PATTU KUMARI BIBI W/O RAI DHANPAT SINGH NAWLAKHA Vs. NIRMAL KUMAR SINGH NAWLAKHA

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff-appellant, Pattu Kumari Bibi, against her adopted son, Nirmal Kumar Singh Nawlakha, in the Court of the Sub-ordinate Judge, Murshidabad, for a declaration that a certain adjustment made on compromise on 24th February 1934, in respect of a decree of 21 January 1924 in Suit No. 17 of 1924 between the same parties was fraudulent, illegal, ultra vires, inoperative and invalid and therefore not binding on the plaintiff-appellant. Nine issues were framed in the suit, of which the first four were decided in her favour. The other five were decided against her, with ihe reaulfc that the suit was dismissed with costs. Hence this appeal. Before dealing with the points raised in the appeal, it will be necessary to set out in some detail the nature of the decree of 21 January 1924 and of the adjustment of 24 February 1934. The plaintiff-appellant is the widow of a rich merchant and zamindar, Rai Dhanpat Bingh Nawlakha of Azimganj. On the death of her sons, after her husband's death, she took the defendant-respondent as an adopted son in 1918. Subsequently, disputes arose between the mother and the adopted son which in January 1924 they referred to arbitration. The arbitrators made an award and on 21 January 1924, in Suit No. 17 of that year, the Subordinate Judge of Murshidabad made a decree in terms of the award. Those terms, so far as they are relevant for the purposes of this case, were that the management of certain scheduled lands were to remain with the son, but out of the income thereof he was to pay the mother a sum of Rs. 13,000 a year in four instalments, namely Rs. 3000 in Ashar, 3000 in Aswin, 3000 in Pous, 4000 in Chaitra. It was further provided that as regards certain cash moneys which were in deposit in his kuti or firm in the mother's name, he was to pay her interest which, as to a sum of Rs. 34,000, would be calculated at 6 per cent, per year and, as to the balance, was fixed at the round figure of Rs. 1000 per month. Thus, under the head of interest she was to get in all a sum of Rs. 14,040 per year, or Rs. 1170 per month.

(2.) Some of the dues under the above decree having fallen into arrears, the plaintiff-appellant started Execution Case No. 73 of 1933 for realization of a sum of Rs. 48,334 from the defendant-respondent. This was in May 1933. On 24 February 1934 a joint petition was filed in Suit No. 17 of 1924 on behalf of both the parties stating that they had arrived at a compromise on certain terms (set out in the petition) and asking that the decree in the suit (of 21 January 1924) be adjusted accordingly and that the petition be treated as part of the decree and the award. On 5 March 1934 the Subordinate Judge passed an order allowing the petition. The terms set out in the petition were briefly these: (a) The arrears of Rs. 48,334 mentioned in the execution case plus certain additional arrears of Rs. 22,336 that had accrued since, making a total of Rs. 70,700 were dealt with thus: (i) Nirmal Kumar paid down in cash Rs. 10,000. (ii) He was to pay a further sum of Rs. 15,000 spread over three years from Chaitra 1340 B.S. to Magh 1343 B.S. both inclusive, in 4 quarterly instalments, Chaitra Rs. 2500, Ashar 800, Aswin 800, Magh 900 - Rs. 5000. (iii) For the balance of Rs. 45,700 he was to transfer certain scheduled lands to his mother with full rights of alienation and she was simultaneously to lease them back to him permanently but without any power of alienation and on a nominal annual rent of Re. 1. A detailed procedure for the execution and exchange of, the necessary transfer deeds was also laid down. As soon as the conveyance to the mother was ready for execution and registration, Nirmal Kumar was to give her seven days notice of the date appointed by him for the execution and registration of the lease and both deeds would be registered together. If he failed to execute the conveyance as stipulated, the entire compromise was to be treated as null and void and the original decree was to be liable to be executed in full; if on the other hand the mother defaulted, the son was to be under no obligation to convey the property to her, and the rest of the compromise would stand. On this last point there is a slight error of translation in the document, Ex. I, printed at pp. 12-18 of Part II of the paper book in Appeal No. 82 of 1938. In para. 3 of the document in lines 28, 29 relating to what is to happen in the event of the mother's default, the words "nor shall this adjustment or compromise being considered null and void stand" should be "nor shall this solenama be considered null and void."

(3.) The right of the mother to get Rs. 13,000 annually as provided in the original decree was maintained but in slightly accelerated instalments. It will be remembered that under the original decree this sum was pay. able in four instalments, namely Secs.3000 in each of the months of Ashar, Aswin and Pous and Rs. 4000 in Chaitra. Under the compromise the entire sum of Rs. 13,000 became payable in 12 monthly instalments of Rs. 1000 each, except for the Magh and Phalgun, instalments which were fixed at Rs. 1500 each. It was further provided in the terms that if Nirmal Kumar made default in payment of four consecutive instalments, the mother would be entitled to appoint a receiver of the immovable properties mentioned in the schedule to the original award. The mother relinquished her claim to the entire interest of Rs. 1170 per month due under the original decree, with a proviso that the claim would revive from the date of the auction sale, if the immovable properties mentioned in the schedule to the original award were sold for arrears of revenue or rent. On the same day on which the aforesaid joint petition was filed in the parent suit, namely 24 February 1934, Nirmal Kumar also filed a petition in the execution case mentioning the aforesaid compromise and praying for disposal of the case according to Order 21, Rule 2, Civil P.C. The pleader for the other side, Gouri Prasad Boy, endorsed on this petition the words "No objection" and signed it; and on that very day the execution case was disposed of "on full satisfaction" according" to the petition. The suit out of which this appeal has arisen was, as already mentioned, for a declaration that "the adjustment on compromise made on 24 February 1934, in Suit No. 17 of 1924" was fraudulent, illegal, ultra vires, etc. The language of the plaint on this point is alightly ambiguous. The use of the words "illegal" and "ultra vires" would appear to indicate that the declaration sought was of the invalidity of the Court's order on the petition of compromise rather than of the compromise itself. On the other hand, the use of the word "fraudulent" and the particular date mentioned (24 February 1934) suggest that the prayer was directed, not against the Court's order (which as regards Suit No. 17 of 1924 was passed on 5 March 1934) but against the petition of compromise itself. We shall assume for the purposes of this appeal that the plaintiff meant to attack both, the petition of compromise as "fraudulent" and the Court's orders thereon as "illegal" and "ultra vires."