has already been made to the passage from the Dvaita Parisishta in which it was said that where though kinsmen are divided, there has been no demarcation of their shares, the immovable property still remains common (madhyaga or madhyaka), and since it is thus common (sadharana) to many, one alone has no power to dispose of it. The same passage occurs in Vachaspati Misra''s comment on Brihaspati''s verse, XV. 7 or XXV. 93, in his discussion of Deya; and three or four lines afterwards Vachaspati Misra says that a gift made by an independent (svatantra) owner is not to be "recalled"--Tagore, p. 79 already referred to. Reference may perhaps be made here to a passage from Vachaspati Misra''s first section of the Chapter on Daya Vibhaga. The context is Manu IX. 104 quoted at the beginning of the section:

After the death of the father and the mother, the brothers, being assembled, may equally divide among themselves the paternal estate....

On this Vachaspati Misra considers inter alia an objection which is thus put by Tagore (p. 224):

Property over which the father has an independent right shall be divided at his pleasure while only, he is living. Therefore his demise is essential to the partition of the above mentioned property. But what is the necessity for the demise of the mother? She has no right whatever over it.

Vachaspati Misra does not meet the objection by saying that all property is common between the father and the mother,--dampatyor madhyagam dhanam--and that the mother is a co-owner with the father. On the contrary, he first puts out of the way a text of Sankha that: "They are not independent who have their father living, and so while their mother is living," with the remark that this text is meant not to bear on partition but to eulogies a mother possessing good qualities. He then re-states the objection in the form; according to Tagore (p. 225):

How can dependence, with regard to the partition of an estate, upon a person who has no right over it, be consistent with reason?

and meets it by saying that the term (paitrika), "paternal" in Manu''s verse, being formed by an ehasesha (uniresidual compound), includes the mother''s property as well, and that Manu enjoins waiting for the mother''s death only in respect of her wealth.

This also, like the bhartri-daya and other passages already referred to, implies that the husband was regarded as holding property In which the wife had no (svamya), ownership, certainly after his death and probably also before that event. Vachaspati Misra does not confine the verse to what must have been even rarer in former times than now--a case where there has been a separation in estate between husband and wife. Mr. Jha has endeavoured to meet this by urging that the property referred to in the comment as property over which the father has an independent right must be his self-acquired property. The difficulty in accepting this contention is that after the father''s death, there is no room, so far as the sons are concerned, for any distinction between ancestral property and the father''s self-acquisitions, and there is no reason to think that Manu''s verse was either intended or taken by the Mithila commentators to be confined to the father''s self-acquisitions.

It is true that the fourth quarter of the verse says of the sons that they have no power over the property while their parents are living, but this cannot be taken to indicate that the property in question was the father''s self-acquired property, for Manu made the son (like the wife and the slave) adhana and powerless even over his own self-acquisitions. The Mitakshara distinction between the lather''s self-acquired and ancestral property, as regards the son''s right to claim partition, has, it seems to us, no bearing on the comment of Vachaspati Misra on Manu''s verse. Mr. Jha refers to Vachaspati Misra''s comment on Manu IX. 199, quoted after the comment'' on Narada, XIII. 2, in this section, but that comment only makes a distinction between the paternal and the ancestral property as regards the son''s right of partition during the father''s life-time, and has no bearing on partition after the death of the father.

We are therefore not satisfied that in the Mithila School the wife is actually regarded as a coparcener of her husband and co-owner of property with him, on the dictum dampatyor madhyagam dhanam, which is not even shown to have been adopted in any of the leading Mithila authorities on Vyavahara or Law proper. The Mitakshara, as has been already shown, concedes the ownership of the wife in the husband''s wealth, but nevertheless does not recognize her as a coparcener of his in the sense of entitling her to demand partition from him, or avoid alienations made by him on his own account, or take his property by right of survivorship as a son does on account of his interest by birth. As a matter of fact there is no great difficulty about the translation of the maxim dampatyor madhyagam dhanam, though the respondent''s translators made many difficulties about it.

The translation of the other passages relied on for the appellant was however a different matter, and we have so far dealt principally with the arguments that were addressed to us on that point only. We have said that the translations or interpretations that the appellant asked us to place on those passages were novel, and the point of that observation is that it will be impossible, by a decision founded on a new construction of the words of Vachaspati Misra or other Mithila treatises, to run counter to what appears to be the current of modern authority--see Thakoorain Sahiba v. Mohun Lall (1867) 11 MIA 386. The argument advanced on Vachaspati Misra''s concluding sentence in his comment on Yajnavalkya''s suretyship verse would not even have been open to the appellant but for the fact that in the Mithila case of Ganesh Dutt Thakoor v. Jewach Thakoorain (1903) 31 Cal 262, their Lordships of the Judicial Committee had no occasion expressly to decide the point, though they did observe that:

there is no doubt that, according to the law in force in Bengal (their Lordships meant Mithila) the mother, though not entitled, to require a partition so long as her sons remained united, is entitled, if a partition takes place between her sons, to receive the shares of a son in property which is ancestral or acquired by the employment of ancestral wealth.

Most of the argument on behalf of the appellant was based on the assumption that the word of Vachaspati Misra was decisive in the Mithila School, so much so that it was even argued that if Vachaspati Misra put some opinion into the mouth of Chandesvar Thakur by a palpable mistake, it would not be open to us even to consider what Chandesvar Thakur himself had really said. No authority was cited for this extreme position. It is true that Tagore in his preface (p. 27) to the Vivada Chintamani says that this work "is a work of paramount authority in the province of Mithila or Behar;" but he himself bases this on Colebrooke''s observation that the Vivada Chintamani is among "the most conspicuous works" of the Mithila School and the observation of Sir William Macnaghten that in Mithila "respect is paid chiefly" to the Vivada Chintamani among other works. Tagore''s observation about the position of the Vivada Chintamani in the Mithila school has been repeated in some decisions, but Mr. Jha has not been able to refer us to any case where the Vivada Chintamani was followed in spite of a contrary view expressed in the Vivada Ratnakar and the Mitakshara. In a Mithila case decided by the Sudder Dewanny Adawlut as long ago as 1837, Surja Kumari v. Gandhrap Singh (1837) 6 Sel Rep 168, it was held that:

Allowing that the virtual exclusion of the daughter''s son was intended by Vachaspati Misra, his dictum could not prevail over the doctrine held by other Mithila authors and the texts of Manu and other Munis.

We have before us the 1873 edition of the volume (published by Sreenauth Banerjee and Brothers, Calcutta) which makes the following among other remarks on the case:

Vachaspati Misra comparatively is a modern Mithila writer, and however respected he may be for his learning, his authority for the exclusion or degradation of the daughter''s son cannot avail against the many strong texts of Munis, decisive of his right, and the concurring opinions of expounders including writers of Mithila. It is then more of curiosity than importance to investigate what really is the doctrine of the author of the Chintamani on the subject.... It seems therefore that Vachaspati Misra has omitted the daughter''s son from the series of heirs, but in a mode which exposes him to the imputation of ambiguity and inconsistency....

A foot-note against the last sentence quoted above says:

A popular rumour is said to exist in Mithila that Vachaspati Misra was dissatisfied with his own daughter''s son, his presumptive heir.

Mr. J.C. Ghose is not the only modern writer on Hindu law who expresses the view that the translation of the Vivada Chintamani into English before the Vivada Ratnakrar made the former a book of superior authority, though during the time of the Hindu Kings the Vivada Ratnakara had unquestioned authority in Mithila (see his Hindu Law, Vol. I, pp. 15--16). In the recent decision in Sourendra Mohan Sinha v. Hari Prasad (27) their Lordships of the Judicial Committee do not seem altogether to have accepted the position that the Vivada Chintamani is a binding authority in the Mithila School; for they observe (p. 110 of 7 PLT) that:

Assuming that the Chief Justice was correct in stating in the judgment that the Vivada Chintamani is an authority which is binding upon those who are governed by the Mithila School of Hindu law, the passages which have been cited as from it ... seem to relate only to debts....

The question of the relative authority of the Vivada Chintamani does not however really arise in the present case. We have already shown that in his concluding comment upon Yajnavalkya''s suretyship verse Vachaspati Misra cannot be held to have laid down any doctrine different from the Ratnakara, that the Dvaita Parisishta is also to the same effect as the Ratnakara, and that both these authorities, like the Vivada Chintamani itself, seem to be in agreement with the Mitakshara, in holding, not that the wife has a right to demand a partition at least of ancestral property in the hands of the husband (as has been contended for the appellant) but that in certain circumstances which are briefly but clearly indicated she is to receive the same share as each of the sons.

As regards the Chapter on the "Resumption of Gifts" the appellant principally relied on Vachaspati Misra''s disputed compound about the persons with whose consent a man may give away or sell his entire wealth. Our conclusion on the grammatical and philological contentions advanced before us was that the appellant has not succeeded in showing that Vachaspati Misra includes "the wife" in the anvaya whose consent, according to him, is necessary to the gift or sale of the entire wealth.

When we turn to Vachaspati Misra''s succeeding section on the deya, we-find him apparently saying on Katya yana that one may properly give away or sell all that belongs to one''s self in excess of what may be necessary for the maintenance of the family, that a gift which does not except the maintenance nevertheless does not fail, and that the consent of others is only necessary in the case of property owned in common with others.

In contrasting this with the proposition in the section on adeya that the entire wealth may not be given even at a time of distress except with the consent of the anvaya, it is useful to bear in mind that the great great grandson is a conceivabe example of a person included in the anvaya who nevertheless does not by birth acquire an interest in the ancestral property, that the gift of the deya has no particular reference to a time of distress, and that in this later section it is repeatedly affirmed that consent is only necessary in the case of madhyaga or avibhakta property, that the consent of the sharers must be taken in such a case, and that a man is free (svatantra) to give away his separate property.

The Dvaita Parishista, as already shown, expressly approves of the doctrine that the entire wealth may not be given even with the consent of the anvaya as the gift is prohibited in case of the very existence of anvaya and Vachaspati Misra''s comment on Brihaspati''s verse enumerating the eight kinds of adeya property does not make it clear whether he accepts, or like his grandson the author of the Dvaita Parisishta, differs from the opinion of the Smritisara that a gift of one''s entire property does take effect for the reason that it is made by an independent owner, though the donor incurs sin for doing a forbidden act. But he certainly differs from the view mentioned at the end of his comment on Katyayana''s verse in the section that the mere existence of anvaya is a bar to the gift of the sarvasva, and his view in this Adeya section is that the entire wealth may be given in a time of distress with the consent of the anvaya but not without it.

In the section on Deya he refers to the Smritisara view on Katyayana''s verse beginning with sarvasva.

There is nothing in this context--no "tu," even as in the comment on Brihaspati''s eightfold adeya--to suggest that he differs from the Smritisara. Nor is it clear that the observation nevertheless the gift is effective, as there is sufficient reason seen (for it, namely in the title of the donor)" is not a statement of Vachaspati Misra''s own opinion but is only a statement of the Smritisara view. The next sentence begins "consequently it cannot be resumed ..." and this shows definitely that the gift of the entire estate in violation of this text will stand.

This may however possibly, be part of a quotation from the Smritisara; but the observation that "as to consent, that is necessary only in the case of what is joint and not of what is not joint, "which follows some quotation from the Smritisara of which we cannot on the materials before us confidently fix the beginning, is clearly an expression of Vachaspati Misra''s own view. This is confirmed by Vachaspati Misra''s comment on Brihaspati XV. 7 in the same section ending with "a gift of an article which belongs to the donor cannot be recalled"--Tagore, p. 79, a comment which is repeated on the same verse (though cited under the name of Manu) near the end of the section on Reunion in the following words:

This is intended to lay down that one singly is powerless in respect of property which has not been actually divided into shares, but is enjoyed in common, and that where so divided, each can do independently whatever he likes"--(Setlur, p. 274).

It would therefore appear that according to Vachaspati Misra the gift of his entire property by the sole owner, whether he takes the consent of the anvaya or not, is on the whole not void even though the family may be left without the means of supporting themselves. At the end of his section on Adatta, the fourth and last section in the Chapter on "Resumption of Gifts," he cites a verse of Narada IV. 12 which is thus rendered by Dr. Jolly (p. 130):

Both the donee who covets invalid gifts and accepts them from avarice, and the donor of what ought not to be given who yet gives it away, deserve punishment.

"Invalid gifts" is Dr. Jolly''s rendering of Adatta in the original; Tagores makes it "what is deemed ungiven":

"what ought not to be given" is of course adeya in the original. It will be noticed at once that the verse treats as an offence the gift, but not the receipt, of what ought not to be given; unlike some other commentators Vachaspati Misra does not deduce from this the culpability of the receipt also--see also Colebrooke''s Mitakshara I. 1. 10. The Mitakshara, after dealing with Yajnavalkya II. 175, a verse which lays down that the entire wealth may not be given--is not deya--when there is issue (anvaya), introduces the next verse requiring acceptance to be public, especially of immovable property, as follows:

Having thus mentioned property which may be given (deya), with the exception of a wife and a son, the author mentions in that context the rule that property which is not alienable (adeya) should be accepted by the donee in public "--(Gharpure p. 313).

This suggests that according to the Mitakshara a gift of the entire wealth is valid even if the donor have anvaya, though it violates Yajnavalkya''s text. The doctrine of factum valet is, as has been pointed out in many cases, not peculiar to the Dayabhaga School of Hindu law. Vijnanesvara also adopts it in such passages as the one rendered by Colebrooke at I. 1. 30, as follows:

It (the consent of separated kindred) is not required, on account of any want of sufficient power in the single owner; and the transaction (gift, sale or mortgage of immovable property) is consequently valid even without the consent of separated kinsmen.

"On Yajnavalkya II. 130 the Mitakshara quotes Manu 9. 168 and apparently treats as valid the gift of a son, though made in breach of a condition (see Colebrooke, I. 11. 10). Of the eight kinds of adeya Vachaspati Misra has himself said that some are so because of want of ownership (svatva) while some others may not be given because of want of independence (svatantrya); in the case of sarvasva, there is ex hypothesi no want of ownership or of independence either.

The prohibition of a gift of the sarvasva seems to be of the nature of a moral and not a legal prohibition. The conditions referred to in some of the texts make it easy to see the object of the prohibition. If according, to Narada, the sarvasva may not be given when there is anvaya, this prohibition is taken by Vachaspati Misra to mean that where there is anvaya, its consent is necessary to the gift. The verse of Katyayana quoted in the section on deya in substance empowers the sole owner to give away all his property with the exception of the house and what may be necessary for the maintenance of the family; and Vachaspati Misra''s comment, as we have already shown, indicates, when read with his dicta in allied contexts, that in his view a gift is not invalid merely because it does not except the maintenance of the family.

The easiest way of reconciling the conflict would appear to be to uphold the gift subject to a charge for maintenance. Jagannath commenting on this verse gives the definite Dayabhaga view that a gift of the entire estate is not invalid. Modern scholars of standing like Mr. Golap Chandra Sarkar, Shastri, (Hindu Law, Ch. 16) and Dr. P.N. Sen (Hindu Jurisprudence, Tagore. Law Lectures 1909) take "the rule that the extent of a person''s gift should not be such as to deprive his family of the means of subsistence" or "the prohibition of the gift of the entire property when there are sons to be provided for" to be "nothing more than a moral or religious injunction and the excess of the limit thus laid down cannot be a ground for holding the gift invalid"--Tagore Law Lectures, 1909, p. 85.

In Balwant Singh v. Hani Kishore (1898) 20 All 267 their Lordships of the Judicial Committee, dealing with the texts bearing on the alienation of immovable property acquired by a Mitakshara father, observed:

It appears to them that the subject is one of those in which from the earliest times there have been two conflicting principles of law, one favouring the perpetual integrity and the fixed succession of family property, and the other the free use of such property for the circumstances of the day, The controversies and conflicting decisions on the father''s powers of mortgage and sale, on the payment of his debts out of the inheritance, and on the testamentary power, will occur to everybody who is familiar with Indian litigations of the past century or so. On each of these subjects there has been a growing tendency, coincident with the growth of commerce, to give more effect to the latter of the two principles, viz., the use of property by the living generation, or its living heads.

After noticing the Mithila case of Raja Bishen Perkash Narain Singh v. Bawa Misser (1873) 12 BLR 430 among the other cases, their Lordships adopted the view that notwithstanding the conflicting nature of the original texts in the Mitakshara a Hindu in his life time has a right to dispose of his self-acquired property, whether moveable or immovable according to his own pleasure. The bulk of the property we are concerned with in the present case is ancestral property, the Anandgarh estate, which had fallen to Ugra Mohan''s share exclusively at the partition with his step-brother. The nature of the prohibition as regards the gift of such property is much the same as what was considered in Balwant Singh''s case (1898) 20 All 267 or in the adoption case from Balusu Gurulingaswami v. Balusu Ramalakshmamma (33); and the appellant has not succeeded in showing that according to Vachaspati Misra the wife has such an interest in the ancestral property as to entitle her to any voice in its management or disposal by the husband. There is moreover one peculiarity of the Mithila School which goes very much against the appellant''s contentions that the Mithila wife is coparcener of her husband and that it is not competent to him, without her consent to give away his whole property.

