JUDGMENT Woodroffe, J.
1. The first plaintiff appellant is the third widow of Rai Jadu Nath Mukerjee Bahadur, the testator. The second plaintiff is her minor son and the third is the minor widow of another son. The defendant respondents are the sons of the testator's deceased second wife Srimati Sattyabati Debi. The testator was the Government pleader of Hazaribagh and a man of considerable property. On the 16th November 1900, he executed a Will which was deposited in the Registry. This Will the Subordinate Judge has found to be a good family arrangement and according to the real intention of the testator. The defendants state that they are unaware of the steps which led to the execution of the Will. About four months, however, before the testator died, he left his house at Badambazar where all his children lived and went with the plaintiff and her relations to live in another house about a mile away called the Khirgram Bungalow. There are two circumstances in connection with this removal which are quite clear viz., that there was ill-feeling between the defendants, the sons of the testator's deceased wife, and the first plaintiff, their step mother, and, nextly at this time the testator was given to drinking. Owing to his ill-health Dr. Nott, the Civil Surgeon of Hazaribagh, prohibited the use of wine. According to the defendants' evidence his sons seconded the doctor and used on some occasions to throw the bottles away, until his removal to the Khirgram Bungalow when according to the evidence of Lokendra he was beyond their reach. It is, however, alleged that the plaintiff and Kashi, a cousin of the testator, used on the contrary to encourage his drinking habits. It is said that he also used to take opium, but Rajani Kanta Roy, a pleader and witness for the plaintiff, says that this had been prescribed by the doctor in order to keep down the testator's drinking propensities. It is suggested that the plaintiff took her husband to the bungalow to keep him aloof from his sons and other relations and to get him to make a disposition favourable to her. This is denied and in her evidence she says "I never gave my husband wine or any intoxicating beverage, I never gave him opium or intoxicating beverage for the purpose of weakening his mental powers or having the Will (Codicil?) executed by him * * * the state of my husband's mind till before his last illness was perfectly sound. No derangement took place at any time." Her witness, the pleader Rajani Kanta Roy, says that when the testator found that there was too much strictness in his not being allowed to drink wine, then he and his wife removed to the Bungalow. The defendants allege that the testator was completely under the widow's influence and the plaintiffs witness the pleader, Rajani Kanta Roy, when cross-examined whether this was not so, states that the widow, her father and her brother used always to surround him. The plaintiff says that the testator went to the bungalow which was about a mile away of his own accord and for a change. After the testator had left the family house for the bungalow and two months before his death the testator executed, it is said, on the 28th April 1902, a codicil which was as well as the Will deposited in the Registry office. This codicil was very much more favourable to the plaintiff than the will which had been executed some 17 months previously. The plaintiff and her sons appear to have been left better off as regards the immoveable property. But the chief change was as regards the share of the monetary assets. For whereas under the Will the first plaintiff the testator's widow got a 4-48 share, under the codicil this share was increased to 18-48. The case for the defence is that the defendants had hoard a rumour about the Will but nothing whatever of the codicil until after the testator's death which took place on the 27th June 1902.
2. On the sradh day the Will and codicil were opened and the pleader of the widow supplied copies of it. Upon this there is no doubt that a dispute arose as to the codicil whatever may have been the case as regards other matters. I refer to the will and a claim which was also set up that some property disposed of by the will belonged to the maternal grandmother, Jagat Tarini Debi. The objection of the respondents was that the disposition of the properties was unfair and this disposition is attributed to the exercise of undue influence and to the administration of opium and intoxicating drinks. According to a letter in the hand-writing of the plaintiff (I refer to the adult plaintiff the testator's widow) a charge was even made that she had poisoned her husband. Writing (Exh. C 1) to the defendant Adhindra Nath she says "I hear all persons of the house say that I have poisoned the Babu to death ! Let God be the judge of that but then the ignorant doctors and Diga stopped giving him opium. It is for that reason that his illness became serious and he died." She adds that even her own daughter Pitan was accusing her. This daughter was living with and under the influence of the defendants and was probably only repeating their charges. There is no reason to suppose that the plaintiff deliberately caused her husband's death; however much, if it be the fact that she assisted him in giving way to his drinking habit.. We are not here concerned with the truth of these and other charges provided that they were not both fraudulently and groundlessly laid with a view to extort a settlement of dispute. These charges are stated in the ninth paragraph of the written statement as follows: "That during the lifetime of the defendants' father plaintiff No. 1 deliberately and with obvious motives persuaded him to live in the Khirgram Bungalow, sequestered and estranged from the defendants and other members of the family and dishonestly prevailed on his weakened mind and disordered brain to execute the codicil, dated 28th April 1902, which the defendants verily believe was not executed at a time when the testator had a sound mind. Plaintiff No. 1 made it a point to administer opium and other intoxicating drinks to the lamented deceased, which made it impossible for him to understand things, far less comprehend the exact nature of what he was doing. The defendants submit the codicil was extorted by pressure of undue influence."
