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 21st 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 21st January 1924 and of the adjustment of 24th 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 21st 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 24th 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 21st January 1924) be adjusted accordingly and that the petition be treated as part of the decree and the award. On 5th 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 Sections 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 24th 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 24th 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 (24th 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 5th 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."
4. The plaintiff's case is set out in paras. 3 and 4 of plaint (there are two paragraphs in the plaint each of which is No. 4; both are relevant). In para. 3 she states that she was not aware of the defendant's prayer for final disposal of Execution Case No. 73 of 1933 on the basis of the compromise and that she did not instruct any pleader, nor authorize anybody to instruct any pleader, to consent to that prayer. She further states that her tadbirkarak or agent, Soubhagya Chand, was dishonestly induced by the defendant to mislead her pleader and thereby procure the endorsement of "No objection" on the defendant's petition for final disposal. As regards Suit No. 17 of 1924 she states in the first para. 4 of the plaint that the adjustment petition was filed without her knowledge or consent. She is a pardanashin lady and the defendant, it is said, fraudulently caused an adjustment petition to be filed by her agent, Soubhagya Chand. In the second para. 4 of the plaint she goes on to say that by this unauthorized act of Soubhagya Chand she has been deprived of a large sum of money due to her as interest. In fact, she continues, Soubhagya Chand had no real power of attorney to act for her. "The defendant fraudulently got the said ammuktearnama also executed in favour of the said Soubhagya Chand." The terms of the power were not read over to her, she received no independent instructions about its execution, it is not binding upon her, and Soubhagya Chand had no right to enter into any adjustment or compromise on her behalf. The adjustment of the decree for compromise is also attacked as illegal and ultra vires, inasmuch as it has substituted a new decree in place of the original decree. She first came to know of the fraud on 30fch January 1937. These allegations of the plaintiff are traversed in para. 9 of the written statement of the defendant. Rriefly, the defence position is that the plaintiff was fully aware of the compromise and that the petition of compromise was filed in Court with her knowledge and on proper instructions given by her to her pleaders and her ammuktear Soubhagya Chand. The defendant further points out that in a subsequent proceeding, namely Execution Case No. 230 of 1936, the fact of the adjustment made in Execution Case No. 73 of 1933 was admitted by the plaintiff. On these pleadings three main issues have been framed, namely Nos. 6, 7 and 8, mentioned in the Subordinate Judge's judgment. These issues are in the following terms:
Issue 6: Was the petition of adjustment in Suit No. 17 of 1924 O.C. filed without the knowledge of the plaintiff and fraudulently 1 Issue 7: Was it signed and filed by the plaintiff's pleader without any authority? Was the pleader induced to sign and file it by fraud or misrepresentation? Issue 8: Was the adjustment improperly recorded? Is the order of recording the adjustment ultra vires and invalid?
5. We shall deal first with Issues 6 and 7. They turn largely on questions of fact. On the side of the plaintiff there have been examined the plaintiff herself, P.W. 2, Lokendra Nath Roy (her latest pleader in the suit), P.W. 3, Kharag Sing Kuthari (a son-in-law of the plaintiff), and P.W. 4 Dharam Chand Boyed (brother of the plaintiff). For the defence there have been examined besides the defendant himself, D.W. 1 Pramatha Nath Eoy (defendant's secretary), D.W. 2 Keshri Sing Boyed (defendant's cashier), D.W. 3 Pratap Singh Boyed (nephew of the plaintiff), D.W. 4 Gouri Prasad Roy (at one time a pleader for the plaintiff) and D.W. 5 Jitendra Nath Bannerji (another pleader for the plaintiff). The defendant's account of the circum. stances that led up to the compromise in Execution Case No. 73 of 1933 is briefly this: when the execution proceedings had gone on for eight or nine months (they had been started in May 1933) Dhannu Lal, who was one of the arbitrators in the original award of 1924 sent word to him asking why he was quarrelling. Defendant replied that owing to the condition of his business it was not possible for him to pay the amounts mentioned the award and that it would be much better if the mattser could be compromised. This appears to have been communicated in due course to plaintiff, and on 22nd January 1934 defendant received a letter, Ex. E(8), from Soubhagya Chand, who besides being the plaintiff's agent was also one of her sons-in-law. The whole of this letter is very important and its terms may be set out here in full:
This latter is written by Soubhagya Chand Sett from Calcutta who sends greetings to Babu Saheb Nirmal Kumar Singhji Nowlakha of Azimganj. Received your kind letter. The day before yesterday Johar Mullji cama and paid the sum of Rs. 2000 (rupees two thousand). Now kindly come here immediately and see your mother and settle the matter. The 27th is the date fixed for the suit in respect of which I have already written to you. And now under any circumstances further adjournment cannot be taken. Please come here before the 25th with money, otherwise I shall start from here on the night of the 26th for the purpose of con-ducting the case and thereafter you cannot blame me. Accept blessings from the respected mother-in-law and also the blessings of your sister and accept obeisance of the children. Inform of your welfare and convey my blessings to the children.
