B.K.Ray, J. -
(1.) THIS is an appeal under Order 43, Rule 1(m), Code of Civil Procedure against an order recording a compromise and passing a decree in accordance there with in the suit. The Appellant filed the suit out of which this appeal aries for a declaration that the Defendant No. 1 did not acquire any right on the strength of the sale deed dated 15 -5 -1962 alleged to have been executed in his favour by the Plaintiff in respect of the suit lands covering an area of 3.70 acres. The short facts giving rise to the present appeal are as follows: The Plaintiff is a Prudanashin and illiterate lady. She only knows to sign her name. Her husband died in 1950. After her husband 's death, as she was ill -treated by her husband 's brother who wanted to grab her properties, she took shelter under Defendant No. 1 who was a rich and influential man. The Defendant No. 1 thereafter managed Plaintiff 's properties. Taking advantage of the confidence the Plaintiff reposed on Defendant No. 1, the latter got a deed of simple mortgage in respect of (sic) acres of land from the Plaintiff by making a false representation to her that the said document was a power of attorney. Some time thereafter, Defendant No. 1 wanted to purchase some land from the Plaintiff who agreed to sell 2.50 acres of land for Rs. 5,000/ -. Defendant No. 1 thereafter took the Plaintiff to Balasore for execution and registration of the sale deed. Instead of getting a sale deed in respect of 2.50 acres of land for Rs. 5,000/ -, Defendant No. 1 by practising fraud on the Plaintiff got a sale deed from her in respect ' of 3.70 acres of land for Rs. 3,500/ -. The contents of this sale deed was never read over and explained to the Plaintiff and her signatures thereto were taken on a false representation made to her that it was a sale deed in respect of 250 acres of lands for Rs. 5,000/ -. The Plaintiff after putting her signatures on the said document came to learn of the fraud played upon her. Thereafter, she refused to register the document. Defendant No. 1 filed an application under Section 73. If the Indian Registration Act before the District Registrar, Balasore who after an enquiry directed registration of the said document on payment of Rs. 1,500/ - by Defendant No. 1 to the Plaintiff. As the Plaintiff did not accept the sum of Rs. 1,500/ - as directed by the District Registrar, the said sum was deposited in the Treasury in the name of the Plaintiff and the document was registered. Thereafter, the Plaintiff instituted the suit for the aforesaid relief.
While the suit was pending, there was a talk of compromise and it was finally settled between the parties that the Plaintiff would take return of Rs. 1,500/ - lying in deposit to her credit in the Treasury and would return the same to Defendant No. 1 who would thereafter return the sale deed and relinquish his claim to the properties in suit and would withdraw the damage suit filed by him against the Plaintiff After this settlement, the Plaintiff was brought to Balasore by Defendant No. 1 who got deed of compromise scribed and without reading over and explaining the terms of the compromise got Plaintiff 's signatures thereto and filed the same in Court on 24 -2 -1968 along with two other petitions. In one of these two petitions, a prayer was made for advancing the date of the suit from 28 -2 -1968 to 24 -2 -1968 for the purpose of recording the compromise and disposing of the suit in terms thereof. In another petition, a prayer was made to expunge the name of Defendant No. 2 who was a subsequent purchaser of a portion of the suit lands horn the Plaintiff, so that the suit might be finally disposed of in terms of the compromise. The compromise as well as the two other petitions were put up before the trial Court in chambers as it was a clearance day. Although an order was recorded by the Court on 24 -2 -68 that the terms of the compromise were read over and explained to the parties who admitted the same to be correct, as a matter of fact, the terms of the compromise were never read over and explained to the Plaintiff. Before the suit could be disposed of in terms of the compromise on 24 -2 -1968, the advocate fur Defendant No. 2 having objected, the suit was not disposed of in terms of the compromise that day but was posted to 28 -2 -1968. This was all without the knowledge of the Plaintiff. On 28 -2 -1968, Defendant No. 2 filed a petition with a prayer to be transposed to the category of the Plaintiff. Thereafter, the suit was posted to 9 -3 -1968 for filing objection to Defendant No. 2 's petition. On 9 -3 -1968, the Plaintiff having come to learn that the compromise petition which had been filed on 24 -2 -1968 was not in terms of the compromise actually arrived at between the parties filed a petition objecting to the compromise. Defendant No. 1 filed an objection to the Plaintiff 's petition dated 9 -3 -1968 challenging all the allegations made therein.