This peculiarity is the doctrine of adoption in the Kritrima form. In a case decided as long ago as 1812, Sreenarain Rai v. Bhya Jha (1312) 2 Ben Sel Rep 29 at p. 34, the pandit of the Saddar Dewanny Adwlut gave the following exposition, which does not seem to have been challenged in any subsequent case:

If a man appoint another his adopted son, that person, so adopted, stands in the relation to him of a son, and offers up his funeral oblations, and is heir to his estate; but the person, so appointed, does not become the adopted son of the adopter''s wife, nor does he offer funeral oblations to her, nor succeed to her property. If a woman appointed an adopted son, he stands in the relation to her of a son, offers to her funeral oblations, and is heir to her estate; but he does not become the adopted son of her husband, nor offer to him funeral oblations, nor succeed to his property. If a husband and wife jointly appoint an adopted son, he stands in the relation of son to both, and is heir to the estate of both. If the husband appoint one person, and the wife another, adopted son, they stand in the relation of sons to each of them respectively, and do not perform the ceremony of offering funeral oblations, nor succeed to the estate of the husband and wife jointly; such is the usage of Mithila.

The husband can adopt in this form without any religious ceremonies and independently of the wife, and vice versa; land the Kritrima son adopted by the husband takes his property as heir to the exclusion of the wife. A son adopted in the duttaka form--a form which is not yet obsolete in Mithila: see Chandreshwar Prosad Narain Singh v. Bisheswar Partap Narain Singh (3), also excludes the wife; but unlike the Kritrima son he becomes a member of the adopter''s family and thus incurs obligations to the adoptive father''s wife. The Mithila husband''s power to adopt a Kritrima son to himself and thus prevent his wife from succeeding to his property goes far to show that her interest in his property is even weaker than under the Mitakshara.

What the appellant had to prove was that under the peculiar doctrines of the Mithila School she was entitled to avoid her husband''s bequest of the Anandgarh estate, his own separate property, reserving only a small allowance for her, and possibly made without her consent. We say "possibly made" because though the will is not before us, it was found by Chauduhri, J., against the appellant that the will had been signed by her, and Fletcher, J., with whom Richardson, J. agreed, also observed that one of the signatures that appears on each of the four sheets of the will is the signature of the appellant, and that there is no evidence to show the truth of her story that the signatures were obtained from her on blank sheets of paper for some totally different transaction. Attestation does not necessarily import consent, and it may be that the appellant has some better evidence--none has yet been produced--to support her story of the signatures and establish that she did not in fact consent to her husband''s testamentary disposition of his property.

But until that evidence is produced and accepted by the Court, the position naturally would be as was apparently the view of Chaudhuri, J., that she had in fact consented to the will. What she has tried to prove on the special texts placed before us is that she was entitled to demand partition from her husband and that the gift of his entire property by a Mithila husband is invalid. On the published translations of the Mithila law books the appellant never had any case at all. The special translation put in for her bear date 16th November 1924 (Pandit Iswari Dutt) and 16th July 1928 (Professor Ramautar Sharma). The arguments that we have dealt with in this case were being built up from day to day during the protracted hearing of the appeal. It is plain therefore that appellant''s story that:

she had been strongly advised by eminent counsel in England and in India that her right to get possession of the entire disputed estate was unassailable, under the Mithila law, in spite of the will set up by the other side which, even if genuine (which is denied) was void under the Mithila law,

must be unfounded. We are clearly of opinion that Vivada Chintamani does not give the wife the right to demand partition, and that all that that authority can be taken to have laid down is that, as under the Mitakshara, the wife is to receive a share equal to that of a son when her husband chooses to make an equal division of his self-acquisitions, or chooses or is forced by the sons to divide the ancestral property. This qualified right, if it may be so called, to receive a share does not constitute her a coparcener of the husband.

We have observed that the maxim from the Sraddha Viveka regarding property being common to the married pair has not been shown to have been adopted by any of the leading Mithila authorities on Vyavahara, and that the Vivada Chintamani, like the Mitakshara, definitely lays down that in an undivided family a widow takes nothing by survivorship. This in fact led Mr. Jha to dwell on the rights of the wife as a wife, though what the appellant was seeking to enforce is her right not as a wife, but as a widow, in order to avoid the bequest. We are also of opinion that that consent that Vachaspati Misra speaks of is the consent of the anvaya and that it is by no means clear, to say the least, that Vachaspati Misra included the wife in that body. We are inclined, in view of what he says in the section on Deya as regards the necessity of consent, to think that Vachaspati Misra intended to restrict the anvaya whoso consent he considered necessary, to such descendants as acquire by birth and interest in the property in the hands of the father; if so, he could not have included the wife in the anvaya.

It seems to us that the prohibition of a gift of the entire wealth without the consent of the anvaya was understood by Vachaspati Misra himself to be in the nature of a moral injunction, and that even in his view a gift of the entire wealth made without the consent of the anvaya was not void.

The wife''s right to maintenance is a different matter from a right to avoid a gift of the entire property made by the husband. It will not be difficult to reconcile the wife''s right to maintenance, as laid down in modern decisions, with the factum valet view of a gift of his entire property by the husband; the gift may stand and the wife''s maintenance charged on the property as in Jamna v. Machul Sahu (1879) 2 All 315.

If the wife be assumed to be included in the anvaya, and if it be further assumed that her consent is so essential that a gift of the entire estate will, according to the Mithila School, fail unless it is made with her consent, the question would still remain whether that would entitle the appellant to avoid the bequest which is not a bequest of the entire property but makes an exception in favour of the appellant and may even have been made with her consent. She claims to have proceeded with the negotiations on the footing that she had a right to the estate in spite of her husband''s will. For the purposes of the negotiations she may have been entitled to assume that that was so, but it is impossible to conceive of eminent counsel in England and in India advising her that her right to get possession of the entire estate in spite of her husband''s will was unassailable under the Mithila law.

In our opinion the Mithila law does not entitle her to do so; she has signally failed to show that she was a coparcener of her husband, a claim which, if it means anything at all in the circumstances of this case, means a right of survivorship and the consequent right to avoid the husband''s testamentary disposition of the property against the survivor''s right to take the estate on his death. She has also failed to show that as a widow she is entitled to avoid the will on the ground that it was made without her consent. It follows that we must treat as entirely unfounded her contention that the compromise should not be given effect to because it is an unconscionable bargain.

These being our views, we are clearly of opinion that the plaintiff had very little chance of success in her suit for the estate on the ground of fraud, and in all probability equally little chance of success on the basis of the Mithila law as urged for her.

It is contended on behalf of the plaintiff that the maintenance, house rent and conveyance which the compromise gave her was what she would have got in any case even if her suit, for possession of the estate had failed. The decree for arrears of maintenance was also for no more than was due to her, as under the Hindu law she was entitled to maintenance from the time of the death of her husband, She therefore received no consideration whatsoever for surrendering her claims to the estate and her right to the jewellery and the gardens,

This compromise should therefore it is urged, not be recorded. We are unable to accept this contention. A compromise of a disputed claim stands upon a different footing from a transfer of a vested interest.

A compromise is an agreement to put an end to disputes and terminate or avoid litigation; and in such case the consideration which each party receives is not the sacrifice of a right but the abandonment of a claim:" see Trigge v. Lavallee (1862) 15 Moo PC 271.

In this case Lord Kingsdown observed that an English compromise is the same as the French "transaction" and is based upon the civil law, and that though the case was to be decided under the French law, the English law was the same. His Lordship referred to the House of Lords case of Stewart v. Stewart (1839) 6 Cl. & Fin. 911, where it was held by Lord Cottenham that the rule of the civil law was adopted both in England and in France. We think that in this respect there is no difference in any law based upon a civilized system. In Stapilton v. Stapilton (1789) 1 Atk. 2 Hardwicke, L.C., referred to Cann v. Cann (1721) 1 Wms. 723 in which Lord Macclesfield had laid down that an agreement entered into upon a supposition of a right or a doubtful right, though it afterwards comes out that the right was on the other side, shall be binding, and the right shall not prevail against the agreement of the parties, for the right must always be on one side or the other; and therefore the compromise of a doubtful right is a sufficient foundation of an agreement.

In the same book (White and Tudor, 9th Edn. Vol. 1, p. 185) the law on the subject has been thus enunciated:

The compromise of doubtful claims, whatever may be the actual rights of the parties has, from the policy of preventing litigation, been generally upheld in all enlightened systems of jurisprudence. ... In our law, it is clear that if a person, after due deliberation, enter into art agreement for the purpose of compromising a claim made bona fide to which he believed himself to be liable, and with the nature and extent of which he is fully acquainted, the compromise of such a claim is a sufficient consideration for the agreement, and a Court of Equity, without inquiring whether he was in truth liable to the claim, will compel a specific performance. . . . The real consideration and motive of a compromise, as well in our law as in the civil law and systems derived from it, is not the sacrifice of a right but the abandonment of a claim. In dealing with a compromise, always supposing to be a thing that is within the power of each party, if honestly done, all that a Court of Justice has to do is to ascertain that the claim or the representation on the one side is bona fide and truly made, and that on the other side the answer or defence or counter-claim is also bona fide and truly made.

In the case before us, whatever may be said about the claim put forward by the plaintiff on the basis of fraud in connexion with the probate proceedings and on the basis of the Mithila law, or in respect of the jewellery and gardens as being her personal properties, there is no doubt that the defendants, who had obtained a probate of the will of Ugrah Mohan Thakur, honestly believed that they were justified in resisting the claim of the plaintiff and that she was not entitled to get anything more than the Rs. 100 per month which was allowed to her under the will of her husband. Their agreeing to suffer a decree for past and future maintenance and for house rent and conveyance was good and sufficient consideration for the plaintiff to abandon the rest of her claims. In Miles v. New Zealand Alford Estate Co. (1886) 32 Ch D 266 it was held that a bona fide compromise of a real claim was good consideration whether the claim would have been successful or not Bowen, L.J., at p. 291 observed as follows:

It seems to me that if an intending litigant bona fide forbears a right to litigate a question of law or fact which is not vexatious or frivolous to litigate, he does give up something of value. It is a mistake to suppose it is not an advantage, which a suitor is capable of appreciating, to be able to litigate his claim, even if he turns out to be wrong. It seems to me it is equally a mistake to suppose that it is not sometimes a disadvantage to a man to have to defend an action even if in the end he succeeds in his defence; and 1 think therefore that the reality of the claim which is given up must be measured, not by the state of the law as it is ultimately discovered to be, but by the state of the knowledge of the person who at the time has to judge and make the concession. Otherwise you would have to try the whole cause to know if the man had a right to compromise it, and with regard to the questions of law it is obvious you could never safely compromise a question of law at all."

We have already shown that it is absolutely irrelevant in this connexion what rights the appellant actually had under the Mithila law, though for other reasons already indicated we have dealt with those rights. Our decision on that point cannot affect the position that in a compromise of bona fide claims, the real consideration received by each party is the abandonment of his claim by the other. In Knowles v. Roberts (1888) 38 Ch D 263 in an action to enforce the compromise of a former action brought in assertion of a right plaintiff was not allowed to set out in his statement of claim allegations as to his right and the corresponding liabilities of defendant which were contained in his former statement of claim. Such allegations were ordered to be struck out.

It should be borne in mind that the compromise before us is not a compromise between strangers but substantially between members of the same family, the widow of Ugrah Mohan Thakur on the one side and his nephew and residuary legatee on the other. About family settlements, "White and Tudor, Edn. 9, Vol. I, p. 198, basing upon the case of Stapilton v. Stapilton (1789) 1 Atk. 2 already referred to, says as follows:

From the case of Stapilton v. Stapilton (1789) 1 Atk. 2 down to the present day the current of authorities has been uniform, and wherever doubts and disputes have arisen with regard to the rights of different members of the same family . . . . and fair compromises have been entered into to preserve the harmony and affection, or to save the honour of the family, those arrangements have been sustained by this Court, albeit, perhaps, resting upon grounds which would not have been considered satisfactory if the transaction had occurred between mere strangers.

In Williams v. Williams (1867) 2 Ch A 294 it has been held that a family arrangement may be such as the Court will uphold, although there are no rights in dispute and if sufficient motive for the arrangement is proved, the Court will not consider the quantum of the consideration. This principle has been followed repeatedly in India. In the case of Helan Dasi v. Durga Das Mundal (1906) 4 CLJ 323, Mookerjee, J., held that if parties settle a dispute, such settlement would not be set aside on the ground that it gave to one of the parties more than what he might possibly have recovered if he had taken the judgment of the Court upon the matters then in difference between them. His Lordship followed the decisions in Williams v. Williams (1867) 2 Ch A 294 and Stapilton v. Stapilton (1789) 1 Atk. 2 referred to above.

No doubt, a family arrangement may be set aside as was laid down by Mookerjee, J., in the case of Satya Kumar v. Satya Kirpal (1909) 3 IC 247 on the ground of mistake in equality of position, or undue influence, coercion, fraud or any other similar ground, but that any such allegation must be clearly established. We have held that there is no such ground in this case. Assuming for a moment that the points of Mithila law propounded for the appellant were found to be correct, that would not be a ground for setting aside the compromise. Their Lordships of the Judicial Committee in the case of Rajunder Narain Rae v. Bijai Govind Sing (1839) 2 MIA 181 at p. 249 observed as follows:

The appellants are not entitled to avail themselves of all the light which subsequent investigation in the course of the suit has thrown upon their claims. If the nature or the extent of the rights of the respective parties could be considered as the fair subject of doubt at the date of the deed, and if, to avoid expense and delay by legal inquiry, they agreed to settle the contest by an amicable arrangement, such transaction is not to be disturbed on the ground of the inequality of benefit which either party may eventually have received from it.

There the heirs of the deceased had given up a moiety of a right which was doubtful at the time but become quite clear subsequently, and it was urged that the respondents should not be allowed to take advantage of it. In the case before us there was no mistake. The lady has deposed that she knew her position under the Mithila law; and if she compromised willingly as we have held she did, she is bound by it. In the case of Ram Nirunjun Singh v. Prayag Singh (1881) 8 cal 138 their Lordships quoted with approval Kerr on Fraud and observed:

Mistake in law is not a ground for setting aside a compromise, if the parties to the transaction were in difficulty and doubt, and wished to put an end to disputes and to terminate or avoid litigation. If one or more parties having, or supposing they have, claims upon a given subject-matter, or claims against each other, agree to compromise these claims, and the knowledge, or means of knowledge, of each of them with respect to the mode in which, and the circumstances under which, his claim arises, stand upon an equal footing, and there is absence of fraud or misrepresentation, the transaction is binding, although the conclusion at which the parties may have arrived is not that which a Court of Justice would have arrived at had its decision been sought. The real consideration which each party receives under a compromise being, not the sacrifice of the right, but the settlement of the dispute, and the abandonment of the claim. It is no objection to the validity of the transaction that the right was really in one of the parties only, and that the others has no right whatever. If, for instance, two parties claim adversely to each other the inheritance of a deceased person, and, in order to avoid litigation, agree to divide the inheritance, it is no ground for setting aside the agreement that only one was heir, and that the other gave up the right which he really possessed. The fact that the one may have had no claim is immaterial, if he was honestly mistaken as to his claim. It is enough if, at the time of the compromise, he may have believed he had a claim, and that the parties have, by the transaction, avoided the necessity of going to law. To render valid the compromise of a litigation, it is not even necessary that the question in dispute should really be doubtful, if the parties bona fide consider it to be so. It is enough to render a compromise valid, that there is a question to be decided between them. A compromise of doubtful rights will not be set aside on any other ground than fraud.

This is the rule of law regarding compromise generally. But that the Courts go still further in favour of upholding compromise by which family disputes are settled, appears from the following passage in the same treatise, p. 360:

The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromise in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend.

Here the compromise was not even of a doubtful claim but of something much weaker, of a novel claim based principally on a novel reading of imperfect editions of the Vivada Chintamani and the Dvaita Parisishta.

In our own Highs Court similar views have been taken in the case of Jagdam Sahay and Another Vs. Rupnarain Mahton and Others, where it was held that where there was a supposition of the right in both parties and the right is a doubtful one, an agreement of compromise entered into by the parties is binding on them irrespective of the fact whether in truth the properties in dispute belonged to one party or to the other, and in the case of Gajadhar Prasad and Others Vs. Lachhuman Lal Sahu and Others, in which it was held that if there was a bona fide claim made, although it might turn out in the end that there was not substance in it, an arrangement come to by all the members of the family to settle that claim was a valid agreement and binding upon all the parties concerned. The contention of the appellant assumes that the plaintiff would have necessarily been awarded maintenance at Rs. 1,000 per month from the date of her husband''s death, but this assumption is in our opinion entirely unjustified.

We have already discussed the financial position of the estate and have shown that it would have prevented any Court from allowing her maintenance at that rate from the death of her husband. For the first 14 or 15 years she would have got much less than this. Possibly the Court would have ordered a somewhat higher maintenance to take effect after the debt was discharged, but one cannot be sure of this. If under the circumstances the compromise was for maintenance at an uniform rate of Rupees 1,000 per month on the condition that the lady surrendered her claim to the estate, jewellery, gardens, etc., the compromise cannot be said to be without consideration, and cannot be ignored on that ground. This being our conclusion, we hold that the compromise was neither unjust to her nor an improvident act on her part.