Sd./- Soubhagya Chand Sett.
6. The defendant states' that on receipt of this letter he went to Calcutta and there met Soubhagya Chand at his mother's place. The terms were discussed with his mother for three or four days and she got a draft of the terms prepared. This was in Calcutta. The draft was then brought by Soubhagya Chand to Berhampur where the execution proceedings were pending. Then Soubhagya Chand and Dharam Chand brought a solenama or petition of compromise to the defendant at Azimganj for his. signature. Defendant compared the solenama with the draft brought from Calcutta; they were in the same; terms Defendant then signed the solenama and paid Soubhagya Chand Rs. 10,000. Soubhagya Chand also signed the solenama which was then filed in Court. At the time' when the terms were discussed with the plaintiff in Calcutta there were present, on some days, Dhannu Lal and on some days, Keshri Singh; Jalim Singh also used to be present sometimes and once or twice Soubhagya Chand also. At the time when the terms were finally settled there were present, besides the plaintiff and the defendant, Keshri Singh and Jalim Singh. Of the persons mentioned above, Dnannu Lal and Jalim Singh are dead and Soubhagya. Chand has for obvious reasons not been examined by either side. Keshri Singh, who is the defendant's cashier, has been examined on behalf of the defence. He is D.W. 2. He states that he brought the defendant to Calcutta for a settlement of his differences with the plaintiff. Defendant, witness, and Dhannu Lal saw the plaintiff together in Calcutta and upon defendant's request backed by Dhannu Lal the plaintiff agreed to give up her claim of Rs. 14,040 as interest for ever and wanted Rs. 25,000 to be paid in cash. She further desired to have a conveyance of certain properties for the balance, agreeing to settle them again with the defendant on an annual rent of Re. 1. Defendant said he was unable to pay Rs. 25,000 immediately in cash and offered to pay Rupees. 10,000 down and the balance of Rs. 15,000' in instalments. The plaintiff agreed to this. It was also agreed between the parties that the annual payment of Rs. 13,000 to the plaintiff should be made in monthly instalments. The plaintiff also wanted that in the event of the defendant's zamindary being sold away the sum of Rs. 14,040' remitted by her would have to be paid. This in brief is D.W. 2's evidence.
7. It will be seen that it substantially bears out the defendant's own account, the terms described by the witness being substantially those that have been embodied in the solenama. One slight discrepancy needs-notice, as it has been commented upon by the learned advocate appearing for the plaintiff. Keshri Singh goes on to state in his cross-examination that during the discussions between the defendant and the plaintiff in Calcutta nothing was mention, ed as to what would happen if the convey, ance was not executed. In the solenama filed in Court, however, there is provision for this contingency; if the conveyance was not executed by the defendant as stipulated in the deed, the entire compromise was to stand annulled. From this, it has been sought to be argued that whatever may have been discussed between the parties, the actual terms of the solenama, which was subsequently filed in Court, were not discussed and the plaintiff, therefore, cannot be said to have understood all that was in the solenama. We think that the foundation is much too slight for any such inference. "Witness Keshri Singh in his evidence is speaking of negotiations which took place nearly four years before and it is quite possible that he may have forgotten a detail here or there of what was discussed during many days. The fact that there were prolonged negotiations for three or four days with the plaintiff herself is proved by this witness and he also states most of the terms agreed upon. The fact that Soubhagya Chand brought with him from Calcutta a written record of the terms arranged is proved not only by the defendant himself but also by witness Pramoth Nath Roy, D.W. 1 and Gouri Prasad Roy, D.W. 4. They both state that Soubhagya Chand brought with him a note of the terms, that the plaintiff's advocate Babu Kali Krishna Banerji drafted the solenama with reference to that note and that defendant's pleader Shyama Pada Eoy prepared a fair copy of the draft for filing in Court. There is no ground whatever for disbelieving these witnesses and they confirm defendant's statement that the solenama put into Court merely embodied the terms already contained in the draft or note brought by Soubhagya