An enquiry was made by the trial Court under Order 23, Rule 3, Code of Civil Procedure into the Plaintiff 's petition, dated 9 -3 -1968 and by the impugned order the trial Court rejected the Plaintiff 's petition, recorded the compromise as per the compromise petition dated 24 -2 -1968 and disposed of the suit in terms there of. Hence this appeal.
(2.) MR . D. Mohanty, learned Counsel for Appellant contends that in an enquiry under Order 23, Rule 3, Code of Civil Procedure the Court must be satisfied that there is an agreement between the parties and that the said agreement is lawful. On such satisfaction, the Court has to record the terms of the compromise and dispose of the suit accordingly. According to him the Plaintiff is a Purdanashin and illiterate lady knowing only to sign her own name. Under the law, one who wants to rely upon a document taken from such a lady must have to discharge the initial onus of proving that the said lady has executed the document after knowing and understanding its contents and that at the time of execution she had independent advice. Law gives this special protection to such a lady because of the fact that she is not expected to know like any other man the consequences of her own action. This onus has not been discharged in the present case, because there is no evidence worth the name that the contents of the compromise deed was read over and explained to the Plaintiff before she was made to sign it. Neither the scribe of the document nor the peshkar who is said to have read over and explained the contents of the document has been examined. Another peculiar feature which has been brought to my notice by Mr. Mohanty is that in the suit one Mr. K. Das was the advocate for the Plaintiff, but curiously on 24 -2 -1968, the day when the compromise was filed into Court, one Mr. R.K. Mohanty, a new advocate appeared for the Plaintiff and signed the petitions including the compromise petition said to have been filed on behalf of the Plaintiff. There is an endorsement in the hand f Mr. R.K. Mohanty in one of these petitions saying that as Mr. K. Das refused to sign the compromise petition. Mr. Mohanty appeared for the Plaintiff by filing a fresh vakalatnama. Under Rule 5(g) in Chapter IV at page 206 of the G.R. & C.O. (Civil), Vol. I, there is a provision that all advocate or a pleader proposing to file vakalatnama or an appearance in a suit, appeal or other proceedings, in which there is already an advocate or a pleader on record, shall not do so, unless such advocate or pleader is dead or has retired from the case or unless a written consent of such advocate or pleader is produced which consent will not be refused when his dues according to the written (sic) of his engagement signed by the client of his duly authorised agent, or in the absence of such terms in writing as aforesaid, the minimum fees according to the scale presented at pages 166 to 169 ante have been paid to him subject, however, to the discretion of the Court to pass orders to the contrary in either of the cases or when the consent of such advocate or pleader is refused, unless he obtains the permission of the Court. Admittedly, there has been no compliance of this provision in the present case. It is on account of this infirmity and suspicious circumstances, and in the absence of the evidence of the peshkar and the scribe of the compromise deed, Mr. D. Mohanty strenuously urges that the trial Court should have found that there has been no agreement between the parties as per the terms of the compromise deed filed in Court on 24 -2 -1968. The aforesaid contentions of Mr. Mohanty has sufficient force. The Plaintiff -Appellant who has examined herself as p.w. 1 has stated on oath that she is a purdanashin and illiterate lady knowing only to sign her own name. The signatures of the Plaintiff appearing in the compromise deed clearly indicate that she is not literate. This assertion of the Plaintiff has not been challenged in cross -examination nor any independent evidence has been adduced to the contrary on the side of Defendant. The inference therefore is inevitable that the Plaintiff is entitled to the protection available to a purdanashin and illiterate lady under the law. Admittedly, the scribe of the compromise deed who is said to be the clerk of Mr. R.K. Mohanty, the new advocate entering appearance for the Plaintiff on 24 -2 -1968 has not been examined. Although the order sheet dated 24 -2 -1968 shows that the terms of the compromise deed were read over to the parties who admitted them to be correct, the peskar who is said to be the person to have read over the compromise, deed has been withheld from the witness box. Mr. R.K. Mohanty who has signed the compromise deed on behalf of the Plaintiff on 24 -2 -1968 as d.w. 3 deposes as follows:
On 24 -2 -1968 Plaintiff brought a compromise petition to me. I went through the contents of the petition and asked the Plaintiff whether she understood the term and implication of the compromise to which she admitted. There after I asked her to get the compromise signed by Shri K. Das, advocate and if Shri Das refused to sign then to obtain his consent. Plaintiff reported to me that Shri Das refused to sign the compromise petition and to give his consent. Then I signed, the compromise petition. I do not remember if the Plaintiff signed the compromise petition in my presence. Kumuda Chandra Sahu my clerk scribed the compromise petition.
xx xx. I have not read the compromise.
The aforesaid evidence discloses that d.w. 3 never read over and explained the contents of the compromise deed to the Plaintiff and that the Plaintiff did not sign the same in his presence. It further appears from the deposition of the is witness that after his evidence was closed, he made a complaint to the Court to the effect that he never said in his deposition that he had not read the compromise. The learned Subordinate Judge himself has made the following endorsement in the deposition under the heading 'Opinion of Court'.
I remember that the witness has made the following statement in his cross -examination I have not read the compromise '.
No explanation is forthcoming as to why in view of the provisions of the G.R. & C.O. (Civil), Vol. I referred to above, neither the consent of Mr. K. Das nor the permission of the Court was obtained before d. w. 3 appeared for the Plaintiff and signed the compromise petition on her behalf. D.w. 3, a responsible advocate is supposed to know the rules. The admitted position that without the consent of the previous advocate Mr. K. Das and without an order from the Court d.w. 3 signed the compromise deed without reading it is a very suspicious conduct on his part which throws a great doubt on the defence case that the Plaintiff voluntarily executed the compromise deed after fully understanding the contents thereof. The observation of the trial Court about d.w. 3 that he being a responsible advocate is not expected to speak falsehood against the Plaintiff is not justified in view of the aforesaid suspicious conduct of the witness himself. Defendant No. 1 who has examined himself as d.w. 1 speaks of a draft said to have been prepared of the compromise deed which was finally filed in Court. The said draft is not produced and the writer of this document is also not examined. The plea of d.w. 1 that he cannot say what happened to the draft cannot be accepted. On the side of Defendant No. 1. reliance is placed upon Ex. A. an endorsement in the hand of d.w. 3 saying that be identified the Plaintiff before the Treasury Officer at the time of withdrawal of Rs. 1,500/ - by the Plaintiff. On the basis of this evidence and on the basis of the evidence of d.w. 3 to the effect that he was appearing for the Plaintiff before the District Registrar in the enquiry into the petition under Section 73 of the Indian Registration Act filed by Defendant No. 1, it is urged on behalf of the defence that d.w. 3 was known to the Plaintiff beforehand and cannot therefore be said to be a person belonging to the camp of Defendant No. 1. In my opinion, neither the evidence of d.w. 3 to the effect that he was appearing for the Plaintiff before the District Registrar nor Ex. A can be of any assistance to the Defendant No. 1. The question for consideration is as to whether there was an agreement between the parties as per the terms of the compromise deed filed into the Court. On this question, there is no reliable evidence, except a bald assertion by Defendant No. 1 to the effect that the contents to the compromise deed were read over and explained to the Plaintiff before her signatures were taken thereon and that she understood the contents there of. The withdrawal of Rs. 1,500/ - from the Treasury is accepted by the Plaintiff. According to her, as per the compromise arrived at between the parties, she returned the money to Defendant No. 1 who was to relinquish his claim to the property in suit. The Plaintiff asserts that after withdrawal of the money she returned it to Defendant No. 1; where as on the other hand, Defendant No. 1 says that he never received the money from the Plaintiff. The evidence led on either side on this point is not worthy of any credence. The fact of withdrawal of Rs. 1500/ - from the Treasury also fits into the Plaintiffs case of compromise. Therefore, the fact of withdrawal which is also consistent with the Plaintiff 's case cannot be relied upon by Defendant No. 1 to prove that there was a lawful compromise as alleged by him. In these state of evidence, I am of the view that the contentions of Mr. D. Mohanty must prevail. Accordingly, I hold that the Plaintiff who is entitled to the protection under the law as a purdanashin and illiterate lady had no independent advice when the compromise deed was taken from her nor the contents of the said document were read over and explained to her before she was made to sign it.