The question therefore of exercising the inherent power of the Court, assuming that there is any such power in spite of the mandatory provisions of Order 23, Rule 3, Civil P.C., does not arise. If we have any such power, this is certainly not a case in which that power can reasonably be exercised. Reliance was placed on behalf of the appellant on the observations of their Lordships of the Judicial Committee in the case of Sourendranath Mitra v. Tarubala Dasi (15), a case already referred to when we were dealing with the applicability of a doctrine of a pardanashin lady to this case. Their Lordships referred to the case of Neale v. Gordon Lennox (14), and then observed, with respect to Order 23, Rule 3, Civil P.C., that:

The words of the rule do not in terms appear to confer a discretion on the Court, but their Lordships desire to say nothing to prejudge a contention that the Courts retain an inherent power not to allow their proceedings to be used to work a substantial injustice, such as emerged in the case of Neale v. Gordon Lennox (14).

The case of Neale v. Gordon Lennox (14), was one of a compromise entered into by counsel. Here the compromise was entered into by the lady herself, and as was pointed out by their Lordships in the case of Sourendranath Mitra v. Tarubala Dasi (15) cases here have to be decided according to the law prevailing in this country. Their Lordships observed:

Their Lordships approach the case, bearing in mind that the questions in issue have to be determined in accordance with the law in India, and that it by no means follows that implications of authority, which are readily inferred in other countries, ought to be established in the conditions which prevail in India.

Under our law should a grossly unfair compromise come before a Court, as for example where a helpless person, such as an inexperienced pardanashin lady, has been induced to agree to an unconscionable bargain, such a compromise would be ignored or relieved against without relying upon the principle laid down in Neale v. Gordon Lennox (14). For the Court will be entitled in the circumstances to presume that such a compromise could not have been entered into by the helpless person except under the influence of fraud or coercion, etc., or that it could not have been intelligently entered into; in other words, that the act of physical execution was not accompanied by the necessary mental act. For these reasons we are of opinion that the compromise cannot be interfered with on the ground urged, viz., that the terms are unjust to the appellant and that it was improvident on her part to accept them.

We now come to the various legal objections raised on behalf of the appellant against the lawful character of the compromise and against its being recorded. These are: (1) That the com promise cannot be recorded as no decree can be passed on its basis u/s 42, Specific Relief Act. (2) That a compromise not specifically enforceable cannot be recorded and that the compromise in question is not so enforceable. (3) That the contract to compromise stands rescinded on account of the defendants not having performed their part of the obligations arising under it. (4) That all the defendants not having joined in the compromise, it is unfit to be recorded. (5) That the compromise is unlawful, as it involves a transfer to the defendant of the shebaitship right of the lady and such a transfer is void under the Hindu law. (6) That some of the terms of the compromise and the identity of the parties to it are vague and uncertainable, and as the vague and uncertain part cannot be separated from the rest of the compromise, the whole of it is void. (7) That the compromise is unlawful, as Mr. Savi being an execution had no power to compromise the suit and create a charge on the estate without the permission of the Probate Court.

Three grounds have also been urged as barring proceedings for the recording of the compromise. They are: (1) That the inquiry is barred by the principle of res judicata. (2) That the petition of compromise required registration and, not being so registered, cannot be used in evidence and acted upon and that it bars oral evidence. (3) That the defendants waived their right to have the compromise recorded.

The contention of the appellant in this respect may be summarized thus: The compromise provides for a maintenance of Rs. 1,000 per month payable in future, which is to be a charge on the estate, provision for a house and a conveyance and a decree for arrears of maintenance which is also to be a charge on the estate.

Now it is contended that under the terms of the compromise no decree capable of execution can be passed for future maintenance, house and conveyance as the compromise only declares that the plaintiff''s right to get these things from the defendant, and these obligations, it is said, can only be enforced by suit especially as the maintenance has been declared a charge on the estate and such a charge cannot be enforced in execution proceedings. In respect of the arrears of maintenance the compromise provides for an executable decree, but it is urged that as the compromise provides their being charged upon the estate, this also cannot be enforced in execution of the decree, but will require a separate suit. This being the case and the plaintiff being entitled to other reliefs than a mere declaration, Section 42, Specific Relief Act, it is urged, bars the passing of any decree. It is further contended that the plaintiff''s abandoning her other reliefs amounts to her not suing for them at all and thus Section 42 of the Act, comes into operation, and no compromise can be recorded unless the Court is in a position to pass decree in accordance with it, while the only decree which the Court can pass in this case being a declaratory one is barred by Section 42, Specific Relief Act. Reliance has been placed upon the case of Aubhoyessury Dabee v. Gouri Sunhar Panday (1895) 22 Cal 859 and Matangini Dassee v. Chooneymoney Dassee (1895) 22 Cal 903.

The first of these cases laid down that where a consent decree ordered the payment of the decretal amount by instalments and properties mentioned in the schedule of the decree stood charged for the payment of the instalments, the properties could not be sold in execution of the decree, but that a separate suit was necessary u/s 67, T.P. Act. The second case laid down that where a decree declared the amount payable to the plaintiff in respect of future maintenance and made it a charge upon the estate of the testator, such a charge was properly enforceable by suit and could not be given effect to in execution. Reliance has also been placed upon the case of Gobinda Chandra Pal v. Dwarka Nath Pal (1908) 35 Cal 837 where a suit was brought on the basis of a compromise decree which created a charge upon immovable property. The suit was decreed, and the High Court on appeal upheld the decree, this implies that the initial compromise decree could not be enforced in execution.

Further reliance is placed upon the case of Sarada Prosad Roy Chowdhury and Others Vs. Rai Mohan Saha and Others, for the proposition that when a plaintiff abandons the other reliefs claimed in the suit, or does not offer evidence in support of them, this amounts to his not suing for such other reliefs at all.

The considerations which arise on the contentions for the appellant on this branch of the case are these: (1) Whether the decree, which can be passed on the basis of the compromise in question, can only be a declaratory decree and thus not enforceable in the execution, department. (2) Does the compromise amount to the plaintiff abandoning her other reliefs and does the passing of a purely declaratory decree so far as the future maintenance is concerned offend against the provision of Section 42, Specific Relief Act?

It may at once be conceded that after the passing of the Specific Relief Act, Section 42 of that Act, is the only law which authorizes a Court to pass a declaratory decree, and we need not refer to the cases cited by the appellant to show that where a plaintiff, being entitled to other reliefs, does not seek them, he is not entitled to a pure declaration. The Court will not merely make a declaration of a hypothetical or an abstract right without any reference to its practical utility. Now as to the first consideration set out above, there is not the least doubt in our minds that in this case a fully effective executable decree can be passed, as has in fact been done by the learned Subordinate Judge.

So far as the arrears of maintenance are concerned, the compromise itself expressly provides for the passing of an executable decree. The objection about the decree not being executable on the ground that it created a charge on the estate is untenable. The two cases from 22 Calcutta relied upon by the appellant were decided before the passing of the CPC of 1908. Since then Section 99, T.P. Act, which required the institution of a separate suit to enforce a charge has been transferred with Some modification to Order 34, Civil P.C., and as a result a decree creating a charge is now clearly executable. The change in law was pointed out in Calcutta in the case of Tarak Nath Adhikari v. Bhubaneshwar Mitra (1914) 42 Cal 780 and in this Court in Brajasundari Debi v. Sarat Kumari (1916) 2 Pat LJ 55 a case arising out of proceedings in execution of a decree which awarded maintenance and charged it on an estate. Sharfuddin and Chapman, JJ., held that if a charge is created by the decree itself, no fresh suit is necessary for enforcing it and that it can be enforced by putting the decree into execution. Apart from this the case in Matangini v. Chooneymoney Dassee (1895) 22 Cal 903 was based upon the consideration that there was a deed creating the charge as directed by the first decree, and that deed was the basis of the second suit. That such a decree can be enforced in execution has been clearly explained by Sir Dinshaw Mulla in his commentary on the Civil Procedure Code, Edn. 9, p. 938, under Order 34, Rule 14, where the learned commentator has indicated that in order to come within the prohibition of that rule the mortgage or charge for which a suit is necessary should be prior to the decree.

The plain meaning of Order 34, Rule 14 and authority alike leave no doubt that so far as the decree for the past maintenance is concerned, it can be executed and that no separate suit will be necessary for enforcing the charge. As regards the future maintenance and the provision for house and conveyance, the compromise does not expressly say that the liability of the defendant in these respects can be enforced in the execution department, but there is nothing to prevent the Court from passing an executable decree for them as well. A "decree" has been defined in the CPC as:

the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of parties with regard to all or any or the matters in controversy in suit.

Now this determination may be arrived in one of two ways: either after contest by the Court coming to its own conclusion on the materials placed before it, or on the parties themselves agreeing to settle their difference on certain lines and asking the Court to adjudicate their respective rights and liabilities in accordance with that settlement. In both cases the Court has to pass orders. In one case the order is based on the decision of the Court itself, and in the other the Court, after being informed of the agreement of the parties, makes a formal adjudication on the basis of the agreement. In both cases the Court will generally order the parties to carry out their respective obligations. An adjudication may, in some cases, be purely declaratory; this will happen if a declaration be sufficient to give the party having a right all the relief he is in need of. If, on the other hand, a declaration is not enough, the Court will order the party, who has infringed the right of another, to restore that right to the rightful party as found by the Court, or as admitted by the other party. What the parties do in a compromise of a suit is to adjust their rights and liabilities outside the Court, and then come and ask the Court to recognize those rights and liabilities and pass its formal expression of adjudication accordingly.

This is what is provided in Order 23, Rule 3. The Court is required to record the compromise, which thus really takes the place of a judgment in a contested suit. In the present case the defendants have by the compromise accepted a liability to pay maintenance at a certain rate and to provide a house and a conveyance. The actual words of the compromise are:

Defendants 1 and 2 agree to pay and will pay to the plaintiff till her death Rs. 1,000 per month for her maintenance from the beginning of November, etc., etc. The said maintenance will be a charge on the estate of Babu Ugrah Mohan Thakur aforesaid.

Similar is the term about the house and the conveyance, except that there is no mention of a charge. Here is an admission of liabilities and a promise of the defendants to discharge them, and the parties have asked the Court to pass a decree on the basis of them. The plaintiff in her suit asked the Court, in case her claim to the estate failed, to adjudicate the amount of maintenance and to order the defendant to pay it. The plaintiff and defendants have agreed that the amount shall be Rs. 1,000 per month. It cannot be seriously maintained and nothing has bean urged before us to show, that had the case been decided on contest and had the Court fixed the amount of maintenance payable to the plaintiff, the Court would not have been competent to order the defendants to pay the amount, or that such an order would not have been enforceable. What difference can it make if instead of the Court determining the amount of maintenance to be paid to the plaintiff, the amount is settled by the parties themselves? We are therefore of opinion that on this compromise the Court below was not incompetent to pass an executable decree.

No doubt a practice has grown up according to which when a suit is compromised, a formal decree is not drawn up specifying the orders of the Court, but the decree drawn up says that the suit is decreed or dismissed (as the case may be) in the terms of the compromise and the petition of compromise is attached to the decree as an annexure. Nevertheless as soon as the petition of compromise is adopted as a part of the decree it passes from the domain of mere contracts into that of decrees and the promise of a party to pay is converted into an order of the Court to that party to pay. We may here refer to Seton on "Judgment and Orders," Vol. 1, p. 124, where the learned author gives the form of a judgment on consent, thus:

And the plaintiff and the defendant by their counsel (or solicitors) consenting to this judgment (or order) this Court doth order....

Seton further notes:

that a compromise ought not to be introduced into the body of the order, but either identified or scheduled. It is however common practice to insert undertakings in the body of the order and in the event of breach the undertaking may be enforced by writ of attachment, whereas if it forms part of the agreement set forth in the schedule, proceedings in the nature of specific performance might be necessary.

This, of course, is the practice in England. In India it has been held that a compromise attached to a formal decree has the same effect as if it were embodied in the decree itself. Order 23, Rule 3 imperatively lays down that the Court after recording the compromise shall pass a decree in accordance therewith, and though the decree actually drawn up in this case is not strictly formal, the compromise petition having been simply attached to the decree, we propose while dealing with the connected Civil Revision No. 483 of 1932 to order a fresh and formal decree to be drawn up as required by law and as indicated by Seton.

That an executable decree can be passed for future maintenance, that is a decree entitling the decree-holder to realize such maintenance in execution proceedings admits of no doubt. Such a decree was held to be executable by a Full Bench of the Calcutta High Court in the case of Ashutosh Banerjee v. Lukhimoni Debya (1891) 19 Cal 139 (FB), and was as a matter of fact passed by their Lordships of the Privy Council in Ekradeshwar Singh v. Janeshwari Bahuasin (20a) though the precise question now raised by the appellant was not directly decided there. Assuming for a moment that such a decree cannot be passed under the law on the ground that the cause of action for future maintenance has not yet arisen, as the learned Judges who referred the case to the Full Bench in 19 Calcutta were inclined to hold, the plaintiff can again have no grievance whatsoever: for on such an assumption the only decree possible would be a declaratory one and Section 42, Specific Relief Act could thus have no application. It was however contended that though such a decree can be passed under the law, it cannot be passed in the present case, as it has not been provided for in the compromise and it will be going beyond the terms of the compromise to pass an executable decree.

We however do not think so. In our opinion, as we have already indicated an order passed under Order 23, Rule 3 to a party to perform an obligation, which he has himself undertaken, is not an interference with the compromise. The parties have asked the Court to pass a decree according to the terms of the compromise, and in doing so the Court has to add its command to the undertakings of the parties.

Assuming however that the Court is precluded from passing an executable decree for future maintenance under the terms of the compromise, even then Section 42, Specific Relief Act, will not bar the passing of such a decree. The plaintiff in fact did sue for all the reliefs to which she was entitled to at the time. Therefore in our opinion, the requirements of Section 42, Specific Relief Act, have been fully complied with.

The Calcutta case of Sarada Prosad Roy Chowdhury and Others Vs. Rai Mohan Saha and Others, , which has been cited for the appellant, must be treated as a decision on its own special facts. We agree that Section 42, Specific Relief Act, is intended to avoid a multiplicity of suits. The legislature wants that all the possible reliefs which a plaintiff is entitled to get must, except as otherwise provided, be included in one suit, but we see nothing in the law to prevent a plaintiff after he has brought a suit for all the reliefs to content himself with a pure declaration if that be all that is necessary in the circumstances. Unlike the Calcutta case, we have here a case of a compromise, and Order 23, Rule 3 makes no distinction on the score of the nature of decree to be passed in the suit. Apart from this, in our opinion the plaintiff need not have sued for any relief, except a declaration, so far as the future maintenance is concerned.

Future maintenance had not fallen due, and the plaintiff had no cause of action in respect of it. Though it has been held that an executable decree for future maintenance can be passed, it has nowhere been laid down that a plaintiff must sue for such a decree. If a plaintiff chooses to seek a declaration only for future maintenance for which the cause of action has not accrued, Section 42, Specific Relief Act, cannot stand in his way where the words "able to seek further relief" mean "able to seek" it on the date of the suit: see Govinda v. Perumdevi (1888) 12 Mad 136. It is obvious that the plaintiff cannot be said to have been able to seek the relief of realization of the future maintenance, which had not fallen due till the date of the institution of the suit. Therefore the plaintiff if she had so chosen could have sought a declaration of right regarding her future maintenance and for fixing its amount, without asking for an executable decree for it. We have however shown that an executable decree for future maintenance can be passed on the basis of the compromise before us, and in our opinion the learned Subordinate Judge was right in passing such a decree, and we propose, in disposing of the revisional application, to see that the decree is made clear and formal.

The contention on behalf of the appellant has been that the defendant''s application to record the compromise was on the same footing as if it were a suit for specific performance of a contract, that a proceeding under Order 23, Rule 3 is a speedy remedy alternative to such a suit, that the terms of the compromise, at any rate several of them, are not specifically enforceable and two of them not enforceable at all, and that therefore the compromise cannot be recorded as an order for recording a compromise means the passing of a decree, which in effect would be a decree for the specific performance of a contract. It is urged that the obligation of the defendant to provide a house and a conveyance for the plaintiff cannot be specifically enforced. The payment of the future maintenance on the due date (the first of each month) cannot also be specifically enforced nor the payment of the past maintenance. There are however two terms which cannot be enforced at all, namely, the one contained in para. 6 of the petition that the defendant will be obedient to the plaintiff and look after her, and the provision in para 3 that the interest on the arrears of maintenance will be spent by the plaintiff in consultation with Suraj Mohan on a scholarship fund and religious work.

There must be mutuality in specific performance and as the plaintiff could not have secured specific performance of these terms from the defendants, the defendants on their part cannot claim from the plaintiff specific performance of her part of the contract, namely, that she should get her other claims dismissed.

Now it may at once be conceded that the provision in Order 23, Rule 3 for an inquiry about the fact and lawfulness of a compromise of a suit in the suit itself is a speedier alternative to a separate suit for specific performance of the contract to compromise the suit on certain terms. It has been laid down in Halsbury''s Laws of England, Vol. XVI, Article 1096, p. 540, with reference to a compromise in a suit between husband and wife that, "the Court will recognize a settlement of difference, and an agreement of compromise entered into is valid and may be made an order of the Court or may be enforced in the Chancery Division."