Chand. The defendant has further stated that the draft was actually shown to him by his mother before he left Calcutta on the conclusion of the discussion between him and her. The plaintiff of course denies all knowledge of the negotiations which, according to the defence, preceded the filing of the solenama. She says in her evidence that she first learnt of the solenama in the preceding Magh (January/ February 1937) from her pleader Loken Babu, who is P.W. 2. She says that she enquired about the execution case from him in the latter part of January 1937, and that when he told her of the solenama she was surprised and said she knew nothing about it or its terms. Ultimately therefore we have only plaintiff's own denial to set against the evidence of the defendant and the other defence witnesses that we have mentioned. We have no hesitation in preferring the latter to the former, for the following reasons:
8. The fact that the defendant visited Calcutta in order to have matters settled is rendered probable by Soubhagya Chand's letter of 22nd January 1934, Ex. B(8), written to the defendant from Calcutta in which Soubhagya Chand says, amongst other things, "Now kindly come here and see your mother and settle the matter." We have already quoted the whole of this letter; there is nothing in it which suggests that the writer was colluding with the defendant against the plaintiff. Indeed, the warning to the defendant that unless he came before the 25th the writer would have to prosecute the suit and "thereafter you cannot blame me" points against any such collusion. We must, in this connexion, mention another important piece of evidence. On 12th November 1937, in the course of her examination on commission, plaintiff was asked on what terms Soubhagya Chand and Nirmal Kumar were and she replied: "Now they are on good terms. They have been on good terms since a short time - say one year." As they could not possibly collude against the plaintiff before they were on good terms with each other it follows from this statement that the letter of 22nd January 1934 must have been written long before there could be any collusion. Some comment has been made by the learned advocate for the plaintiff, appellant as regards the payment of Rs. 2000 mentioned in the letter and the suggestion has been thrown out that the money was probably a bribe to Soubhagya Chand. There is no basis at all for this suggestion. When the plaintiff was specifically questioned whether she had received Rs. 2000 from Nirmal Kumar in Pous or Magh 1340 B.S. (January 1934) through Joharmullji she could only say "I do not remember." It is incredible that she did not keep accounts of the large sums of money which she was receiving from time to time from Nirmal Kumar and was not in a position to answer the question more definitely than by saying that she did not remember. We are not satisfied that she did not receive the aforesaid sum of Rs. 2000 or that the defendant-respondent, Nirmal Kumar, intended the sum as a bribe to Soubhagya Chand. It is significant that the payments of Rs. 2500 ana Rs. 1000 set out in Ex. F and Ex. E CO whose receipt the plaintiff had to admit, were also made through Joharmullji. In all the circumstances of the case we see no reason for refusing to accept the letter of 22nd January 1934 at its face value. It is clear from its terms that it contained an urgent invitation to the defendant to go and settle matters with his mother and it therefore supports his version that he actually went to Calcutta and negotiated with her. There is further support for this version in Ex. C. This is a certified copy of the petition filed in the Subordinate Judge's Court on 27th January 1934, signed on behalf of the plaintiff by her advocate, Kali Krishna Banerji and on behalf of the defendant by his pleader Shyama Pada Roy. The petition was filed in connexion with Execution Case No. 73 of 1933 and the objection preferred therein. In this joint petition the parties stated that negotiations for settlement by compromise were going on between them and had advanced a long way. They accordingly prayed that the case be adjourned for two weeks for a compromise. Ex. 5(b) which has been printed in Part II of the connected Appeal No. 50 of 1937 shows that upon this joint petition the Court adjourned the case to 10th February 1934. It is therefore clear that negotiations were in progress at about this time as stated in the defendant's version.
9. Babu Gouri Prasad Boy, who was at one time a pleader for the plaintiff, has given evidence in this case for the defence. He is D.W.