(3.) AN important question of law has been raised by Mr. R. Mohanty, learned Counsel for Defendant Respondent No. 1. It is said that according to the Plaintiff 's case the compromise deed cannot be accepted as the same has been obtained from her by practising fraud. According to Mr. R. Mohanty, a document which is challenged on the ground of fraud, misrepresentation or undue influence is a void able one and is not void. In a summary enquiry under Order 23 Rule 3, Code of Civil Procedure, a Court is only to see whether there has been an agreement between the parties, and if so, whether the terms of the said agreement are lawful. Once the Court is prima facie satisfied that there is a lawful agreement entered into between the parties bringing about a compromise of the suit, it is bound to record the same and to dispose of the suit accordingly. In support of his contention, reliance is placed by Mr. R. Mohanty on a decision reported in Hussain Yar Beg v. Radha Kishan : : A.I.R. 1935 All. 137. The following passage from the said decision may be quoted below:
The word 'lawful ' in Order 23 Rule 3 refers to agreements which in their very terms or nature are not unlawful and may therefore include agreements which are void able at the option of one of the parties thereto because they have been brought about by undue influence, coercion or fraud. Hence a party alleging fraud cannot be allowed to avoid the compromise admittedly executed by it in proceedings started by an application under Order 23 Rule 3.
That decision in its turn relied upon an earlier decision reported in Qadri Jahan Begam v. Fazal Ahmad : : A.I.R. 1928 All. 494, which lays down that the word 'lawful ' in Order 23 Rule 3, does not merely mean binding or enforceable; that a contract which is brought about either by undue influence, misrepresentation or fraud is under Section 19(a) , Contract Act, merely void able and not absolutely illegal or lawful and that the word 'lawful ' in Order 23 Rule 3 refers to agreements which in their very terms or nature are not 'unlawful ' and may therefore include agreements which are void able at the option of one of the parties thereto, because they have been brought about by undue influence, coercion or fraud. Mr. Mohanty also relies upon another decision reported in Harbans Singh v. Bawa Singh : : A.I.R. 1952 Cal. 73. The relevant passage from the said decision runs thus:
The term 'lawful agreement ' excluded not only unlawful agreements, the object or consideration for which was unlawful as defined in the Contract Act, but all agreements which were on the face of them void. The word 'lawful ' cannot be construed as wide enough to include an enquiry as to whether the agreement was void able or not. Fraud, undue influence or coercion, makes a contract void able and not void. Hence in an application under Order 23 Rule 3 the Court cannot consider the contract as not a lawful agreement of compromise because one party seeks to avoid it on the ground of fraud, undue influence or coercion.