Sanderson, C.J., in the case of Sourendra Nath Mitter and Others Vs. Sm. Tarubala Dassi, , while dealing with the application for leave to appeal to the Privy Council against the judgment of the Calcutta High Court, observed as follows:

An application to record an adjustment under Order 23, Rule 3, is in some way a very special matter, because it is a matter as to which a party is allowed to stand upon and to enforce an agreement which was not in existence at the date of the suit. It is a method whereby for convenience a party is allowed to enforce what is really a new cause of action altogether and this is done in order to avoid the necessity of abandoning one suit and starting another,

Lord Halsbury in the case of Neale v. Gordon Lennox (14) at p. 469 already referred to above, observed:

The Court is asked for its assistance, and I entirely repudiate the technical distinction between what is called an application for specific performance and an order to be made that such and such thing should be done. The Court is asked for its assistance when this order is asked to be made to enforce that the trial of the cause should not go on.

As a matter of fact, prior to the passing of the CPC of 1908 and when the corresponding section of the old Civil Procedure Code, viz., Section 375 was in force, it was held in a Calcutta case that when a compromise was disputed the question could not be inquired into in the suit itself, and that the remedy of the party, who wanted to stand by it was to sue the repudiating party for specific performance of the contract: see Hara Sundari Debi v. Dukhinessur (1885) 11 Cal 250 but this view was overruled by the Full Bench in Brojodarlabh Sinha v. Ramanath Ghosh (1897) 24 Cal 908. In the case of Ruttonsey Lalji v. Pooribai (1883) 7 Bom 304, Scott, J., holding that a disputed compromise could be inquired into the suit itself, observed:

I think the legislature introduced this rule to meet the case where parties having agreed together, subsequently fell out. It was devised as an alternative and more expeditious course than a separate suit for specific performance, which remedy still remains open to the parties.

This observation of Scott, J., was quoted with approval in the case of Kuruppan v. Ramasami (1835) 8 Mad 482 and Appasami v. Manikam (1885) 9 Mad 103. The fallacy however in the contention of the appellant is that it confuses a suit for the specific performance of the contract to compromise the suit in a particular way with a suit for the specific performance of the obligations mutually agreed to be performed after the disposal of the suit on such compromise, An example will make this clear. Suppose A institutes a suit against B for recovery of Rs. 1,000 on the basis of a loan, besides Rs. 500 as interest on that loan, the total claim being for Rs. 1,500. In the course of the suit A and B arrive at a compromise that A will accept Rs. 1,000 in full satisfaction of his claim and that this Rs. 1,000 will be payable three years after the date of the decree.

After having agreed to this term, A backs out of the agreement. Supposing the speedier remedy provided under Order 23, Rule 3 were not available, B could have recourse to a suit against A for specific performance of the contract to compromise the suit on the terms agreed to, and if successful, he will get a decree compelling A to have the suit decreed on the terms agreed to by him though A would have no obligation to discharge after the decree in the first suit, but on the contrary B would be under an obligation to pay Rs. 1,000 to A after three years. No other remedy of specific performance would be either necessary or available to B.

Suppose, on the other hand, that A stands by the compromise and B backs out of it, the suit which A, if he so likes, will institute against B for the specific performance of contract on the basis of the compromise will be that B be compelled to submit to a decree for Rs. 1,000 payable after three years, and not for the payment of Rs. 1,000 which has not according to the terms of the compromise fallen due up till then, being payable three years after the date of the decree. Therefore in our opinion the analogy between an inquiry under Order 23, Rule 3 and a suit for specific performance of contract does not get over the distinction between specific performance of the contract to compromise a pending Suit and specific performance of the undertakings to be carried out by one party or the other after the decree in that suit.

Specific performance of the contract to compromise the suit itself merely means compelling the party who backs out of the compromise to have the pending suit disposed of by a decree on the terms already agreed upon by the parties, but it does not mean the performance of obligations arising under this decree. This will be the nature of the suit if such a suit be still maintainable in spite of the fact the law has provided a special procedure in the suit itself in order to avoid multiplicity of suits.

In this case the defendants have applied for the compromise to be recorded. They are in the position of a plaintiff, while the plaintiff is in the position of the defendant.

The prayer of the defendants would, if the proceeding were framed in the terms of a suit, be that the plaintiff be specifically compelled (in the proceeding itself) to have the original suit disposed of on the terms agreed upon by the parties, while the defendants are ready and willing to submit to the decree which he agreed to have passed against him. No doubt, in a suit for specific performance of contract, mutuality is essential, and the Court will not pass a decree for the specific performance of a contract unless the plaintiff could also be compelled to specifically perform his part of the obligation. But in the present case, regarded as a case of specific performance, the obligation which the defendant undertook was to have a decree for past and future maintenance and for providing a house and conveyance passed against him in consideration of the plaintiff having her other claims in the suit dismissed.

The Court, if there had been a suit for specific performance of the contract of compromise, would have been fully competent at the instance of either party to compel the other to have the original suit disposed of on the terms agreed to.

Now what Order 23, Rule 3 requires is that the agreement or adjustment should be lawful. Lawful, in our opinion, means lawful within the meaning of the Contract Act; that is to say, the rule requires an agreement which is legally enforceable, but not necessarily one that is specifically enforceable. We are unable to accept the contention of the appellant that in order to enable the Court to record a compromise the terms, which are to be complied with after the decree, should be specifically enforceable under the Specific Relief Act.

To hold this will mean the exclusion of a large number of cases from the purview of Order 23, Rule 3. For instance, suits for realization of money will not be compromisable, and parties will be precluded from settling their disputes about monetary liabilities by fixing amounts to be payable by one to another or by fixing instalments. All such suits will go outside this section, because obligations for payment of money though certainly enforceable are not specifically enforceable in the sense that a specific sum of money cannot be made payable like, say, a specific book, picture or article of furniture. If the terms settled by the parties be enforceable under the law, we do not see why the compromise should be held to be other than perfectly lawful. There is no reason, and we have no power, to import into Order 23, Rule 3 restrictions which are not to be found there. If one of the parties agreed in a pending suit to do after the decree things which are not specifically enforceable, the Court will even then, in our opinion, have to record the compromise--provided there is nothing unlawful in it--and to pass a decree.

It is not the business of the Court to speculate on the difficulties that may arise at the time of execution. It will be for the executing Court to, devise means and give suitable remedies in case the compromise decree is disobeyed. The CPC contemplates the passing of a decree for specific performance of a contract which cannot be specifically enforced. Such a decree may not be passed on contest, but in our opinion can be passed with consent; and if the compromise be lawful, we do not see how the Court can refuse to record it and pass in accordance with it a decree which may contain terms that are not specifically enforceable.

The difficulty of the execution in such cases has been provided for in the Code of Civil Procedure. Order 21, Rule 32, provides that where a party against whom a decree for specific performance of contract .... has been passed has had an opportunity of obeying the decree and has willingly failed to obey it, the decree may be enforced .... by his detention in the civil prison or by the attachment of his property or by both.

Let us give an example. Supposing A has brought a suit against B, claiming damages of Rs. 5,000 on account of B''s failure to deliver 5,000 maunds of wheat of a certain quality as contracted by him. The parties compromise the suit; the claim of damages is given up, and B agrees to have a decree passed to the effect that he would deliver to A 5,000 maunds of wheat of a particular quality within six months at a certain rate. There is nothing in Order 23, Rule 3 to prevent a decree being passed on this compromise, though it is obvious that the undertaking to deliver wheat of a particular kind is not specifically enforceable and though had A''s suit been for specific performance of the contract to deliver wheat, the Court would have refused specific performance.

Let us take another example of two counter-suits. B enters into an agreement with A to repair a painting of A for a consideration of Rs. 1,000 and receives an advance of Rs. 200. This is a perfectly lawful agreement enforceable under the law. B does the work, but A is not satisfied and feeling that the painting has been spoiled, refuses to give B the balance of Rs. 800. Two suits are instituted: one by A against B for the damage alleged to have been caused to the painting and the other by B against A for recovery of Rs. 800. The parties compromise on the terms that A is to give up his claim for damages on B''s undertaking to repair the painting to the satisfaction of an artist, and that he is to consent to a decree in B''s suit. In pursuance of this compromise A lets a decree for Rs. 800 passed against himself. Thereafter B backs out of the compromise.

Supposing that the special remedy provided under Order 23, Rule 3 were not available, what would be the remedy of A? Can he not sue B for specific performance of the contract in order to compel him to consent to a decree in A''s suit on the terms agreed to by B?

We are of opinion that he can, and the Court would compel B to specifically perform his part of the contract by consenting to or suffering a decree in A''s suit to the effect that B will repair the painting to the satisfaction of the artist. Similarly, if A applies in his suit under Order 23, Rule 3 under the mandatory provision of that section, the compromise will have to be recorded provided, of course, that the Court is satisfied about the factum of the compromise. The obvious difference between a decree on contest and one by consent is that while in the one the Court is debarred from passing a decree for specific performance of a contract which requires the personal skill of the defendant, such a decree must be passed if that be the way the parties agree to compromise the suit.

On passing an order of recording a compromise under Order 23, Rule 3 the Court is to pass a decree not for the specific performance of the original contract--the contract to repair the painting--nor of the future undertaking to repair to the satisfaction of X, but for the specific performance of the new contract to have the suit disposed of in a particular manner--a contract which did not exist at the time of institution of the suit as was pointed out by Sanderson, C.J., in Tarubala''s case (72). And this decree in the suit itself follows as a matter of course.

The analogy between a suit for specific performance of contract and a proceeding under Order 23, Rule 3 should not be carried too far. There is one obvious difference between them; while the Specific Relief Act gives the Court discretion to refuse specific performance of a contract and has specified cases in which specific performance of a contract cannot be granted, no such exception has been made in Order 23, Rule 3, Civil P.C., under which it is obligatory upon the Court to record a compromise if the Court is satisfied that the parties have settled their disputes by a lawful compromise. In the one case the matter is left to the discretion of the Court, but in the other no such discretion has been left to the Court, as was pointed out by their Lordships of the Privy Council in Sourendranath Mitra v. Tarubala Dasi (15),

That there is this difference between granting a decree for specific performance of a contract and recording a compromise was pointed out by Telang, J., in the case of Goculdas Bullabdas Manufg. Co. Ltd. v. James Scott (1891) 16 Bom 202 and we respectfully agree in the views expressed by that distinguished Judge. It will be observed that while the judgment was taken to be one by Telang, J., only, his colleague Farran, J., also agreed in those views. A question was raised in that case whether a compromise can be recorded under the provision of Section 375 of the old Civil P.C., if one party repudiated it. The Calcutta High Court had already held in Hara Sundari Debi v. Dukhinessur (73) a case already referred to, that the inquiry could not be conducted in the suit and that a separate suit was necessary. The Madras High Court had taken another view, namely, that such an inquiry could be held even u/s 375, old Civil P.C. The Calcutta Pull Bench decision in Brojdarlabh Sinha v. Ramanath Ghosh (74) was not pronounced till then.

It was contended before Telang and Farran, JJ., that while the power of the Court to grant specific relief was discretionary, the provision of Section 375 was mandatory, and that the legislature could not have contemplated an inquiry as to the fact of compromise and its lawfulness in a summary inquiry in the suit itself. Telang, J., observed:

The other point raised is that whereas if a suit was brought for the specific performance of such an agreement as is referred to in Section 375 i.e. the agreement to compromise the suit, the Court might have a discretion to refuse the specific performance, the Court would have no such discretion in the summary proceedings u/s 375. This again is, doubtless, correct, but it is difficult to see precisely what effect it should have on the construction of the section. Supposing the section is construed in the limited sense which Mr. Jardine contends for, (namely, that a compromise can only be recorded if both parties agree to its being so done), the same argument will still be not without force. For, in the case of an agreement which the parties are still willing to carry out at the time when the application is made to the Court a decree according to that agreement may be a decree for the specific performance of an agreement, which, under the general principles of the Code and the law embodied in the Specific Belief Act, is not enforceable by that mode of relief. The argument under consideration therefore applies, whichever of the two rival constructions is adopted, and cannot be treated as affording any special objection against either. Further, the tendency of the decisions in England and of the changes introduced under the Judicature Act seems as Scott, J., pointed out, to be unfavourable to this agreement." (The portions within brackets are ours.)

He then referred to the case of Eden v. Naish (1878) 7 Ch D 781 and after quoting the remarks of Sir C. Hall, V.C., proceeded:

It is true, that the English cases arose under a system, which allows the Court a discretion to refer the parties to a regular suit; and for that and other reasons they are not strictly speaking authorities u/s 375, if that section is construed as being absolutely imperative. Still assuming the section to be imperative, the tendency of English legal opinion is not altogether without weight here. For the Indian legislature would appear to have gone a step or two further in the same direction for the purpose of avoiding multiplicity of judicial proceedings in this matter . . . There is doubtless some force in the argument adduced by the High Court of Calcutta [referring to Hara Sundari Debi v. Dukhinessur (73)] about the discretion which the Court had in a suit for specific performance not being admissible u/s 375.

He then discussed various arguments which could be advanced as to the difference in treatment between the specific performance of the agreement to compromise a suit when dealt with in the suit itself and a suit for specific performance of the contract, and referred to the case of The Hero (1891) P 294 and then proceeded:

These remarks seem to be very applicable in the present case specially when it is remembered that the Specific Relief Act and the CPC were under consideration of the legislature almost about the same time. But however that may be, and it is not absolutely necessary to decide the point now, it is enough for the purposes of the present case to say that I am not prepared to hold that the agreement under consideration ought to leave the Courts to put a different interpretation on the words of Section 375 than that which has been above indicated.

This was the view about the mandatory nature of the provisions of Section 375 of the old Code taken by the Full Bench of the Calcutta High Court and of the Bombay and the Madras High Courts, it being unanimously held that the provisions of Section 375 were mandatory and that no question of discretion in granting a decree for specific performance of contract arises when the decree is to be passed on consent. Now Order 23, Rule 3 has been made very clear by amending the section previously in force, and is mandatory as was pointed out by their Lordships of the Privy Council. The specific performance of the agreement to end the suit by a decree in accordance with a compromise is obviously different from specific performance of agreed acts to be performed after such decree which the Court may or may not be in a position to supervise or enforce, but this does not prevent the passing of a decree according to the compromise. If after a compromise decree is passed, the consenting party disobeys the decree, the decree-holder has his remedy in Order 21, Rule 32 and, if in spite of his imprisonment in the civil prison or attachment of his property or both, the judgment-debtor still continues to disobey, the Court may order his property to be sold and award to the decree-holder such compensation as it thinks fit and shall pay the balance to the judgment-debtor on his application.

For breach of a contract not specifically enforceable the aggrieved party is entitled not to specific performance but to damages. Similarly, the CPC provides a remedy in case a decree for specific performance of a contract is passed, but cannot be specifically enforced; damages may be in such a case be granted to the aggrieved party even after the decree has been passed.

Reliance has been placed on behalf of the appellant upon the case of Blacket t v. Bates (1865) 1 Ch Ap 117. The facts there were that under the award of an arbitrator defendant was to execute to the plaintiff a lease of the right to use such part of a certain railway made by the plaintiff as lay upon the land of the defendant, the lease to be in the words set out in the award; and the defendant was to have the right of running carriages over the whole line on certain terms and of requiring the plaintiff to supply engine power, while the plaintiff was to have an engine on the railway and during the term to keep the whole railway in good repair. The lease did not provide for these privileges awarded to the defendant.

The plaintiff first applied to have the award set aside, but his application was refused. Then he filed his bill for specific performance of the award. This was granted by the trial Court, but was refused on appeal. Lord Cranworth, L.C., observed:

The rights of the parties in respect of specific performance are the same as if the award had been simply an agreement, between them. Had it been an agreement, would there have been a case for specific performance? I think not, and for this short and simple reason--that the Court does not grant specific performance unless it can give full relief to both parties. Here the plaintiff gets at once what he seeks--the lease; but the defendant cannot get what he is entitled to, for his right is not a right to something which can be performed at once, but a right to enforce the performance by the plaintiff of daily duties during the whole term of the lease. The Court has no means of enforcing the performance of these duties, all it can do is to punish the plaintiff by imprisonment or fine, if ho does not perform them.

This case has no bearing upon the one before us. First of all there was no mutuality of obligations in the award; while it imposed the execution of a lease upon the defendant, no such obligation was imposed upon the plaintiff. Secondly, an award stands upon a different footing from a compromise in a pending suit at any rate under our law. Even in England a compromise is specifically enforced. The Court will specifically enforce a private compromise of rights provided there is a valid contract between the parties. Under the Judicature Act, Sections 5 and 24 the Court will also enforce by staying proceedings a compromise for putting an end to litigation: (White & Tudor, Edn. 8, p. 253). As we have said, when a Court records a compromise it enforces not the terms agreed upon by the parties to be carried out in future, but only the agreement to have the suit disposed of. And thirdly, the plaintiff''s prayer in that suit was refused in exercise of a discretion which is left to the Court in a suit for specific performance of contract, while the recording of a compromise is mandatory under our Code, as we have already pointed out. Apart from this the obligation of the plaintiff in that case could not at all be specifically enforced, for obvious reasons This is not the case here.