4. He states that in the beginning of the year 1934 he was the plaintiff's pleader in an income-tax case. He filed a petition on her behalf that as she had no income in 1339 B.S. (1932.33) she could not be assessed to tax. In support of that petition he filed on her behalf a certified copy of the solenama of' which she now denies all knowledge. The witness further states that the vakalatnama which he filed in the Income-tax office bore the plaintiff's signature in Hindi and was delivered to him by Dharam Chand, who is her brother. As the result of the petition in the income-tax case the plaintiff was not assessed to income-tax. Ex. C shows that on the 9th of March 1934 Upendra Nath Banerji, who is pleader Gouri Prasad Roy's clerk, applied for a certified copy of the solenama. It thus bears out the pleader's statement that a certified copy of the document was filed in the income-tax case. We see no reason for disbelieving the pleader in question. The circumstances in which, and the precise purpose for which, the solenama was filed in that case might have been elucidated by production of the relevant documents from the Income-tax office. As these documents are confidential and the defendant could not obtain copies himself he offered to pay the plaintiff all necessary costs if she would take out the copies. The offer was not accepted, with the result that we have to rely on the pleader's evidence for the purpose of ascertaining what took place in the course of the income-tax proceedings. As we have already said, we see no reason for disbelieving him. An attempt was made on behalf of the appellant, on the strength of the letter Ex. E (5) which is a letter written on 27th May 1934 by the plaintiff to the defendant, to suggest that she left him to conduct the income-tax proceedings for her, but judging from the date of the letter (27th May 1934) we doubt very much whether this particular letter had any reference to the assessment for 1932.33 in respect of which the pleader Gouri Prasad Roy appeared for the plaintiff. As already remarked, the plaintiff had it in her power to obtain certified copies of the relevant papers from the Income-tax office to prove exactly what took place; not having produced those papers, even after the defendant had offered; to pay for copies, she cannot ask us to disbelieve the pleader. There is thus evidence to show that she was not only aware of the solenama but actually used it for the purpose of obtaining a remission of income-tax. It will be remembered that one of the terms of the solenama was that the defendant was to execute a conveyance of certain lands to the plaintiff, who was simultaneously to lease them back to the defendant. By way of prescribing the procedure for the exchange of these documents the solenama provided that the defendant should serve a notice oh the plaintiff as soon as the conveyance was ready, mentioning a date for the stipulated exchange. It seems to us that these particular provisions by their very nature point against any fraud. Had there been any intention to defraud the plaintiff, those who were perpetrating the fraud would not have provided for a procedure which was bound to bring the fraud to the notice of the plaintiff almost at once. We say" almost at once," because the solenama was executed on 24th February 1934, and the stipulated notice had to be served upon the plaintiff before the end of of the following Chaitra, i.e. before the middle of April 1934. That a notice of this kind was actually served on the plaintiff admits of no doubt. Ex. D is a certified copy of the notice bearing the signature of the defendant's pleader, Shyama Pada Roy. The notice was dated 29th March 1934, and a copy of it was filed in the Subordinate Judge's Court on the same day. It was addressed to the plaintiff at her Lake Road residence in Calcutta. It mentioned 10th April 1934 as the date appointed for the simultaneous registration of the conveyance and the lease and it warned the plaintiff that if she defaulted in the execution and registration of the lease the defendant would not be bound to execute and register the conveyance. The plaintiff has admitted having signed the postal acknowledgment receipt for the registered letter by which the notice was sent to her. She has further admitted that she has the letter with her for two or three days, but she makes the amazing statement that she had no curiosity at all to know where the letter came from or what it contained. She says she handed over the letter to Soubhagya Chand and said to him "some letter has come, take it with you." We do not believe this statement. She must have informed herself of the contents of the notice. The postal acknowledgment receipt bears the date 31st March 1934. Thus, this part of the evidence in the case shows that the solenama or compromise was a bona fide transaction and was actually acted upon in respect of one of its important terms, namely the service of a notice appointing a date for the exchange of the stipulated document.