The next decision relied upon by Mr. R. Mohanty is reported in Krishnan v. Rayarappan : : A.I.R. 1959 Ker. 130. The following passage from the said decision is quoted below:
The word 'lawful ' in Order 23 Rule 3 refers to agreements which in their very, terms or nature are not 'unlawful ' and may therefore include agreements which are void able at the option of one of the parties there for, because they have been brought about by undue influence, coercion or fraud. A contract which is brought about either by undue influence, misrepresentation or fraud is under Section 19(a). Contract Act, merely void able and not absolutely illegal or unlawful.
The decisions referred to above appear to me as not laying down the correct law. Order 23 Rule 3, Code of Civil Procedure speaks of an agreement between the parties to the suit. The Court has to record the compromise only if it is satisfied that there has been an adjustment of the suit by a lawful agreement. In recording a compromise, it has to consider as to whether there has been an agreement and whether the agreement is lawful. For coming to the conclusion as to whether there is an agreement, the Court has to consider the question whether the parties in fact have arrived at an agreement voluntarily. After having found that there has been an agreement, it has further to see as to whether the agreement is a lawful one. Therefore, where a compromise set up by one party is denied by the other, the Court has to decide whether as a fact the alleged agreement or compromise has been made and if it is so satisfied, it has to record the same. It is, therefore, clear that the Court is required to satisfy itself as to the existence of an agreement. Therefore, on an application to record a compromise, it has to consider specially where a plea of undue influence or fraud is raised whether the agreement is not vitiated on any ground, such as, illegality, fraud, misrepresentation, etc. The correctness of the earlier view of the Allahabad High Court reported in Husain Yar Beg v. Radha Kishan : : A.I.R. 1935 All. 137, has been doubted in the decision reported in Union of India v. Raghubir Saran : : A.I.R. 1957 All. 120. In another decision of the same High Court reported in Mst. Shujarat v. Mohd. Raza : : A.I.R. 1957 All. 450, the decision reported in Husain Yar Beg v. Radha Kishan : : A.I.R. 1935 All. 137, has been overruled. An earlier decision of the Bombay High Court reported in Western Electric Co. v. Kailas Chand : : A.I.R. 1940 Bom. 60, supporting the view taken in Husain Yar Beg v. Radha Kishan : : A.I.R. 1935 All. 137, has not been accepted in a later decision of the same High Court reported in Misrilal v. Sobhachand : : A.I.R. 1956 Bom. 569. The following passage from that decision reads thus:
The Court has power under Rule 3, where an agreement or compromise is denied, to decide whether as a fact, the alleged agreement or compromise was made, and if it is satisfied that it was made, to record it. When the Court is required to satisfy itself as to the existence of an agreement and is further required to satisfy itself that there is a lawful agreement adjusting the suit the Court must on an application to record compromise consider, especially where a plea of undue influence is raised, whether the agreement is not vitiated on any such ground as Illegality, fraud, misrepresentation, etc. Therefore, the contention that !he trial Judge while recording the compromise should not have recorded any finding on the question whether there was or was not any undue pressure or undue influence as set up by a party in his application is not acceptable.
The decision reported in Sourendra Nath v. Taru bala Dasi : : A.I.R. 1930 P.C. 158, supports my view which says that art agreement to compromise a suit must be established by general principles which govern the formation of contracts though there are special rules governing its enforcement by the Courts which arise out of its intrinsic nature. In other words, what the decision means is that before an agreement to compromise the suit is accepted, it must be found that there has been an agreement between the parties to the terms of the compromise by application of general principles governing the contracts Therefore here a patty to the alleged agreement denies the existence of an agreement on the plea that it never entered into It voluntarily, it is the duty of the Court before accepting the compromise to be satisfied as to whether the agreement set up has, as a matter of fact, been entered into by the party denying it on the ground of fraud, coercion or undue influence. This being the position in law, the contention of Mr. R. Mohanty that the question of undue influence or fraud pleaded by the Plaintiff regarding the alleged agreement cannot be gone into in an enquiry under Order 23 Rule 3, Code of Civil Procedure cannot be accepted.;