In this case, excepting two terms namely about Suraj Mohan being obedient to the lady and to look after her and about the expenditure of interest on the arrears of maintenance on scholarships and religious works with the consultation of defendant 2, there is no other term in the compromise which cannot be lawfully enforced. The future maintenance can be definitely secured to her even by independent means apart from its being made a charge on the estate. No doubt, the punctuality of payment cannot be enforced, as no decree for payment of money can directly ensure that the defendant judgment-debtor be punctual, but any irregularity in the payment can always be remedied in suitable modes in the execution department and the plaintiff can be amply compensated if the payment of her future maintenance is delayed, or default is made in the payment of the instalments of the arrear maintenance or the interest on it.

The provision for a house and a conveyance can very easily be secured. If the defendant fails to provide a suitable house or a conveyance, the executing Court may have them found by a commissioner appointed by the Court at the cost of the defendant; or, as a last resort, it may allow the plaintiff to arrange for these things herself and make the defendant liable for the cost.

It is now necessary to refer to a decision which has been relied upon by the appellant to support the contention that a compromise can only be recorded if its terms are specifically enforceable This is the case of AIR 1927 204 (Privy Council) . The facts of the case were the respondent Ghanshiam had mortgaged two villages to the appellant Mehdi Ali Khan, and the latter instituted a suit to enforce his security. One Bharat Singh claiming to be an adopted son of Ghanshiam intervened in that suit.

His position as an adopted son of Ghanshiam was disputed by Mehdi Ali Khan. Bharat''s application was rejected, and he instituted a separate suit, impleading Mehdi Ali Khan, some other mortgagees of Ghanshiam and Ghanshiam himself. This suit was compromised, and this compromise was the subject-matter of dispute before the Privy Council. The compromise was to the effect that Ghanshiam would sell 15 biswas of land to Mehdi Ali Khan in full discharge of his dues and that Mehdi Ali Khan would bear the expenses of the sale and pay Rs. 5,000 to Ghanshiam for part payment to another mortgagee of his, one Gokul Chand, and that Ghanshiam would see that these 15 biswas are transferred to Mehdi Ali Khan free of Gokul Chand''s charge. Bharat agreed to release these 15 biswas from his claim and to witness the deed. It was also agreed that the sale deed would be written, signed by the parties and witnesses and registered by 11th November 1921, and an agreement would be drawn up and registered by the parties and partition lots would be drawn up by 31st December 1921.

Then there were certain terms to be embodied in the deed of sale. Lord Blanesburgh in delivering the judgment of their Lordships in that case observed as follows:

Before their Lordships the question mainly argued was that the compromise was not a complete and final settlement of the suit so far as the appellant was concerned: that its terms were not of a character of which specific performance could be granted, and, less strongly, that it was not, ab initio, binding upon the son, the respondent Kunwar Bharat. Their Lordships have been unable to accept any of these contentions. They arc in full accord with the learned Judges of this High Court as to the authority of Ghanshiam to bind Kunwar Bharat to compromise in respect of his interest in the property, and in their judgment the terms agreed to are such as to be susceptible in every detail to an effective order in the nature of specific performance against any party to the compromise who seeks to escape from his obligations thereunder.

This case is no authority for the proposition that a compromise cannot be recorded unless the terms are specifically enforceable. The effective order is spoken of as an order "in the nature of specific performance," and not an order of "specific performance." In fact a number of terms in that compromise were not specifically enforceable, such as the term about Bharat witnessing the deed, or releasing the claim, etc. or that things would be done, by a certain date In the case before us every material obligation which the defendant has undertaken can be enforced against him and every advantage gained by the plaintiff can be suitably secured to her.

We now proceed to consider the positions created by the compromise containing two provisions, which we hold to be unenforceable, namely, about Suraj Mohan being obedient and looking after the plaintiff and about the expenditure of the interest on the arrears of maintenance over scholarships and religious works with consultation with the defendant. It was also conceded by the respondents that none of these can be enforced. They are far too vague and general to be capable of enforcement in any manner. Regarding the first of these provisions, as we have already said, it was not an integral part of the contract but was merely put down to produce domestic happiness, and is severable from the rest of the contract. Leake on Contract (Edn. 6, p. 571) says that:

where a contract contains several promises, or a promise to do several matters, some of which are illegal, a promise which can be separated from the illegality may be valid. ''The general rule is that where you cannot sever the illegal from the legal part of an covenant, the contract is altogether void; but where you can sever them, whether the illegality be created by statute or by the Common law, you may reject the bad part and retain the good.'' So a bond may be good, though the condition is good in part and illegal in part.

This was the view taken by the Calcutta High Court in the case of Poonnoo Bibi v. Fyez Bukhsh (1875) 15 BLR App 5. The defendant, a Mahomedan husband, executed a kabinnamah in favour of his wife, by which he agreed among other things that he would maintain her and makeover to her whatever money he should earn; that he would never exercise any violence upon her, that he would not take away from home, that it should not be within his power to marry or make any nikah without her permission, that he would do nothing without her permission, etc. The plaintiff sued her husband to recover from him all his earnings amounting to Rs. 565. The trial Court decreed the suit. The lower appellate Court dismissed it.

On second appeal the High Court held that although some part of the agreement might be illegal as being contrary to public policy and therefore void, yet that part which was legal could be enforced. The Court treated the suit as one to enforce that part only of the contract which was legal. Couch, C.J., said that the section of the Contract Act applicable to the case was 57, The above considerations equally apply to the conditions about the expenditure of the interest of the arrears of maintenance on scholarships and religious works. The condition is to our mind a recommendation to the lady which she may or may not accept. Mr. P.R. Das, who appeared for the Savis and Mr. Ghose who appeared for defendant 2, expressly stated before us that the defendants do not want to enforce this.

Fry in his standard book on Specific Performance, Article 346, says that the uncertainty of description of the subject-matter may be got over by the election of one party to the contract where the effect of the contract is to give such a right of election. In this case there is an uncertainty about the object of the expenditure, namely, religious work (dharam) and there is also uncertainty as to the consequence of the lady not accepting the advice given by defendant 2. Defendant 2 now elects not to insist upon this condition. The condition was a restriction upon the free right of the plaintiff to spend the amount of interest in any way she liked. The condition was in favour of defendant 2, and he elects to abandon it. The rest of the contract is perfectly valid. Reliance has been placed by the appellant on the case of Sarbesh Chandra Basu v. Khetra Pal Singh (1910) 5 IC 236, where the question was the setting aside of a consent decree, a part of which was obviously illegal. Mookerjee, J., said:

It may be observed that there is authority for the proposition, Price v. Griffiths (1851) 1 De GM & G 80, that where an agreement to grant a lease of an entire property cannot be enforced as to the whole, it will not necessarily be enforced as to a share, because as Knight Bruce, L J., puts it, a lease of an undivided moiety may be a very different thing from a lease of the whole.

This case has no application to the present one, because the illegal severable part is in no way connected with the legal part of the contract. Here, as we have said, everyone of the terms entered into by the defendant in favour of the plaintiff is enforceable. The two unenforceable terms are not an integral, unseverable part of the compromise, and therefore the compromise is lawful, and under the, mandatory provisions of the law must be recorded.

It is contended that the proceeding being analogous to a suit for specific performance of a contract, the defendant is not entitled to have the compromise recorded as he himself failed to perform his part of the obligation, viz., that he did not continue paying the plaintiff her maintenance of Rs. 1,000 per month, that he failed to provide a suitable house at a place of pilgrimage, and a conveyance, and that he made defaults in payment of the instalments of the arrears of maintenance and the interest. It is further argued that, though the plaintiff was repudiating the compromise and opposing the defendant''s application to have it recorded, she was willing and ready without prejudice to her case to receive the future and past maintenance allowance and made several attempts to obtain payment. These attempts were resisted by the defendant who maintained that as long as the plaintiff was fighting the case, she was not entitled to get anything under the terms of the compromise. This attitude of the defendant, it is urged, amounts to his refusal to perform his part of the contract, and therefore the contract stands rescinded. In short, the argument is that in spite of the plaintiff''s repudiation of the compromise, the defendant, in order to be entitled to specific performance of the compromise, ought to have carried out what he had promised, or at least made an unconditional offer to do so. The offer, if any, was conditional on the plaintiff''s not opposing the recording of the compromise, and therefore does not save the defendant.

This argument again suffers from the same fallacy as the one which we have just dealt with on the last topic, in that it confuses the specific performance of the contract to compromise the suit with the specific performance of the terms of the compromise itself which were to be performed after the disposal of the suit and in accordance with the compromise decree to be passed in the suit. The contract between the plaintiff and the defendant was that on her part the plaintiff would abandon her suit in respect of the estate, gardens, jewellery, etc., viz., all claims except to the maintenance agreed upon, and that on his part the defendant in return for the plaintiff doing so would submit to a decree of the Court making him liable for past maintenance to be paid in certain instalments with interest, and for future maintenance at the rate of Rs. 1,000 per month, besides paying Rs. 17,000 in cash towards the past maintenance and providing a house and conveyance for her.

The promise of the defendant to suffer to a decree on certain terms was the consideration for the promise of the plaintiff to have the rest of her suit dismissed and vice versa. It is true that a party is not entitled to specific performance of a contract unless he shows that he has all along been and is ready and willing to perform his part of the contract. If the proceeding under Order 23, Rule 3, be regarded in the light of a suit by the defendant for specific performance of a contract, what the defendant seeks is that the plaintiff should be compelled to let her suit be dismissed in respect of other claims and that he is ready and willing to submit to a decree to be passed by the Court against him in terms of the compromise. It was not, in our opinion, at all necessary for the defendant to carry out the obligations that were to arise only after the passing of the compromise decree, when the plaintiff herself was resisting the passing of the decree. It is an admitted fact that after 7th April, the defendant did not perform the obligations which were to arise under the compromise decree. Unsuccessful attempts were made by the plaintiff to force the defendant to carry out those obligations, while she herself was repudiating the compromise. In our opinion, the defendant was entirely justified in resisting these attempts.

We have shown that at the time of the compromise the defendant paid to the plaintiff a sum of Rs. 17,000 out of Rs. 1,17,000 found due to her at the rate of Rs. 1,000 per month from the time of her husband''s death till the end of October 1924. He further paid another Rs. 3,000 towards the future maintenance of November, December, 1924, and January, 1925, for which the plaintiff granted him a receipt. After that, the defendant paid to the plaintiff a sum of Rs. 1,500 at Allahabad, which, according to her, consisted of Rs. 500 for her expenses and another Rs. 1,000 for the barkhi-sradh of her husband. We have however held that this story of the plaintiff is untrue and that the entire amount of Rs. 1,500 was paid to her towards her maintenance, as deposed to by Suraj Mohon. This shows that her maintenance up to the middle of March was paid well in time. We have also held that the defendant spent a sum of

Rs. 3,000 odd on the plaintiff''s account which must be set off against her maintenance allowance.

Therefore, on 7th April 1925, when the plaintiff filed her application u/s 151, to set aside the compromise decree, nothing was due to her on account of maintenance; in fact, her maintenance was overpaid and the instalments of the past maintenance as fixed by the compromise had not till then fallen due, nor had any interest become payable by that time. After the filing of the application u/s 151, the defendant stopped payment of the maintenance. The plaintiff made attempts to secure payment of the monthly maintenance agreed upon, while she was prosecuting an application u/s 151, Civil P.C., to avoid the very compromise under which she was to get the maintenance allowance. The defendant resisted this attempt and was successful. When the compromise decree passed on 26th November 1924 was set aside by this Court on 8th June 1926, and the defendant formally applied, on 16th August 1926, to have the compromise recorded, and the case became sub judice once more, the Court ordered the defendant to pay to the plaintiff allowance at the old rate of Rs. 150 together with another Rs. 50 as house rent, and this amount the plaintiff continued to get till the order appealed against was passed. Since then the defendant has been depositing Rs. 1,000 every month in Court, out of which Rs. 500 per month is being paid under provisional orders to the plaintiff as her maintenance.

Under a later order of this Court the plaintiff has also been getting Rs. 200 as house rent, and Rs. 100 for conveyance, for which separate deposits are being made by the defendant. Out of the moneys deposited, certain sums have been allowed to the plaintiff for the purpose of this litigation and for her husband''s sradh. Therefore as we have said, it cannot be disputed that after the 7th April, when the plaintiff filed her application u/s 151 repudiating the compromise, the defendant, though always ready and willing to submit to a decree and then carry out the terms of the decree, has not been carrying out the terms of the disputed decree which itself was set aside on 8th June 1926. The defendant has always maintained that so long as the plaintiff was attempting to have the compromise revoked, she was not entitled to get the benefits of the compromise. The point therefore is, has the defendant forfeited his right to have the compromise recorded? In our opinion, he has not.

As we have already said more than once, there is a distinction between the promise of the defendant to submit to a decree and the promise to carry out the terms of that decree when passed. The immediate consideration for the compromise between the plaintiff and the defendant was, as we have said, that the plaintiff agreed to abandon her suit in respect of all claims except that of maintenance and that in consideration of this the defendant consented to let a decree be passed against him in terms of the compromise. The defendant was always ready and willing to perform this promise, which was the consideration for the plaintiff''s promise. Section 38, Contract Act, which has been rolled upon by the appellant, is of no help to her, but is really in favour of the defendant. It says that:

where a promisor has made an offer of performance to the promisee find the offer has not been accepted, the promisor is not responsible for non-performance, nor does he thereby lose his rights under the contract. Every such offer must fulfil the following conditions: (1) it must be unconditional; (2) it must be made at a proper time and place....

In this case the promisor was the defendant. He promised to the plaintiff to submit to a decree, if, in her turn, she let her claims, other than that for maintenance, be dismissed. There was always an offer by the defendant to perform this promise, and his right under the contract subsists. The contract was completed on 25th November 1924. On the next date, ha paid the court-fees on behalf of the plaintiff (the plaintiff''s suit having been instituted in forma pauperis) in order to enable the Court to pass the decree against him. When, on the 7th April, the plaintiff applied to have the decree set aside the defendant resisted her attempt. When the plaintiff was unsuccessful in the Court below and came up to the High Court, the defendant resisted her appeal, and since the decree was set aside, he has all along been fighting to have a decree passed against him in terms of the compromise. Nothing more could be done by the defendant. Sir Sultan Ahmed further relied upon Section 39, Contract Act. This section says that:

when a party to a contract has refused to perform, or disabled himself from performing his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance.

Again, this section helps the defendant Regarding the part to be performed by the defendant, he was the promisor and the plaintiff the promisee. Sir Sultan Ahmed argued that on account of the defendant''s having refused to perform his part of the contract, the promisee plaintiff did put an end to the contract; but, as we have shown, there was no refusal on the part of the defendant to carry out his part of the promise, viz. to have a decree according to the compromise passed against him. The default is by the plaintiff in performing her part of the promise, and it is the defendant and not the plaintiff that is entitled to put an end to the contract. Section 54, Contract Act, is another section relied upon by the appellant. It runs:

When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed, till the other has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which such other party may sustain by the non-performance of the contract.

This section, in our opinion, is in favour of the defendant. There were reciprocal promises. Even if the promise to compromise be extended to the performance by the defendant of the obligations that could only arise out of a compromise decree to be passed against him, there was nothing until the decree was passed to require him to fulfil those obligations. The promise of the defendant to pay the maintenance of Rs. 1,000 etc., was dependent upon the dismissal of the plaintiff''s suit in respect of all her claims other than those for maintenance, etc., as provided in the compromise and on the passing of a decree for maintenance, etc., against him. The plaintiff being the promisee could not claim the performance of the obligations of the defendant till she performed her part of the contract by abandoning her other claims and obtaining a decree against the defendant. Therefore the promisor of the second part, viz., the plaintiff, having failed to perform her part, could not claim performance of the promise of the defendant. This section does not show that the contract would come to an end. The defaulting party certainly cannot insist upon the performance of the promise by the other party; but, nevertheless, the other party can enforce the contract against the defaulting party.

It is really unnecessary to refer to the cases relied upon by the appellant, as the law seems to us to be perfectly clear under the various sections of the Contract Act. Those cases lay down that when a party is in default, he cannot cue for specific performance of contract; but in this case, as we have shown above, there has been no default on the part of the defendant. He was all along not only ready and willing but anxious to submit to a decree: and, in fact, the essence of the whole of the present litigation is that while the defendant wants a decree against him in terms of the compromise, the plaintiff wants to repudiate the compromise. Apart from this, though it is not material for the purpose of this case, it is clear that up to 7th April, when the plaintiff filed her application repudiating the compromise, the defendant was not in default but discharged his obligations under the decree. We would however like to refer two cases relied upon by the plaintiff. One of them is Ardeshir H. Mama v. Flora Sassoon AIR 1923 PC 203.

There the defendant agreed to sell a certain house on Malabar Hill in Bombay to the plaintiff. The promise was not performed. The plaintiff sued for specific performance but later on abandoned his claim and pressed for damages only. The suit was dismissed. The plaintiff appealed to the Privy Council, and their Lordships held as follows:

Where the injured party sued at law for a breach, going, as in the present case, to the root of the contract, he thereby elected to treat the contract as at an end and himself as discharged from its obligations. No further performance by him was either contemplated or had to be tendered. In a suit for specific performance on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness, and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it inevitable dismissal of the suit.