10. We now come to certain payments which also indicate that the solenama was acted upon by the parties. Exs. F and F(1) are two receipts granted by the plaintiff. They both bear her signature. The first of them is dated 15th April 1934, and is for a sum of Rs. 2500 received from Nirmal Kumar "in respect of the kist of the month of Chaitra." The second is dated 23rd April 1934, and is for a sum of Rs. 1000 received from Nirmal Kumar " in respect of the kist of the month of Baisakh." The significance of these payments is that they can only be related to the solenama. Under the original award of January 1924 the Chaitra kist was Rs. 4000. It was only under the solenama that there was a Chaitra kist of Rs. 2500. The learned advocate for the plaintiff has sought to get over this difficulty by suggesting that possibly the payment referred to in Ex. P was towards the Chaitra kist of Rs. 4000 mentioned in the original award. That is to say, that it was a part payment of that kist; but this is not the natural meaning of the words in the receipt. Moreover, if the sum was intended as a part payment, there would have remained Rs. 1500 still to be paid in respect of the Chaitra kist; but we find that-only eight days later, another sum of Rs. 1000 whose receipt is acknowledged in Ex. E(1), was credited, not against any balance of the Chaitra kist but against the Baisakh kist. It is therefore clear that Ex. F cannot be explained away as relat. ing to a part payment of the Chaitra kist of the original arbitration award. It can only be related to the Chaitra kist of Rs; 2500 mentioned in the solenama. Similarly, under the original award there was no specific Baisakh kist of Rs. 1000. We only find such a specific kist in para. 6 of the solenama, which relates to the sum of Rs. 13,000 annually payable to the plaintiff and prescribes the monthly instalments in which it is to be paid, the Baisakh instalment being fixed at Rs. 1000. Here again, an ingenious attempt has been made on behalf of the plaintiff-appellant to connect the payment with para. 6, not of the solenama, but of the original award, under which a sum of Rs. 1000 was payable to her as monthly interest on a portion of the cash deposit standing in her name. There is however the same difficulty as before: if we hold that these two payments of Rupees 2500 and Rs. 1000 were made under the original award, they should both have been towards the Chaitra kist of Rs. 4000 mentioned in para. 5 of the award. It is nobody's case that she received any further payments in the eight days' interval between these two. There is a further difficulty in that the total monthly instalment on account of interest under para. 6 of the original award was not Rs. 1000 but Rs. 1170 (see, for example, para. 7 of the plain, tiff's execution petition, Ex. A in Execution Case No. 230 of 1936). In our opinion, the payments can only be explained on the footing that they were made under the solenama; they thus furnish additional evidence that the solenama was being acted upon by both parties at this time.
11. Another important piece of evidence which goes to show that the plaintiff-appellant was aware of the solenama is the petition that was filed on her behalf in Execution Case No. 230 of 1936. This petition, Ex. A, was filed in the Subordinate Judge's Court on 19th September 1936, and purported to be for the execution of the decree of 21st January 1934. Para. 11 of the petition sets out the mode in which the assistance, of the Court was sought:
The judgment-debtor having failed to execute the sale deed and do other acts in accordance with the terms of settlement arrived at in the former execution case, the said settlement has stood cancelled and there has been cause for execution of decree.
12. It is clear therefore that if this petition was filed with the knowledge of the plaintiff, it completely disproves the case which she now seeks to make out that she was not aware of the solenama until some time in January 1937. That the petition was filed with her knowledge has been established by the evidence produced. Dharam Chand, brother of the plaintiff and a witness on her side (P.W. 4), has admitted that it was according to her instructions that he asked her advocate Kali Krishna Banerji to file the execution case. The contents of the petition were verified by Dharam Chand himself, who, by an affidavit, filed in Court on the same date, (19th September 1936), stated that he is a brother of the plaintiff lady and, having knowledge of and being fully conversant with the facts, was a fit person to verify the execution petition. The petition bears the signature of the plaintiff's admitted advocate, Kali Krishna Banerji, who accepted the vakalatnama from Dharam Chand, Ex. K(1). These facts prove that both the plaintiff and her brother, Dharam Chand, were fully aware of the solenama. The execution petition of 19th September 1936 proceeded on the basis that the sale deed stipulated in the solenama not having been executed, the original decree of January 1924 became liable to be executed in full. In answer to this, on 18th December 1936, the defendant's pleader served a notice upon the plaintiff's pleader drawing his attention to certain documents. Amongst these documents were the notice sent to the plaintiff by registered post on 29th March 1934 and her acknowledgment of the notice, dated 31st March 1934. As the result, on 3rd February 1937, the petitioner withdrew the Execution Case (No. 230 of 1936) alleging that the entries in the "prayer" column thereof had not been according to her instructions and were due to her pleader's inadvertence. The circumstances in which the execution petition was filed have already been detailed and we have no doubt what, ever that there was inadvertence at all.