3. It is clear, however, that there was here full ground for a dispute of the character which is so often disastrous to families and family estates in this country.
4. These disputes went on for some time and as the plaintiff's witness Girindra Kumar Gupta says--the testator's affairs and the value of his property were the talk of the town. Negotiations at length took place between the parties and sometime about September 1902, a meeting was held in the Khiragram Bungalow. Before this Mr. B. Chakravarty, a leading counsel of the Calcutta Bar, had arrived at Hazaribagh to conduct a case for Mr. Mitter, who was a friend of the testator's family. On his arrival he appears to have been retained by the defendants. Mr. Chakravarty seems to have known the testator and the plaintiff endeavoured to secure his services and wrote him several letters (1)1--D6) and asked him to visit her. It would be well" she writes (Exh. D2) if some kind of settlement amongst us is come to in your presence." Elsewhere (D3) she states what terms she was willing to offer but says that the other side were demanding every thing and she asks him to decide the matters (Ex. D6). She sent her carriage and Mr. Chakravarty, Miss Mitter, Miss Jebens and Mr. Mitter went to the plaintiff's house. On their arrival they found chairs arranged for other visitors whom the plaintiff had invited to discuss the dispute between herself and her step sons. There were Girindra Kumar Gupta, the plaintiff's witness, who is now Government pleader of Hazaribagh and Bissesswar Mookerjee, another pleader. Besides the defendants, there appear to have been others and amongst them Gopal Chunder Sen formerly manager of the Encumbered Estates. It is suggested that Bissesswar Mookerjee went as the defendants' adviser. This is denied and it is said he was there as were the rest as friends of both parties. Considerable discussion took place as regards the terms of settlement, the plaintiffs holding out for better terms than those offered. Mr. Chakravarty and others present advised a compromise. An arrangement was come to and it was arranged that a deed should be drafted by the Government pleader and Bissesswar Mookerjee to be settled by Mr. Chakravarty. On the following morning, however, Jotindra, the plaintiff's brother, came and said that the deed was not to he drafted as the plaintiff would await the arrival of her father, Mohesh Chandra Banerjee, who has given evidence on the plaintiff's behalf. The latter arrived in October 1902. He then consulted pleaders both as regards the compromise and taking out of probate. The plaintiff's father, who is one of her witnesses, says that he tried to compromise the dispute and consulted pleaders. In particular he spoke to the Government pleader, Girindra Gupta, another of the plaintiff's witnesses who on being asked whether probate of the Will and codicil could be taken, replied this is a matter of complication, you try for a compromise." Rajonee Kanto Roy, pleader and witness of the plaintiff, had also suggested a settlement. The plaintiff's father tried to get better terms. Ultimately an agreement was arrived at. The Government pleader obtained a letter from the plaintiff agreeing to the terms and ultimately a draft was prepared and approved which was signed by the plaintiff. This was fair copied into two duplicate ekrarnamahs which the plaintiff and her father admit were read over to the former. Though the plaintiff says she did not fully understand its purport.