What their Lordships have held is that there must be continuous willing ness and readiness on the plaintiff''s part, from the date of the contract to the time of the hearing, to perform his part of the contract. Here, as we have said the whole endeavour of the defendant has been to have a consent decree passed against himself. No better evidence of continuous readiness and willingness could be available. The next case relied upon by the appellant is Sabapathi Pillay v. Vanmahalinga Pillai AIR 1915 Mad 210. The facts of that case were rather complicated. It is enough to say that the litigation between the parties ended in a compromise under which there were various acts to be done by one party for the benefit of another. One of the acts was that the plaintiff would deposit Rs. 13,000 in Court, whereupon the defendant would get a release of certain properties in which the plaintiff was interested. On that release, again the plaintiff was to pay to the defendant a sum of Rs. 2,200. In other words, there was some act to be performed by the plaintiff, then some act to be performed by the defendant, and afterwards, there was a third act to be performed by the plaintiff viz. the payment of Rs. 2,200 to the defendant. The plaintiff failed to perform his first obligation, viz., to deposit Rs. 13,000 in Court.

Defendant therefore did not get the release of the plaintiff''s property; but he executed the decree for the realization of the Rs. 2,200 from the plaintiff. The High Court disallowed this execution and held that to enable the defendant to succeed there must be performance by him of his part of the contract. His offer to perform it, after the plaintiff deposited Rs. 13,000 was not an unconditional offer, and therefore it was held that the defendant could not realise the Rs. 2,200. It is obvious that this has absolutely no bearing on the present ease. In that case, the payment of Rs. 2,200 by the plaintiff to the defendant was to be made on the defendant getting a release of his property, though that release also was dependent upon payment of Rupees 13,000 by the plaintiff. There were three promises, and the performance of the third promise by the plaintiff to the defendant was dependent upon the performance of the second promise by the defendant to the plaintiff.

Here, there are only two sets of promises: one by the plaintiff to the defendant to let her suit for other claims dismissed, and the other by the defendant to the plaintiff to let a decree be passed against himself for maintenance, etc. Both of them are to be simultaneously performed, and if one refuses to perform his part as the plaintiff is doing in this case, the defendant can insist upon the plaintiff performing it, as long as ho is ready and willing to perform his own part simultaneously with the part to be performed by the plaintiff.

On the face of the clear section of the Contract Act, which we have referred to, it is not very essential to refer to the various cases, some of which have been referred to by the learned Subordinate Judge. However we would like to examine, in passing, Ram Sahai Singh v. Dhnnookdharree Singh (1864) 1 WR 265 where it was held that a promise entered into a former suit, no fraud being alleged, is not annulled by non-performance by one of the parties. The other parties may sue for its enforcement, but they cannot revert to their original rights. The ratio decidendi of this case apparently is that the consideration for a compromise is that each party gets the benefit of having the case disposed of in a particular manner. This being done, the original dispute comes to an end, and if any party fails to carry out his promise, the aggrieved party has his remedy under the compromise.

The next decision relied upon by the learned Subordinate Judge is also, in our opinion applicable to the case, viz., Bishnu Coomar v. Maharaj Joy Hurish Chunder Dev (1864) 2 WR 209, in which it was decided that a compromise must be treated as a new and positive contract, and a breach of its stipulations may be a ground for a suit for its enforcement but not for the revival of the original claim. It is obvious therefore that the plaintiff cannot go back to her original rights, and if there had been any default on the part of the defendant, as we hold there was not, the plaintiff had her remedy by executing the decree which she had obtained; and as we have said, the defendant was entirely justified in not carrying out the terms of the decree as long as the decree itself was disputed by the plaintiff.

In Jones v. Barkley (1781) 2 Doug 684, it was held that when something was to be performed by each of the parties at the same time, he who was ready and offered to perform his part but was discharged by the other may maintain an action against the other for not performing his part. Lord Mansfield said that the party must show that he was ready, but if the other stopped him on the ground of an intention not to perform his part, it was not necessary for the first party to go further and do a nugatory act. In In re Bayley Worthington & Cohen''s Contract (1909) 1 Ch 648, Parker, J., said:

Default must I think, involve either not doing what you ought or doing what you ought not, having regard to your relations with the other parties concerned in the transaction; in other words, it involves the breach of some duty you owe to another or others. It refers to personal conduct and is not the same thing as breach of contract. If A contracts that B shall do something by a certain day, and B does not do it by the day named, A commits a breach of contract; but if the question arises whether the delay be due to A''s default, A''s personal conduct has to be considered, and the question will be whether he has committed some breach of his duty towards B.

Later on the learned Judge observed:

In my opinion the repudiation of the contract by the purchaser relieved the vendors during such time as the purchaser insisted on repudiation from proceeding with their part of the bargain.

Reliance was placed upon the cases of Jones v. Barkley (1781) 2 Doug 684. In another case British and Beningtons, Ltd. v. North Western Cachar Tea Co. Ltd. (1923) AC 48 at p. 63 Lord Atkinson followed Jones v. Barkley (1781) 2 Doug 684 and relied upon the remarks of Lord Mansfield we have quoted above. In the case before us, since the plaintiff applied to the Court to set the compromise decree aside, the defendant was not bound to continue to carry out the terms of that decree. In our opinion however the performance of the terms of the decree is absolutely immaterial for the purposes of this case.

We would like in this connexion to deal with a contention advanced by Mr. Manuk, on behalf of the respondent, that as long as the plaintiff did not refund all the benefits which she had received under the compromise, she could not be permitted to resist the defendant''s application for the recording of the compromise. No authority for this proposition has been placed before us. If the plaintiff''s objection succeeds and the compromise is not recorded, the plaintiff certainly cannot be allowed to retain more than she would be legally entitled to irrespective of the compromise; but no law has been placed before us to show that she must refund the money received before she could be heard against the defendant''s application. She wanted a trial of the suit on the merits. It was the defendant who raised the bar of the compromise to that trial, and it is for the defendant to establish that the bar exists, viz., that there has been a lawful compromise. There is no question of estoppel here nor of waiver. The plaintiff has no doubt continued to receive some maintenance allowance, but that is not on the basis of the compromise and is without prejudice to either party.

It is contended that Naresh Mohan, Debi Prasad and Hardutti, the defendants in the suit, not having joined in the compromise, it is unlawful and cannot be recorded. No authority has been placed before us in support of this proposition. It is quite open to a plaintiff to compromise his suit with some of the defendants only, leaving the others altogether alone, or proceeding with the suit against them. For instance, if A brings a suit for money against B and C jointly it is open to the plaintiff to compromise with B only and be satisfied with a decree against him and leave C alone. In this case Naresh Mohan was joined as defendant partly because as one of the reversioners of his uncle, Ugrah Mohan, he would be entitled, if the will were to be found invalid, to succeed jointly with Suraj Mohan to the estate after the lady''s death, and partly because he was a cosharer of the Kanchangarh estate which had taken the lease of the estate of Ugrah Mohan Thakur. Similarly Debi Prasad was joint on account of his being the trustee of the Kanchangarh estate, and Hardutti was joined as a transferee from Savi, the executor of the estate, of one of the Calcutta houses.

The compromise was between the plaintiff on the one hand and Savi and Suraj Mohan on the other. They were the parties mainly interested in contesting the plaintiff''s suit. Having given up her claim to the estate and being satisfied with a maintenance for which the estate was sufficient security, the plaintiff need not have troubled about the other defendants. A compromise with some of the defendants cannot be illegal, even if a plaintiff wants to proceed with the suit against the other defendants if he still requires any relief against them; the suit against the remaining defendants would in such a case be disposed of on contest as against them only and by contest as against the defendants who are parties to the compromise. This is in accordance with the view taken in this Court in the case of Abhayanand Singh Vs. Rameshwar Singh Bahadur, where some of the defendants compromised the suit and the Subordinate Judge deferred passing a decree against the consenting defendants and proceeded to hear the suit as against the others.

In the present case no relief was claimed against the remaining defendants personally, and as against them all that she asked for was that she should get the entire estate free from the transfers made by the executor. If she gave up this claim, she had nothing further to do with the other defendants and these latter were not in any way interested in the compromise. We do not find anything unlawful in the compromise because several defendant were no parties to it.

It is true that a shebaitship cannot be transferred for a consideration, and any such transfer is void under the Hindu law; but in the present case there has been no such transfer. The plaintiff was not the de facto shebait and, as we have already found, her right to the shebaitship was doubtful. She was suing to get the shebaitship from the defendant who was in possession of the office. There is no law which prevents a plaintiff from abandoning his suit for obtaining a shebaitship, though it may be that if he does so for personal gain, the arrangement between the parties may be successfully attacked in a proper proceeding. No law insists upon a plaintiff prosecuting his suit if he chooses to abandon it. In this case the plaintiff received no consideration for abandoning her claim to the shebaitship whatever its merits might have been. What she got was a maintenance past and future and a house and a conveyance. She was under the law entitled to them.

There is nothing to show that in fixing the amount of maintenance the question of the shebaitship was so much as referred to by the parties. As a matter of fact the shebaitship is not specifically mentioned in the petition itself. As was pointed out by Rankin, C.J., in the case of Panchanan Banerjee v. Surendra Nath Mukerjee (24) the case of Rajah Vurmah v. Ravi Vurmah (1876) 1 Mad 235 at p. 81 is authority for the proposition that there is a difference between a sale and a transaction not tainted by the motive of private benefit to the transferor. This case of Panchanan Banerjee (24) is no authority in favour of the plaintiff. There the shebaitship was transferred to a stranger, and the lady got some benefit under the arrangement.

In this case there was a perfectly bona fide compromise of a really disputed claim, and we do not think there is anything illegal in it. It was held in the case of Niradbarani Dassi v. Shiba Das Pal (1909) 36 Cal 975 that an alienation of the office of shebait to a closely connected member of the family and without any idea of personal gain was valid under the Hindu law. The case perhaps want a steep further, and its authority, seems to have been doubted in Panchanan Bannerjee''s case (24). We are however not dealing now with an alienation by a de facto shebait but with an abandonment of a suit by a claimant to the shebaitship, without any personal gain to herself, in favour of a man who was in possession as a shebait, and who would at any rate have been entitled to the shebaitship after her death even if she had succeeded in the suit. This is perfectly valid: see Giris Chandra Saw and Another Vs. Upendra Nath Giridas and Others, .

It will be convenient at this stage to dispose of the cross-objection of the respondent about this part of the case. The learned Subordinate Judge, while dealing with this question, seems to have been under the impression that the debuttar claim of the plaintiff has been decided in her favour. His remarks are:

The compromise petition does not contain any mention of any debuttar in it. It only speaks that the maintenance allowance shall be a charge on the estate of Ugrah Mohan Thakur. . . . Therefore the contention that the compromise could not deal with it falls to the ground. If the debuttar property does not form part of the estate, then it does not affect the question of the validity of the compromise. The petitioner may as an heir of Ugrah Mohan Thakur administer the same.

This view of the learned Subordinate Judge is entirely wrong. Para. 8 of the petition of compromise clearly states:

that the plaintiff has given up all the claims made by her in the suit, save and except the claim for maintenance and the maintenance allowance in arrear, and the rent of the house according to the aforesaid term which has been settled. In future (the plaintiff) will not have and shall not lay any claim whatsoever.

Apart from this the defendant being in possession as a shebait, the plaintiff cannot take it without a decree of the Court. There is however no doubt that the plaintiff gave up all her claims in the suit, except the claim of maintenance and house allowance, etc., and we have held in the earlier part of the judgment that the compromise covered the whole suit. There was no reservation and therefore her claim in respect of the shebaitship must stand dismissed. Though the learned Subordinate Judge has not passed any decree about the shebaitship in favour of the plaintiff, his observations quoted above may lead to unnecessary trouble and litigation. In our opinion they are entirely unwarranted and erroneous and cannot be allowed to have any effect.

The uncertainty complained of is first of all about two terms of the compromise, namely, about Suraj Mohan being obedient to the lady and looking after her and about the spending of the interest in consultation with the defendant. We have already dealt with this point. The other uncertainties pointed out are about the provision for the house and the conveyance, as to the parties to the compromise, and as to the estate of Ugrah Mohan on which the maintenance is to be a charge and from which the maintenance is to be paid. We will take these up one by one.

It is contended that the house which the plaintiff is to get is not sufficiently described, nor the conveyance clearly specified, and that the executing Court will find difficulty in securing these things to the plaintiff if the defendant should make any default. Now the provision for the house and conveyance is contained in para. 4 of the petition of compromise which runs thus:

Defendants 1 and 2 will arrange a house for the residence of the plaintiff according to her position at a monthly rent exceeding Rs. 100 and not exceeding Rs. 200 at Benares or some other place, and the payment of rent thereof shall rest with defendants 1 and 2. Besides that they (defendants 1 and 2) will provide a carriage with horse for going to the Ganges for bathing and for darshan of deities (paying visits to idols). The rent of the house and the carriage expense will be in addition to Rs. 1,000 for the maintenance allowance.

We do not find any uncertainty in this. Our attention was drawn to Section 29, Contract Act, which says:

Agreements the meaning of which is not certain or capable of being made certain are void.

Particular stress has been laid upon Illus. (f) to that section:

A agrees to sell to B my white horse for Rs. 500 or Rs. 1,000. There is nothing to show which of the two prices is to be given. The agreement is void.

This illustration has however no application as the uncertainty is incapable of being removed in any manner. "Certum est quod certum redai potest." There is in the case before us nothing in the terms about the provision for a house and a conveyance which cannot be determined with reasonable certainty. The specification that the rent of the house is to be not less than Rs. 100 nor more than Rs. 200 is nothing but an indication of what was meant by providing earlier, that the house is to be in accordance with the position of the lady. The limits given for the rent only make and were clearly intended to make this last more precise; the position of the lady is recognized to be such that a house on a rent of Rs. 100 to Rs. 200 will be considered suitable for her. The defendant is in the first instance to provide such a house and be responsible for the rent. In case he should fail to do so or the house provided by him should not be acceptable to the lady, the Court in the execution department can easily give suitable redress either by the appointment of a commissioner to find a house that is in the judgment of the Court suitable or in the last resort, if the Court should find that this cannot be done, by awarding to the plaintiff suitable compensation, namely, the house rent in cash.

As a matter of fact, during the pendency of this appeal this Court has actually had to make such an arrangement, and to allow the plaintiff to take a house for herself and realize from the defendant rent not exceeding Rs. 200 on production of vouchers. A similar arrangement could, if necessary, be made and has in fact been made by this Court about the conveyance also. It was contended before us rather strenuously that the description of the carriage and the horse has not been given. No description was needed; all that is necessary is a carriage and a horse which can reasonably carry the lady for her bath and worship, and this can be easily gathered from the context. As regards this also there is ample power in the Court to arrange for such a conveyance, and as already indicated, this has actually been done by this Court during the pendency of the appeal.

The next uncertainty pointed out is about the words "estate of Ugrah Mohan Thakur." It is contended that the words are indefinite, in that they do not make it clear whether the estate meant is the estate as it stood when Ugrah Mohan Thakur died, or the estate as it stood on the date of the compromise. This also can easily be made certain. The estate of Ugrah Mohan Thakur so far as the immovable property was concerned continued to be the same, except that one Calcutta house has been sold and another house in Calcutta has been acquired by the Improvement Trust and the estate has been leased out for some years to the Kanchangarh Estate. The sale proceeds of the house have not however been shown to have been taken away from the estate and were apparently used in the administration in meeting the debts left by Suraj Mohan. The lease to Kanchangarh was intended to last only a few years more.

The estate as it stood on the date of the compromise was ample security for the plaintiff''s maintenance. The plaintiff was content to drop her entire suit on getting the maintenance, etc., provided in the compromise, and did nothing, before applying u/s 151, to indicate that she meant to proceed with the suit against the other defendants. In our opinion the words "estate of Ugrah Mohan Thakur" in the circumstances obviously meant the estate as it stood at the date of the compromise and it was substantially the estate as it stood at the time of the death of Ugrah Mohan Thakur. There is no uncertainty in this respect.

Regarding the uncertainty of the parties to the compromise, much need not be said. It was contended that while the body of the petition mentions that the parties have compromised, really speaking the compromise was between the plaintiff on the one hand and the two defendants on the other. "Who were the contracting parties has been made certain by the signatures of the parties concerned. There does not therefore remain any uncertainty in this respect. We hold that the contract is not vitiated by any real, irremediable uncertainty either in the terms or as regards the parties.

The law in this respect is contained in Section 90, Probate and Administration Act (Act 5 of 1881), the law which was in force at the time of the compromise, (corresponding to Section 307, Succession Act of 1925, now in force). The section ran thus:

(1) An executor or administrator has subject to the provision of this section power to dispose, as he thinks fit, of all or any of he property for the time being vested in him u/s 4. (2) The power of an executor to dispose of immovable property so vested in him subject to any restriction which may be imposed in this behalf by the will appointing him, unless probate has been granted to him and the Court which granted the probate permits him by an order in writing notwithstanding the restriction, to dispose of any immovable property specified by the order in a manner permitted by the order . . . .

There is nothing before us to show that the will of Ugrah Mohan Thakur placed any restriction upon the power of the executor and therefore in the absence of any restriction he was perfectly competent to compromise the suit by agreeing to the creation of a charge on the estate of the deceased for the maintenance of the lady. In fact the maintenance of the widow can always be made a charge on the estate of her husband and Mr. Savi did nothing more. But assuming that he had no such power, the transaction would be not altogether void, but only voidable. Sub-C1(4) of this very section says:

A disposal of property by an executor or administrator in contravention of Sub-section (2) or Sub-section (3) as the case may be is voidable at the instance of any other person interested in the property: see the Eastern Mortgage and Agency Co., Ltd. v. Rebati Kumar Roy (1906) 3 CLJ 260 followed in Charu Chandra Pal v. Kalidas Chandra (1910) 10 IC 269.