13. Against this mass of evidence in favour of the
defendant-respondent's version there is only one circumstance of any importance that needs consideration. It has been contended that the terms of the solenama are so one sided and unfavourable to the plaintiff-appellant that she cannot possibly have consented to them. Now, it is perfectly true that by the solenama she relinquished a good deal that was due to her under the original award: not only did she give up her claim to a good portion of the arrears but she also gave up her claim to the recurring monthly interest of Rs. 1170 due to her under para. 6 of the award. But we have to consider the circumstances under which the relinquishment took place. Admittedly, payments under the original award were greatly in arrear. Clearly, therefore, the defendant was finding it difficult to make these payments. His business was deteriorating, The parties were related as mother and son. Even after the relinquishment, she would still be entitled to get Rs. 13,000 per year, which is sufficient for a widow to live in comfort. In these circumstances it does not seem to us at all unnatural that upon the son's importunity she agreed to give up her claim to the recurring interest and also to a portion of the past arrears. The rather peculiar transaction by which, in return for the wiping out of the past arrears, the defendant was to execute a conveyance in favour of the plaintiff in respect of the family dwelling house and certain adjoining lands which she was to lease back to him simultaneously, has also been explained by the defendant in his evidence. It was really a device to prevent prospective creditors seizing the properties: had he remained their owner, creditors could have had them attached and sold in execution, but if he became a mere lessee with no powers of alienation and with no power to his creditors to put them to sale in execution, they might be saved. The double transfer provided for in the solenama had, therefore, the merit not only of giving the plaintiff something, however nominal, for her relinquishment of certain arrear payments, but also of serving at the same time to protect the dwelling house and lands in question from being sold in execution of the prospective debts of a dwindling business, to the ultimate detriment of the defendant's children. We must also remember that the solenama specifically provided for the appointment of a receiver in the event of the defendant defaulting in the payment of the new instalments: this was clearly a term to the advantage of the plaintiff and a term which did not occur in the original award.
14. Considering the solenama as a whole, we find nothing in its provisions which cannot be explained as the natural result of the circumstances of the time and the relationship between the parties; there is nothing in them to indicate fraud. We find on the evidence that the execution of the document was preceded by direct negotiations between the plaintiff herself and the defendant, that the plaintiff caused the terms which were agreed between them to be reduced to writing in the form of a note or draft, and that the solenama was prepared with reference to and in accordance with the terms of this note or draft. It follows that in our view the transaction embodied in the solenama was "the free and intelligent act" of the plaintiff, so as to satisfy the criterion laid down by the Privy Council in Farid-un-nisa v. Mukhtar Ahmad . It is, therefore,
binding upon her although, doubtless at the instance of certain interested parties, she is now seeking to repudiate it. We have no hesitation in finding in favour of the defendant-respondent on issues 6 and 7. Before turning to issue 8, we ought to say a few words about the power-of-attorney, dated 26th April 1933, purporting to have been executed by the plaintiff in favour of Soubhagya Chand. In view of our findings on issues 6 and 7 and particularly of the finding that the solenama embodied the result of direct negotiations between the plaintiff herself and the defendant, it is, strictly speaking immaterial whether power-of-attorney by which Soubhagya Chand signed the solenama on her behalf was good or bad. Nevertheless, since the issue has been raised, we think it necessary to record bur decision on the point. The learned Subordinate Judge has, after considering the evidence very fully, come to the conclusion that the plaintiff executed the power-of-attorney in favour of Soubhagya Chand with full knowledge and understanding of the terms and that there was no deception upon her in that connexion. This finding, so far as it negatives fraud, has not been challenged before us during the hearing of the appeal. Indeed, as we have already pointed out, according to the plaintiff herself, "the good terms" between Soubhagya Chand and the defendant began only about a year before 1937, so that the power-of-attorney of April 1933, could not have been the result of any collusion between them. It is not necessary to repeat the grounds upon which the Subordinate Judge has arrived at his finding on this part of the case; we think it is sufficient to state that we accept that finding.
