Subhas Chandra Deo and Others vs Subasini Deb and Another

Ram Labhaya, J.—This Judgment will dispose of three First Misc. Apps. Nos. 8A, 9A and 10A of 1948.

The appellants are Judgment debtors in two cases which have given rise to App. Nos. 8A and 10A of 194 Section the third App. No. 9A of 1948 arises out of a suit in which the appellants were the plaintiffs Respondents are the decree-holders in the two execution cases and defendants in, the suit (No. 4 of 1947) Instituted by the appellants.

In the two execution cases, the appellants, applied to have an adjustment; recorded under Order 21, Rule 2. They also applied for same adjustment to be recorded as a compromise in the suit in which they were plaintiffs.

The case of the appellants was that the, three matters, viz., the two, execution proceedings and their own suit in which they had prayed for a decree for a sum of Rs. 3686-3-8 against the respondents were settled by a compromise'' and the terms of the settlement were embodied in a document (Rafanama) marked Ex. 1. Act cording to the terms embodied in the rafanama (Ex. 1) which has been relied on by the appellant in all the three cases, the appellants became entitled to a sum of Rs. 2666/- out of their claim in the suit and they were permitted to pay the decrial amounts claimed from them In the execution cases by installments. The applications in all the three cases were contested. The respondents averred that the document, Ex. 1 was collusive, fraudulent and forged. Respondent 1 denied that she signed, or executed it she also pleaded ignorance of the contents of the document and urged the document was not binding on the minor respondent under any circumstances. Respondent 1 is a widow and the second respondent is her minor son.

The learned Subordinate Judge at Cachar in whose Court the three matters were pending was inclined to the view that Subasini Devi, respondent 1, signed the document Ex. 1 but she was not in a position to appreciate the implications of the document. He also observed that she had no right to bind her minor son with a settlement or adjustment of the nature embodied in Ex. 1 and in view of the statement of Raj kumar Deb, a Witness of the appellants he also held that the adjustment was not final. The applications of the appellants were disallowed in all the three cases.

In the three appeals the only question la whether the adjustment relied on has been proved to have been made. The appellants examined three witnesses. (After a discussion of the evidence the Judgment proceeds).

The contention raised by the respondents was that the document, Ex. 1 was a forged document and that it had not been executed by Subasini The, appellants were dealing with a widow The interests of minor was also involved In the absence of any statement from the witnesses of the appellants that the document was read out and explained to Subasini Deb and that she signed it with full knowledge of its contents, it cannot be said that the execution of the Rafanama (Ex. 1) has been proved Mere proof of signature in a case, where the plea is that the document is a fraudulent and a forged one, would not be enough as held by the learned Sub-Judge. The alleged compromise has been set up by the appellants. It was for that to satisfy the Court that the contents of the document were explained to respondent 1: that she understood them and that she had some disinterested and competent person with a fair understanding of the whole matter to advise her The appellants tried to show that the father of Subasini was present But on this point their evidence is not worthy of belief. We are also of the view that it is not safe in the circumstances of the case to hold that it has been proved that the document in question bears the signatures of Subasini In the face of a categorical denial from facer we are not persuaded to give a positive finding in favour of the appellants on the evidence of the witnesses who are apparently interested In the appellants, particularly in view of the tact that Srish Babu has not chosen to come Into the witness-box even though the genuineness of the document was seriously challenged. The alleged genuineness should have been proved by expert testimony. Our conclusion is that the appellants have failed to prove that the Rafanama, Ex. 1 was duly executed by Subasini Devi.

It is noteworthy that Jogno Mohan Deb, witness 1 for the appellants, described Ex. 1 as a rough wilting. The implication may well be that some other writing was to be executed subsequently. This conclusion is supported by a clear statement made by the second witness Rajkumar Deb, who deposed that the final adjustment was to be embodied in a paper after necessary additions and alterations and then the writing was to be got registered. The conclusion of the learned Sub-Judge that the alleged settlement was in no sense final does receive support from the evidence produced by the, appellants themselves.

The arrangement embodied in the document in question affects immovable property Also. According to the first term of this document, Subasini surrendered her share in the main dwelling house and Srish Babu was to have it dismantled and rebuilt at Anr. since The liability to the extent of Rs. 2666/- was accepted in the suit and so far as execution cases were concerned, appellants were allowed to make payment by installments. It does not appear how the arrangement could be described as one benefiting the minor. In any case Subasini Devi could not enter into any compromise or settlement on behalf of the minor with reference to the suit or the execution proceedings without the leave of the Court This legal position is not disputed and a partial adjustment of the matters in dispute cannot be recorded as we nave come to the conclusion that due execution Ex. 1 by Subasini has not been proved.

The result is that these appeals must Jail on the merits. Appeal No. 9A of 1948 is against the order refusing to record the compromise in the suit instituted by the appellants. The suit was for recovery of a sum of Rs. 3686-3-9 the appeal in this case ought to have been preferred in the Court of the District Judge. This appeal must fail on this ground alone. The decision of the question arising in this appeal was unavoidable, it being the only question which arose in the other connected appeals.

The result is that all the three appeals tail and they are dismissed with costs though respondents will recover only one set of costs in all the three appeals.

Thedani, C.J.

I agree.