5. The ekrarnamah which was signed on the 16th December 1902 states that the defendants for various reasons say that the said will and the said codicil are invalid according to law, but considering a statement of all those reasons in this deed to be unpleasant, it is unnecessary to state them here. It also alleges that besides their own claims the maternal grandmother, Srimaty Jagat Tarini Debi, laid a claim to certain property dealt with by the Will and codicil which she alleged belonged to her having been purchased by her with her money. This property had been admittedly purchased in her name but a deed of release had been executed. "It was alleged that Srimaty Jagat Tarini who was a witness to the ikrarnamah asserted that she was not aware of the purport of the deed of release and that the same was null and void. Arrangement was then made for a division of the estate of the testator in the manner therein mentioned. It concluded by an agreement to take out probate or letters of administration of the will and the codicil in an amended form," an inaccurate mode of stating the manner in which they intended to give effect to the agreement, which in substance was that probate should be taken out of the Will and codicil upon the withdrawal of all objections thereto by the defendants in consideration of the division of the estate in the manner agreed upon. In accordance with this agreement probate was applied for on the 18th March 1903 and granted on the 16th June 1903. This probate was granted in a very peculiar and irregular form in consequence of the erroneous mode which the parties had stated as that by which they intended to give effect to their agreement. Evidence was given before the District Delegate of the execution of the Will and codicil and ekrarmamah, and probate was granted to, and on the application of, the plaintiff and two of the defendants, executrix and executor, the other executor being a minor. It stated that both the Will, codicil and ekrarnamah "modifying certain provisions of the Will and codicil" had been proved and that administration of the property and credits of the said deceased and in any way concerning his will and codicil and according to the agreement (ekrarnamah) aforesaid was granted to" the persons named.
6. This ekrarnamah was subsequently acted upon. Certain ornaments which the plaintiff claimed were three days after the ekrarnamah released from the objection of the defendants. These ornaments, of the value of 8 or 10,000 rupees, had been deposited in the testator's name with the Chota Nagpore Banking Association. The plaintiff claimed them as her own. On the 4th July 1902, the defendants stopped delivery (Ex. 5) of those ornaments alleging that they were entitled to most of the ornaments. It seems that their allegation was that the ornaments belonged to their mother, though no mention was made in the ekrarnamah about the ornaments. The defendant Lokendra states that the plaintiff said that unless the defendants gave up their claim to the ornaments, she would not carry on negotiations for a compromise and that they then gave up their claim. After the compromise and on the 19th December 1902 (Ex. 4), they wrote to the Bank withdrawing their objection to the delivery of the ornaments which were ultimately, though a long time after, made over to the plaintiff after a claim had been meanwhile preferred on behalf of the daughter Giribala to whom the ornaments were alleged to belong as heiress of her mother's stridhan; as regards other property, the plaintiff states that the collection of rent of the lands which the defendants gave up to her sons were mad separately; that her son-in-law realised and made collection of rents of her zemindari and that besides zemindari, she has collected house-rent. Apparently the monetary assets have been dealt with on the basis of the ekrarnamah, whether the plaintiff has been paid all that is due to her or not; she has sold her share of the property Zagodip which is part of the monetary assets and some Rs. 1,000 or Rs. 1,200 worth of shares in the Bank. As I have stated probate was taken out 'on the basis of the ekrarnamah on the 16th June 1903. The plaintiff acted as executrix and the estate was administered in the way arranged.
7. The subsequent conduct of the plaintiff is of importance as the ekrarnamah which was executed on the 16th December 1902 was not challenged by suit until about 2 1/2 years later on the 21st August 1905.
8. The plaintiff's case is that she found the muktipatra (deed of release) referred to in the ekrarnamah 6 to 8 months after the execution of the latter, that is about June-August 1903. She then came to know that it was a release executed by Jagat Tarini and said to her father here is the muktipatra, how could you get the ekrarnamah executed in the defendants' favour." Her father said that when the ekrarnamah was executed there was no further help in the matter. She says she took no further advice but believed the words of her father. It is not easy to see how the discovery of the muktipatra, could affect anything, for it was expressly referred to in the ekrarnamah. It is not as though the ekrar referred to Jagat Tarini's claims concealing the fact that there had been a document releasing them. It was expressly mentioned and the discovery of the original muktipatra, if it be a fact, discovered nothing. But if it did, no action was taken to repudiate the ekrarnamah.