The only person interested in the property of the deceased is the residuary legatee under his will, namely, Suraj Mohan Thakur. The plaintiff cannot complain of the charge after giving up her claim to the estate, and Suraj Mohan Thakur not only does not object to the creation of the charge, but was a party to it and has all along been endeavouring to maintain the compromise. Now we take up the considerations of law which have been put forward as barring any inquiry under Order 23, Rule 3 into the genuineness and lawfulness of the compromise. They are, as we have said, res judicata, want of registration of the petition of compromise, and waiver.

It is contended that the compromise gave rise to a cause of action, on the basis of which a decree was passed by the Subordinate Judge on 26th November 1924. That decree was set aside by a Division Bench of this Court (Jwala Prasad and Bucknill, JJ.). The decree having been set aside, no fresh decree, it is contended, can be passed on the basis of that compromise. It is even contended that the order of this Court setting aside the decree required that the plaintiff''s suit should be tried on the merits. Reliance has been placed upon the cases of AIR 1930 22 (Privy Council) and Hook v. Administrator-General of Bengal AIR 1921 PC 11 for the proposition that the statement of the principle of res judicata as contained in Section 11, Civil P.C., is not exhaustive, and that the principle should be applied to this case. The contention is however untenable.

The judgment of Jwala Prasad, J., clearly indicates that what the Court ordered was that the factum and the legality of the compromise, which were not inquired into by the lower Court, should be inquired into. It will make the matter clear if we quote a few passages to show what the judgment of this Court really meant. For instance two of the passages are:

(1) She (meaning the lady) on the other hand says that she did not present it (that is the petition of compromise) nor did she authorize anyone to present it and suggests that it was handed over to the Subordinate Judge fraudulently by the opposite party at the railway station in order to obtain an admission from her hurriedly without letting her know the contents of the petition. This again is a contentious matter and has not been investigated. (The expressions within brackets are ours). (2) It seems from the summary order passed by the Subordinate Judge (Mr. N.N. Chakravarty) that he did not at all bestow his mind to the consideration of the compromise and its terms and did not realize the scope of the suit and the parties concerned in it. The compromise was not judicially disposed of, and the order passed by the Subordinate Judge lacks in judicial sanctity and the plaintiff can very well seek to avoid the order as well as the decree passed on its basis.

And in the end the order was that:

the case be restored to its original number and taken up from the stage at which the compromise was filed and disposed of according to law.

It is obvious that the petition of compromise was not finally disposed of by this Court. A compromise, if genuine and valid, bars the trial of the suit, and defendant can very well ask that the bar be first removed before the plaintiff is allowed to proceed to the trial of the suit, and this is what was meant by the application to record the compromise, and the learned Subordinate Judge by his order under appeal has held that the bar exists and has recorded the compromise and a decree is to follow in accordance with it as a matter of course. Reliance is however placed upon a remark of Sir Dawson Miller, C.J., and Foster, J., in the course of the defendant''s application for leave to appeal to the Privy Council against the orders of Jwala Prasad and Bucknill, JJ. The observation was made on an application of the plaintiff for the expeditious hearing of the application for leave to appeal and for maintenance.

The sentence relied upon runs as thus:

We have been asked in this case to return the record of the original suit to the trial Court to enable that Court to proceed with the suit and we think that it is just and proper that we should do so.

The words "to proceed with the suit" are relied upon as being an interpretation of the order of Jwala Prasad and Bucknill, JJ., by the late Chief Justice and Foster, J., and reliance has been placed upon the case of Savitri Ramayya Hegde Vs. Holebasappa Murgeppa, for the proposition that the construction of a document arrived at between the same parties operates as res judicata.

We do not think that Sir Dawson Miller, C.J., and Foster, J., did at all construe the order of this Court. It was a passing remark on the application of the plaintiff. The words "to proceed with the suit" were a part of the request, and their Lordships said that that should be done. The question whether a suit has been com promised or not, which is to be inquired into under Order 23, Rule 3, is as a matter of fact a part of the trial of the suit itself. It is an issue which arises during the pendency of the suit and if it be answered in the affirmative, namely, if it be held that the suit has been lawfully compromised, no other issue needs to be tried. Therefore the words "to proceed with the suit" do not exclude the trial of an issue of compromise in the suit itself.

If a construction of the order of Jwala Prasad and Bucknill, JJ., can constitute res judicata on the point, the consideration will apply with stronger force to the plaintiff herself as will appear presently; and as far as this Court is concerned we are concluded by the clear interpretation put upon that judgment by this Court. When the record went back to the Court below, the plaintiff objected to the trial of the question of the compromise, and by his order, dated 2nd September 1926.(No.29) the learned Subordinate Judge interpreted the order of this Court to mean that the question of compromise was to be tried. His order runs thus:

From the aforesaid facts and circumstances it is abundantly clear that the effect of the order of the Hon''ble High Court is to make an investigation in the first instance regarding the allegation of the lady relating to the compromise. If it is established on evidence to be adduced by the parties that really there was fraud in connexion with the said compromise, or, in other words, if it is proved to the satisfaction of the Court that the said compromise or agreement was not legal, it would not be ordered to be recorded and the suit would then be heard and tried on its merits.

The plaintiff being dissatisfied with this order moved this Court. Das, J., who with Adami, J., heard and disposed of these applications (Civil Revisions Nos. 634 and 635 of 1926) remarked:

It was the contention of Savitri Thakurain that the compromise decree has in effect been set aside by this Court and that the learned Subordinate Judge under the order of this Court should proceed to dispose of the suit. The learned Subordinate Judge rejected this contention and has fixed a date for disposal of the application which was presented in April 1925.

The learned Judges did not express any dissent from the view taken by the learned Subordinate Judge. The plaintiff was, however, not satisfied, and the matter was pressed once more before this Court in Civil Revision No. 259 of 1927. The order runs thus:

The first point taken by Mr. Pugh is that the order of Jwala Prasad, J., in this Court precludes the Court below from entering into the question of compromise. I do not read the order of Jwala Prasad, J., in the way in which Mr. Pugh reads it and for myself I am concluded by my own decision, dated 17th December 1925. This point must accordingly be overruled.

The order of 17th December is the one which we have just referred to. Sir Dawson Miller himself while rejecting the defendant''s application for leave to appeal to the Privy Council said as follows:

The order in the present case decides nothing as to the rights of the parties in the suit and merely directs the Judge to rehear the application for recording the compromise and to proceed thereafter according to law.

We, therefore, hold that the inquiry about the genuineness and validity of the compromise was not barred by any principle of res judicata.

It is contended that as the petition of compromise creates or declares the right of the plaintiff to get a maintenance of Rs. 1,000 per month and creates a charge on the immovable property in respect of the same and as it is not registered, it is not admissible in evidence, and that the compromise having been reduced to writing, oral evidence of its terms cannot be given and, therefore, there is no material to prove the compromise, and hence none can be recorded. The law in this respect is contained in Sections 17 and 49, Registration Act of 1908. Sub-Cl.(b) of Section 17(1) enacts that:

non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of Rs. 100 and upwards, to or in immovable property

must be registered Section 49 enacts that the documents which are required to be registered u/s 17 shall not be received in evidence of any transaction affecting such property, etc., unless it has been registered. The question before us is a very narrow one, namely whether a petition of compromise asking the Court to pass a decree on certain terms comes within the purview of Section 17, Registration Act.

In the case of Bindesri Naik v. Ganga Saran Sahu (1897) 20 All 171, their Lordships of the Privy Council had before them the finding of the High Court of Allahabad that judicial proceedings did not require registration u/s 17 of the then Registration Act (Act 3 of 1877). Lord Watson delivering the judgment of their Lordships observed:

Although, in the view which their Lordships take the question whether those proceedings can be founded on, without their having been registered in terms of Act of 1877, does not necessarily arise in this appeal, they think it right to add that, having heard counsel fully upon the point, they are satisfied that the provisions of Section 17 of the Act do not apply to proper judicial proceedings, whether consisting of pleadings, filed by the parties, or of order made by the Court.

In Pranal Anni v. Lakshmi Anni (1899) 22 Mad 508 the Judicial Committee held that the razinamah, in so far as it was submitted to and was acted upon judicially by the learned Judge, was in itself a step in a judicial proceeding not requiring registration. The above two cases were followed by the Madras High Court in Natesan Chetty v. Vengu Nachiar (1909) 33 Mad 102. There have been a number of decisions of various High Courts to the same effect. It is sufficient if we refer to a few of them. In the case of Appasami v. Manikam (1885) 9 Mad 103, where the question was whether a disputed compromise can be recorded u/s 375 of the old Civil P.C., one of the questions raised was that as the compromise created a charge on immovable property, an oral agreement was in effective in view of Section 59, T.P. Act.

The Madras High Court held that:

the intention of the parties to the agreement was, not that it should of itself create a charge on immovable property but only that it should create a right to obtain a decree by way of specific performance. It is in the nature of a preliminary contract intended to be perfected by another document,

and their Lordships did not consider that it was inoperative under Act 4 of 1882. Bindesri Naik''s case (1897) 20 All 171 was followed in Allahabad in Baghubans Mani Singh v. Mahabir Singh (1905) 28 All 78. Since these decisions Act 3 of 1877 has been replaced by Act 16 of 1908, the present Registration Act. The legislature must have been aware of the pronouncements of the Judicial Committee, but it is significant that it enacted the section in its old form. Had the legislature intended that petitions of compromise or petitions of the nature which were before their Lordships in Bindesri Naik''s (1897) 20 All 171 and Pranal Anni''s (1899) 22 Mad 508 cases required registration, they would have made provision for it in the new Act of 1908. In the case of Nagendra Mohan Boy v. Pyari Mohan Saha (1915) 43 Cal 103 at p. 112 the Calcutta High Court held that it was a well-settled principle of construction that the legislature is presumed to know not only the general principles of law but also the construction which the Courts have put upon particular statutes.

Their Lordships relied upon the observations of Campbell, C.J., in Mansell v. The Queen (1857) 8 E1. & B1. 54 at p. 73 and of James, L.J., in Ex parte Campbell (1870) 5 Ch. Ap. 703 to the effect that where a section of an Act which had received a judicial construction is re-enacted in the same words, such re-enactment must be treated as a legislative recognition of that construction. That the attention of the legislature was drawn to Section 17, Registration Act of 1908, is clear from the fact that after the decision of their Lordships of the Judicial Committee in the case of Hemanta Kumari Debi v. Midnapore Zamindari Co. AIR 1919 PC 79, which laid down that a decree based upon a compromise even if it went beyond the scope of the suit did not require registration, they intervened and amended Section 17(2), Clause (vi). That clause at first did not refer to compromise decrees at all. It ran thus: "Any decree or order of a Court and any award." This clause is one of the exceptions to Section 17. Since the decision in Hemanta Kumari''s case AIR 1919 PC 79 it was amended in 1929 and runs thus:

Any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding.

It is to be noted that the award which did not require registration under Act 16 of 1908 or the earlier Act was taken out from the exception and also a decree based upon a compromise which affected properties not within the suit. It is inconceivable that the legislature exempted a compromise decree from registration, provided the compromise is within the scope of the suit but intended that the compromise petition itself should require registration.

Such a construction will make the exception in Clause 6 nugatory. Compromises were in the consideration of the legislature, and if they wanted that a petition of compromise should be compulsorily registrable but not the decree, they would have said so. The fact remains that a decree based upon a compromise which does in fact create or extinguish a right is exempt from compulsory registration. The compromise petition which, on the other hand, only asks the Court to create or extinguish that right cannot be held to be compulsorily registrable. No authority has been placed before us for such a proposition, which is entirely against the intention of the legislature as expressed in the year 1929.

It may be argued that the amendment of the section does not affect the present case where the compromise was effected in 1924, but that is really immaterial; for as we have said, even at that time the interpretation of the Judicial Committee in Bindesri Naick''s case (1897) 20 All 171 the decisions in Pranal Anni''s case (1899) 22 Mad 508 and Hemanta Kumari''s case AIR 1919 PC 79 were there and in Hemanta Kumari''s case AIR 1919 PC 79 in the Calcutta High Court Beachcroft, J., had based his decision on the fact that judicial proceedings do not require registration.

No doubt this ground was not argued before their Lordships of the Privy Council, nor was it dealt with by them, but at the same time their Lordships did not express their disapproval of the interpretation of law which was in conformity with their own observations in Bindesri Naik''s case (1897) 20 All 171 and in Pranal Anni''s case (1899) 22 Mad 508. The two Privy Council cases were followed by a Full Bench of this Court in Charu Chandra Mitra Vs. Sambhu Nath Pandey and Others, where it was held hat affidavits, petitions and pleadings filed in the course of judicial proceedings do not require registration. But apart from this, Section 17, Registration Act, itself specifically provides that its provisions do not apply to a document which does not itself create, declare, assign, limit or extinguish any right, title or interest, etc., etc., but merely creates a right, to obtain another document which will when executed create, declare, assign, limit or extinguish any such right, title or interest.

The petition of compromise before us comes clearly within this exception. The petition does not by itself create a right of getting maintenance, etc., or create a charge by itself. No right in favour of the plaintiff is created by it, nor does it create a right in favour of the defendant to extinguish the claim of the plaintiff to the estate, gardens and jewellery. The petition enables the par ties to go to Court and have a right in favour of the plaintiff created and her claim as against the defendant extinguished. It is therefore not necessary to rely upon the observations of their Lordships in the casts referred to above. It is needless for us to refer to the cases relied upon by the appellant. None of them are to the point. Some of them refer to petitions filed before Revenue Courts which were sought to be used later on in civil suits as a basis of the title created by those petitions. No case has been placed before us showing that a petition of compromise before a Court of justice cannot be acted upon by that Court itself unless it is registered.

That there is a distinction between a petition being used in the Court to which it is presented and its being subsequently used in another Court for the purpose of proving the right, if any, under that petition, has been recognized by their Lordships of the Privy Council in the case of Vyaravan Chetti v. Subramanian Chetti AIR 1920 PC 33 where Lord Buckmaster said:

and if, on the other hand, there are two distinct provisions, the one relating to rights of property and the other with regard to the division of the realisation moneys then, as these proceedings relate merely to the question of the realized money, it need not be registered for the purpose of being given in evidence in this suit, although it may be that it would require to be registered for the purpose of being given in evidence in a suit relating to the regulation of the rights against the estate itself.

We therefore hold that the petition Ex. A did not require registration and can be acted upon. It is contended that when the case went back to the lower Court after the order of Jwala Prasad and Bucknill, JJ., the plaintiff took steps to have the entire suit tried and the defendant acquiesced in it. We do not however find any acquiescence or abandonment of the compromise by the defendant. On 22nd July 1927 the plaintiff filed an application renewing her previous application of 1923 to have a commission issued for her examination, and it is said that the defendant did not raise objection on that score as the commission was intended to examine the lady on the whole suit; but this is not so. As a matter of fact, on 16th August 1926, the defendant did apply for the stay of issue of commissions and requested the Court to dispose of the case on the basis of the compromise. We do not therefore think that there has been any abandonment of the compromise by the defendant. These are our conclusions on the various questions of law and fact involved in the present appeal.

The judgment has become very long, and it will be useful if we give a summary of our finding which are in general agreement with the learned Subordinate Judge.

We have found that the terms of the compromise, mentioned in the petition Ex. A, have been proved to be those which were agreed to between the parties. The rival terms, alleged by the plaintiff, have not been proved to be the terms settled between them, and Suraj Mohan could not have agreed to them. No fraud was practised upon the plaintiff and she was not imposed upon in any way. Every item of the compromise was settled by her and she understood them all fully, and willingly compromised the suit on these terms. Bodh Krishna Jha, a first cousin of the plaintiff, came to Suraj Mohan in December 1923, and suggested a compromise on the basis of the lady (getting a maintenance.

Suraj Mohan expressed his inability to do anything in the matter till he became a major. He attained majority on 1st February 1924, and Bodh Krishna Jha again came to him in March of that year, and suggested a meeting between him and the lady and it was settled that he would meet her at some place of pilgrimage as he would not do so at Darbhanga. In October of that year Bodh Krishna Jha came to him for a third time and told him of the lady''s expected visit to Simaria Ghat for the Kartick baths in the Ganges. On or about 16th of that month Durga Nath who was married to the plaintiff''s sister came to Suraj Mohan and invited him to see the lady at Simaria Ghat. On this invitation Suraj Mohan went to Simaria Ghat.

There the main terms of the compromise were settled viz. that the lady would retire from the contest of the suit if given a maintenance of Rs. 1,000 per month from the date of her husband death, the arrears for the past period to remain in deposit with the estate and interest thereon at 6 percent per annum to be paid to her for religious and charitable objects. These terms having been settled, Durga Nath was sent to fetch Ram Krishna Jha from Darbhanga where he was then practising as an Advocate. Ram Krishna Jha is a first cousin of the plaintiff, had been financing her, and has been in fact the life and soul of this case. Durga Nath could not find Ram Krishna Jha, as the latter had presumably come to Patna to file the revision application of 18th November in this Court in connexion with the suit.

