Decided on August 12,1954

MALAN, L.RAM CHAND Respondents


Falshaw, J. - (1.) The respondent in this Letters Patent Appeal Mst. Malan, instituted a suit at Amritsar in August 1952 against seven defendants for possession by partition of one-third of certain property and for rendition of accounts regarding the property for the two years preceding the suit. She claimed that the property in suit was joint family property which after the death of her hushand. Ram Chand, had been partitioned among themselves by his two sons, who were her step-sons. It is not clear from the plaint when Ram Chand died or when his sons died but evidently these events took place some years ago, and the defendants were the heirs of the two sons, and the plaintiff claimed that she was entitled to one-third of the property. The suit was contested by the defendants and after issues had been framed in November 1952, 23-2-1953 was fixed for evidence. On that date two counsel representing all the defendants made a statement which reads- "We have compromised with the plaintiff in the following manner, viz., we will pay Rs. 42/- per month as maintenance to her with effect from 8-8-1952 for the duration of her lifetime. If we fail to pay the aforesaid amount of maintenance it will form a charge on house No. 603/8 situate in Chouk Nimak Mandi. The aforesaid maintenance also includes compensation in respect of the right of residence. Defendants 1 to 4 should be jointly and severally liable for the payment of maintenance. In execution of this decree the plaintiff shall be entitled to recover her maintenance." In the presence of the plaintiff herself her counsel made the statement "I am in agreement with the statements of Shri Hans Raj and Shri Kishan Chand. Orders may be passed accordingly and costs awarded." The plaintiff's thumb-impress ion as well as the signature of her counsel were obtained on the statement, and as one of the defendants was a minor the sanction of the Court was also obtained to the compromise as being in the interests of the minor defendant, and the Court finally passed an order giving effect to the compromise based on the statements of the parties except that they were left to bear their own costs.
(2.) The plaintiff filed an appeal in this Court supported by an affidavit of the plaintiff in which she practically alleged that she had been tricked into the compromise, the terms of which had not been explained to her, and to which she would never have agreed if she had understood them in view of the value of the property claimed by her, of which she alleged that her share amounted to Rs. 40,000/-. The legal point, however, was also raised in the appeal that the compromise did not relate to the subject-matter of the suit.
(3.) The learned Single Judge before whom the appeal came, without indicating whether he believed the allegations contained in the plaintiff's affidavit or not, accepted the appeal and ordered that the suit should be decided on the merits on the ground that the compromise did not amount to a lawful adjustment of the parties' rights in the suit. In doing so he overruled two objections raised on behalf of the respondents, firstly that the appeal had not been properly filed and secondly that no appeal lay against the order of lower Court.;

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