15. It was however contended before us on behalf of the plaintiff-appellant that the Subordinate Judge was wrong in admit, ting, as evidence of the contents of the power-of-attorney in question, Ex. G which purports, to be a true copy of an entry in the register of powers-of-attorney kept in the Registration Office. We consider that the copy was properly admitted. The register of powers-of-attorney is maintained by the Registering Officer under certain rules made by the Inspector-General of Registration under Section 69, Registration Act, 1908. Every entry in that register is therefore "a public document" within the meaning of Section 74(1)(iii), Evidence Act, being "a document forming the act or record of the act" "of an executive public officer in the discharge of a statutory duty imposed upon him. It follows that a true copy of the entry (which by virtue of Section 76, Evidence Act, is a certified copy within the meaning of Section 63(1)) is admissible as proof of the original entry by virtue of Section 65(e), Evidence Act. How far the original entry itself is good evidence of the contents of the power-of-attorney is a slightly different question. It is undoubtedly relevant under Section 35, Evidence Act. The weight to be attached to the entry depends upon the accuracy of the abstract of the power which appears to be the sixth column of the entry. According to this abstract the power was a general power-of-attorney authorizing the agent, inter alia,
to adjust, compromise and submit any account, debts, claims, demands, and disputes touching any matters which now subsist or may arise between the principal and Nirmal Kumar Singh Nawalakha;
to abandon or compromise any suit, actions or proceedings if the attorney thinks necessary; to appoint advocates, attorneys, vakils, solicitors pleaders, muktears, revenue agents
and so forth. This abstract is as already mentioned made by the Sub-Registrar in the discharge of his official duty and we think that the Court is entitled to presume its correctness in accordance with the usual presumption that official acts are regularly performed. We have therefore no doubt that Ex. G was properly admitted and properly given full weight. The original power, it may be remarked, was called for by the defendant from the plaintiff, but was not produced, presumably because it was not with her; even so, secondary evidence is admissible under Section 65(e), Evidence Act. It follows that even if we had not found (as in fact we have) that the terms of the solenama were discussed and agreed with the plaintiff direct, the execution of the solenama by Soubhagya Chand on the strength of his power-of-attorney would have been sufficient to make its terms binding upon his principal. We have already had occasion to point out that there is no basis for the suggestion that Soubhagya Chand had been bribed by the defendant.
16. We now turn to issue 8: "Was the adjustment improperly recorded? Is the order of recording the adjustment ultra vires and invalid?" To decide this question we must revert for a moment to the terms of the solenama. On the date on which the solenama was filed in Court (24th February 1934) the plaintiff-appellant had a claim under the original decree of January 1934 to the following sums immediate or prospective: (a) Past arrears up to Chaitra 1340 B.S., Rs. 70,700. (b) Future payments: (i) Rs. 13,000 per year in four instalments out of the income of certain landed properties, (ii) Rs. 1170 per month as interest on certain deposits. By virtue of the solenama, (a) was discharged by an immediate payment of Rs. 10,000, a prospective payment of another Rs. 15,000 in certain instalments during the next three years and subject to certain conditions the conveyance of certain lands to the plaintiff; (b)(i) was left intact except that the instalments were made monthly and provision was made for the appointment of a receiver in the event of continuous default; (b)(ii) was remitted until the happening of a specified but uncertain event, viz. an auction sale for arrears of revenue or rent. It is clear therefore that the solenama had the effect of extinguishing in part the plaintiff's claim under the original decree and to that extent it was in our opinion an "adjustment" of the decree within the meaning of Order 21, Rule 2(1). But even other-wise, the matter appears to us to be covered by the decision of their Lordships of the Judicial Committee of the Privy Council in the recent case in Oudh Commercial Bank Ltd. v. Thakurain Bind Basni Kuer . In that case their Lordships pointed out (p. 510,
loc cit) that the Civil Procedure Code
contains no general restriction of the parties' liberty of contract with reference to their rights and obligations under the decree and that if they do contract upon terms which have reference to and affect the execution, discharge, or satisfaction of the decree, the provisions of Rule 47 involve that questions relating to such terras may fall to be determined by the executing Court.
17. They further observed (p. 511 loc cit) that if an agreement is
intended to govern the liability of the debtor under the decree and to have effect upon the time or manner of its enforcement, it is a matter to be dealt with under Section 47.
18. The result is that even if the solenama in the present case is held not to have been an "adjustment" within Order 21, Rule 2(1), nevertheless, being an agreement "intended to govern the liability of the debtor under the decree and to have effect upon the time and manner of its enforcement," it was a matter to be dealt with under Section 47. Therefore, the learned Subordinate Judge was justified in placing it on the record of the original decree and in disposing of execution case No. 73 of 1933 on the basis of its provisions. We accordingly decide this issue against the plaintiff-appellant. In the result this appeal is dismissed with costs.
19. Appeal No. 50 of 1937 (F.M.A.) and Appeal No. 141 of 1937 (F.M.A.) - These appeals which are connected with Appeal No. 82 of 1938 are not pressed. They are accordingly dismissed with costs.