Thereupon the lady and Suraj Mohan all came to Monghyr. The hearing of the suit had been fixed for 21st November. At Monghyr the party put up in the house of Baiju Mandal, the then Sarishtadar of the District Judge''s Court. The lady willingly put up in that house. Her story that for several days she took the house to be a Dharamshala is untrue. No deception was practised on her. She was under no restraint, and was admittedly going to the river Ganges for her daily bath, and came out of the house unnoticed on her way to the station. Ram Krishna Jha was again sent for, and when he did not come, his brother, Bodh Krishna Jha, who had come to negotiate for peace was sent for from Supaul at the instance of the lady. On 19th November, Khan Bahadur Sayeeduddin, a lawyer for the lady, was sept for, and came to the lady and explained to her the nature and extent of her suit, which according to our finding she already fully knew and understood. The lady told Maulvi Sayeeduddin the terms on which she had compromised the suit and asked him to prepare the necessary draft. Bodh Krishna Jha came on 20th November 1924. Ram Bahadur, a clerk of Ram Krishna Jha, who was looking after the case of the plaintiff also reached Monghyr on the same day. Bodh Krishna Jha and Ram Bahadur Singh actively took part in the preparations of the draft of the compromise, and they were not witnesses of truth when they depose that they were watching the events from a distance.

Bodh Krishna Jha actually put up in the house where the lady was staying. The lady''s version that Bodh Krishna Jha only came to take Rupees 20,000 which was intended to be paid to Ram Krishna Jha and that he took no part in the compromise is false.

A draft was prepared by Bodh Krishna Jha and Ram Bahadur Singh in consultation with Maulvi Sayeeduddin, and possibly of Babu Hito Rai, another pleader of the plaintiff. At that stage the lady wanted some additional terms, viz., that the arrears of maintenance should be paid to her by instalments, that she should get a house at a place of pilgrimage, and a conveyance. These terms were ultimately agreed to by the defendant and embodied in the draft, and this draft in the completed form was read over to the plaintiff, and Ex. F is the copy of that draft, except the clause about the personal exemption of Mr. Savi, the executor of the estate of the deceased Ugrah Mohan Thakur, which was added later on at the instance of Mr. Savi and agreed to by the lady. Bodh Krishna and Balbhadra (a man of the defendant''s) went to Bhagalpur with this draft to obtain the consent of Mr. Savi. Mr. Savi at first refused, as he thought that the estate was not in a position to bear the burden of so much of maintenance of the plaintiff, but he ultimately agreed if a clause of personal exemption for him was added to it.

This was agreed to by the lady, and the petition of compromise with this clause added was duly fair-copied at the house of Rai Bahadur Lakshmi Prasad Singh in the presence of Bodh Krishna Jha. In the meantime the lady had left her residence and had gone to the railway station. The petition was taken there, and she signed it there, after reading it and after fully understanding the contents. Ram Krishna Jha did come to Monghyr either on 23rd or on 24th November; the former is the date according to the defendant and the latter according to the admission of the plaintiff; the actual date to our mind is not of importance. According to our finding he put up in the same house as the plaintiff and the two had full consultations about the terms of the compromise.

We believe that the petition of compromise was read by Ram Krishna Jha at the railway station, and he read it over to the lady. We disbelieve Bodh Krishna Jha when he says that he and Ram Krishna Jha came to the railway station just at the time when Rs. 20,000 was to be paid to the plaintiff, and went away soon after. These two were all along present there, and the whole transaction took place in their presence, and they participated in it; and the petition of compromise was duly signed by the lady and she also wrote out in her own handwriting a receipt for Rs. 3,000. Rs. 20,000 was made over to Ram Krishna Jha at the instance of the lady. At the instance of the Subordinate Judge, who was present at the railway station, the petition of compromise was once more read over to the lady by Baiju Mandal, and we believe that she heard it and understood everything of it.

Her version that she could not follow what was being read, on account of the noise and on account of the fact that she was engaged in conversation with Suraj Mohan Thakur is not true. She has intelligence, knowledge and capacity enough to understand every detail of the transaction, and she fully understood them and entered into them with all the knowledge of their effects. She is literate, knows Hindi very well, and can write it fluently. She knows a little English as well. She is fully familiar with the Court language in which the petition was written. Her story that she had forgotten Hindi and that she signed the petition on trust and on letter for letter dictation from Suraj Mohan is false. Her signatures on the various Vakalatnamas and her verifications on the plaint and petitions falsify that story of literary incapacity. She received advice from Maulvi Sayeed-ud-din, and the advice of Mr. Ram Krishna Jha, Bodh Krishna Jha and Ram Bahadur Singh was available to her and we believe that she did receive advice from them all, and it was with all this advice that she entered into the compromise.

While the defendant has produced all the witnesses he could produce, the plaintiff has withheld important witnesses like Maulvi Sayeed-ud-din, Durga Nath, Babu Hito Roy and Mr. Ram Krishna Jha. Babu Hito Rai and Durga Nath were not in collusion with the defendant. After the compromise the lady came to Bhagalpur and there she mentioned the terms of the compromise in a general way to various persons who came to visit her. She was very well looked after and was quite comfortable there. In the meantime Ram Bahadur obtained a copy of the petition of compromise for her, and Bodh Krishna Jha and Ram Krishna Jha visited her at Bhagalpur during the month of December 1924. In January she went to Allahabad for Kalpbas. Suraj Mohan went along with her and helped her comfortably to settle there and came away after giving her Rs. 1,500. The plaintiff''s story that Rs. 500 was given for her kitchen expenses and Rs. 1,000 was sent later through Balbhadra for the (barkhi) sradh of her husband is devoid of truth. So is her story that it was at Allahabad that for the first time she came to know of the terms of the petition of compromise (Ex. A).

The story that Balbhadra brought these terms to her notice at Allahabad is unworthy of credence. No fraud was practised upon her. There was in our view no opportunity even for any fraud, for during the whole course of the negotiations and the settlement of the terms of the compromise, she was all along accompanied and surrounded by several of her admitted well-wishers and advisers and those who were looking after her case. We have also found on the evidence on the record that the defendant has discharged the onus, if it lay upon him, of showing that the compromise was fully understood by her when she signed it; in other words, that her physical act of execution was accompanied by the requisite mental act.

The compromise was in every way fair and reasonable. We have discussed the condition of the estate, and have held that the estate was not in a position to bear a maintenance allowance of Rs. 1,000 for 14 or 15 years from the death of Ugrah Mohan Thakur. There was very little chance of the plaintiff''s success in her suit, either on the ground that she had lost the Bhagalpur case on account of the fraud of her karpardaz, nor was there any chance of her success on the ground of the invalidity of the will under the Mithila law, which, it is claimed for her, allows a wife to force a partition upon her husband, and under which it is claimed that a gift of his entire property by a man having a wife is invalid.

The compromise was not without consideration, nor was it for inadequate consideration; the consideration which the lady received for abandoning her claims to the estate, jewellery and gardens was ample under the circumstances of the case. We have also held that the compromise is perfectly lawful, that it will not contravene Section 42, Specific Relief Act, to pass a decree in accordance with it, and that an executable decree can be passed in the suit. A contract to compromise a suit is specifically enforceable in the suit itself by a proceeding under C. 23, Rule 3, and if the Court finds that a suit has been compromised by a lawful agreement, it is bound to specifically enforce that agreement by recording the compromise and passing a decree on the basis of it. The provisions of Order 23, Rule 3, of the Code are mandatory. The contract of compromise was not rescinded on account of any default of the defendant. Defendant has all along been ready and willing to perform his part of the obligations embodied in the compromise, viz., to submit to a decree for past and future maintenance, for a house and conveyance.

We have held that till the repudiation petition was filed by the plaintiff on 7th April, the defendant was all along carrying out the terms of the decree itself. The compromise is not unlawful on account of the other defendants not joining in it; and that the abandonment of her claim to the shebaitship of the trusts created by Madan Mohan Thakur and Ugrah Mohan Thakur is not illegal. Our finding is that all the essential terms of the compromise are neither vague nor uncertain. Two terms only, viz., those about Suraj Mohan, being obedient to the lady and looking after her, and about the interest on the arrears of maintenance being spent on scholarships and religious works in consultation with the defendants, are certainly unenforceable, but they are severable parts of the contract, and the defendant has elected to forego the condition that he is to be consulted as regards the expenditure.

The compromise is not void on account of Mr. Savi, who was the executor of the estate of Ugrah Mohan Thakur, not having obtained the permission of the Probate Court. He was fully empowered to compromise. Even if such permission be considered necessary, that would only make the compromise voidable at the option of a person interested in the property. The only person so interested under the will is Suraj Mohan Thakur who wants to abide by the compromise and was himself a party to it. Enquiry into the genuineness and validity of the compromise is not barred on the ground of res judicata; the petition of compromise did not require registration; and finally, in our opinion, the defendant has not waived his rights under the compromise, and is entitled to have the compromise recorded under Order 23, Rule 3.

These being our findings the plaintiff''s appeal must be dismissed with costs. As this is a miscellaneous appeal, it is necessary for us, under the rules of the Court, to fix the hearing fee. Though a miscellaneous appeal, the hearing has occupied a large number of days, and the time occupied in the preparation and hearing of the appeal has not been less than would have been necessary in an appeal from an original decree. The usual practice in such cases, where an ad valorem fee is not prescribed, is to fix a daily hearing fee; but in our opinion this is a case in which it will cause somes hardship to the appellant to fix a daily fee. In our opinion the ends of justice will be met if we fix the hearing fee as if this were an appeal from an original decree in the suit itself, and we fix the maximum hearing fee which is ordinarily allowed in appeals from original decrees, viz., Rs. 5,000. Out of this amount, Rs. 250 will go the respondents who are the heirs of Mr. Savi, deceased, and have also entered appearance in this case, and the rest viz., Rs. 4,750, will go to the respondent Suraj Mohan. The other respondents must bear their own costs.

We now take up the cross-objection of the respondent Suraj Mohan. It was directed against two parts of the judgment of the learned Subordinate Judge, one in connexion with his remarks about the debuttar property, which we have already dealt with. The observations of the learned Subordinate Judge are wrong and should be treated as such. The other objection is directed against his order not allowing costs to the respondents. The learned Subordinate Judge has given no reason for not awarding costs against the plaintiff. Possibly he considered that the lady had no means of her own, and any costs awarded against her would have to come out of her maintenance allowance.

Ordinarily, the lady was entitled to our sympathy. Her married life was apparently not very happy. She was an orthodox Hindu, while her husband had become more or less westernised, and there are indications that she was to some extent neglected--to put it mildly--in favour of a mistress with whom the deceased was living. In her husband''s time, though she was given all the honours of the lady of the house, the allowance given to her was not very liberal. By his will her husband left her a very small allowance of Rs. 100 per month. In those circumstances, if she took into her head to fight the will of her husband, one might have excused her; but she had no justification for carrying the litigation on after the compromise with Suraj Mohan, a young lad, who admittedly used to look upon her almost as a mother. We have said that, according to the plaintiff herself, the boy went to Simaria Ghat and lay prostrate at her feet.

He agreed to all the terms the lady desired for the compromise, paid her Rs. 20,000 which she made over to. Mr. Ram Krishna Jha, brought her to Bhagalpur and admittedly looked after her there satisfactorily. When she went to Allahabad, the boy accompanied her, and she was comfortably lodged there and given Rs. 1,500. Her maintenance, as we have held, was overpaid.

Unfortunately, at Allahabad, obviously under evil advice, she thought of starting the fight once more. In our opinion this was entirely unjustified the respondent not unnaturally characterised it before us as a blackmailing attempt and as another turn of the screw. The plaintiff and her friends thought of extorting more terms from the inexperienced youth Suraj Mohan. The fight was carried on with bitterness, and some applications were distinctly vexatious.

The trial was protracted by introducing issues which did not directly arise in the case. The Court, of course, could not at that stage of the suit prevent it, but in the end it becomes clear that a number of matters were introduced which were not essential for the proper determination of the narrow issue involved, viz. the genuineness and validity of the compromise. The plaintiff attempted to substantiate her case by a large number of false statements. She went the length of saying that while she could read and write Hindi and a little English during the life time of her husband she had forgotten everything since then. Her handwriting and its fluency clearly show this to be untrue.

She further attempted to support her case by false witnesses and by withholding from the witness-box important witnesses like Durga Nath Jha, Maulvi Sayeed-ud-din, and last but not least Mr. Ram Krishna Jha. By these means she unnecessarily prolonged the case. Charges of fraud against various persons were recklessly made, and in the case of Babu Hito Rai easily withdrawn. These being our findings, we feel that the costs of the Court below cannot properly be withheld from the respondent. The hearing of this matter after the case was sent back by this Court on 8th June 1926, was protracted. There were 27 contested hearings in the interlocutory stage and twenty hearings in the main hearing of the case.

The maximum fee allowable in miscellaneous matters in the lower Courts is ordinarily Rs. 150 only. This amount will be absurdly insufficient in this case. Discretion has been left to the Court and, in our opinion, a daily fee of Rs. 100 for each hearing at the final stage, or altogether Rs. 2,000, and Rs. 50 per day for the contested hearings during the interlocutory stage, will meet the ends of justice. This brings the costs to a total of Rs. 3,350. The cross-objection must, therefore, be allowed as indicated above.

It only remains for us to dispose of an objection which was raised by Mr. Ghosh, one of the learned advocates appearing for respondent 2, as to our competency to proceed with this appeal. The contention is based on these facts: The plaintiff, after the order to record the compromise was passed by the Court below, preferred two appeals: one, against the other recording the compromise, and the other against the decree which was passed in consequence of that order. The appeal against the decree was accompanied by a petition for permission to appeal in forma pauperis, as the plaintiff had instituted her suit as a pauper. Two appeals, namely, the present miscellaneous appeal against the order recording the compromise and the appeal against the original decree, were preferred as the plaintiff was apparently in doubt about the correct remedy open to her, in consequence of a decision of the Calcutta High Court in Bengal Coal Company, Ltd. Vs. Apcar Collieries, Ltd., and Others, to the effect that an order recording a compromise followed by a decree merges into the decree, and that it is the decree that is appealable, and not the order. The appeal against the order was however admitted by a Bench of this Court Sabitri Thakurain Vs. F.A. Savi and Others, and it was held that an appeal lay against the order as expressly provided in the Civil Procedure Code, Order 43, Rule 1(m), and it was indirectly held that no appeal lay against the decree itself, being barred u/s 96(3) of the Code. The appeal against order having been admitted, it was proceeded with and we are now disposing of it.

Plaintiff''s application for permission to appeal as a pauper against the decree itself was kept pending till the disposal of this appeal. When the argument in this appeal was completed, we took up that application, and being clearly of opinion that no appeal lay against the decree, we rejected it.

As it is not usual, while refusing such applications, to give reasons, we did not do so; but, in fact, the reason was mainly that no appeal lay at all. The same view had been taken by implication, as we have already said, in this very case by a Bench of this Court and also in the case of Govindaswami Kadavaran v. Kaliaperumal Munayathiriyan AIR 1921 Mad 696, where Courts-Trotter, J. held that no appeal lay against a decree passed upon compromise, even if the compromise be disputed. For a consent decree to come within the prohibition of Section 96(3) of the Code it is not necessary that the consent should continue till the passing of the decree.

This also appears from a recent decision of their Lordships of the Privy Council in an appeal from a decision of the Judicial Commissioner of the Central Provinces in AIR 1931 107 (Privy Council) . When we refused to grant leave to the plaintiff to appeal as a pauper, the plaintiff''s advocate intimated to us that his client had no intention of paying the court-fee and pressing the appeal.

We accordingly dismissed it on that very day, i.e., 22nd August 1932. There being no intention of laying before us a properly stamped appeal, the appeal was bound to be dismissed or rejected on that ground alone and there could be nothing said about whether such an appeal at all lies. On these facts the contention of Mr. Ghosh has been that, as we have dismissed the, appeal against the decree, the present appeal against the order cannot proceed, because if we were to allow this appeal, it would mean the consequential setting aside of the decree. We find no force in this contention.

As we have said, the application to sue as pauper was rejected on the ground that no appeal lay against a decree passed upon compromise, being prohibited by the Code; and we dismissed the appeal as no court fee was paid. Matters thus are on the same footing as if no appeal against the decree had been presented, as in fact none could be properly presented under the law. The dismissal of the appeal, on the grounds stated above, does not preclude us from proceeding to determine the appeal against the recording of the compromise.

Our thanks are due to the Bar for the great assistance they have so willingly rendered to us; one and all they have been of great use to us. The result is that the appeal of the plaintiff against the order recording the compromise is dismissed with costs. We fix the hearing fee at Rs. 5,000, out of which Rs. 250 will go to Mrs. Savi and Miss Mouna Savi, respondents 1 and 2, and remaining Rs. 4,750 to respondents Suraj Mohan.

These respondents will also get their other costs incurred by them in this appeal. The other respondents will bear their own costs. The cross-objection of Suraj Mohan is allowed. The observations or finding of the learned Subordinate Judge in respect of the debutter properties is set aside, Suraj Mohan is allowed all the costs incurred by him in the Court below, since the time the matter was sent back to that Court by the order of this Court, dated 8th June 1926; pleader''s fee Rs. 3,350. A decree for the costs of lower Court will be prepared in the Court and will be incorporated in the decree to be prepared in this appeal.