9. How this repudiation came about is not very clear. The 22nd paragraph of the plaint says, that subsequently the plaintiff had a dispute with her father and began to live separately from him. In June or July 1904 she went to live for 2 or 3 months with her son-in-law, Nibaran Chandra Banerjee, a pleader, when she for the first time came to know that the ekrarnamah (to use her words) was executed without her understanding the nature and effect of that document and without understanding how it affected her rights under the Will and codicil, and she was advised that such ekrarnamah was not legally binding on her and would be set aside on her representing the facts before a Civil Court." Nibaran on the other hand says that it was the plaintiff who told him that her father had duped her.
10. About a year later this suit was instituted at the instigation of Nibaran Chandra Banerjee, who has given his evidence for the plaintiff. This person states that he is not on good terms with the plaintiff nor with her father or the defendants from whom he has "cut off all connection." Though he has advised this suit, he states that between the date of the testator's death and the date of the ekrarnamah, he discussed "with the plaintiff the dispute as regards the Will and codicil. He also used to see the plaintiff's son, Dijendra, frequently with reference to this dispute and the proposed compromise. The plaintiff's father, Mohesh, also consulted him on the same subject. The plaintiff wrote to him several letters with reference to the terms proposed which, however, are not produced. He says that the plaintiff kept him informed of everything she was doing during the negotiations for the compromise and wrote to him. After some of these letters he went and saw the plaintiff personally and told her whatever he had to say. Dijendra her son showed him the draft ekrarnamah.
11. He saw and spoke to Priya Nath Majumdar, another pleader of the plaintiff, as to how the dispute ought to be settled in fairness."
12. He, however, says that when asked by the plaintiff what she was to do, he told her that though a compromise would be desirable, she was to do as she thought best; when asked whether he advised her as to her legal rights: he first stated no' and then said he did not recollect but she might have asked him about that. Ho says he was indifferent but not as to the welfare of the minors. He did not, however, like to thrust forward his opinion as the plaintiff was unwilling to part with anything and in his opinion the plaintiff should have given up something. This person, who according to his account was indifferent when the compromise was being effected, though aware of all that was going on, and who has subsequently fomented this litigation with a view to establish that it was against the interests of the plaintiff and procured by fraud, misrepresentation and coercion, is not in my opinion a reliable witness.
13. In this suit we are not concerned with the question whether the Will produced was duly executed or whether there was in fact undue influence or "want of proper testamentary capacity--probate has already been granted. The Subordinate Judge has found that the probate was granted by a Court without jurisdiction. The appellants in the third ground of appeal contended that this was an erroneous finding and that the Sub-Judge had no jurisdiction to try the validity of the probate. During, however, the course of the argument the contrary position was maintained. Argument on behalf of the respondents has been advanced to show that the probate was not without jurisdiction, however irregular the form of the grant may have been. We are, however, not now concerned with this question. This Court has no jurisdiction to set aside the grant of probate if it can be or should be set aside.
14. The only question in this suit is whether the ekrarnamah is binding on the plaintiff.
15. The argument for the appellant resolves itself into the following main heads. It is contended in the first place that the plaintiff is a pardanashin entitled to the privileges of such and that it lies upon the defendants to establish that the transaction was fully explained to her, that she knew all the material facts in respect of which it was entered into and that she received proper legal advice. If this be established and it be shown that there was consent, it is alleged that that consent was not free as having been induced by coercion and fraud, and the agreement is on this account voidable. Nextly it is contended that the agreement is void under Section 23 of the Contract Act as being of such a nature that, if permitted, it would defeat the provisions of law.
16. I will deal with the last point first as it is one of law and one which, if decided in favour of the appellant, would render unnecessary the determination of any other point in the appeal.
17. The argument on this head is that there could be no agreement to take out probate in "an amended form:" that probate cannot be granted by consent of parties only and that any compromise which excludes evidence of a Will is unlawful.
18. It is of course obvious that there can be no such thing as an amended probate." Either the Will of the testator is proved or it is not. If proved what is proved are the provisions of the Will. Further there must be proof of the Will before probate is granted. The mere consent of parties without evidence in support of the Will and which satisfies the Court of its due execution is insufficient. In the present case no such question arises for admittedly evidence was given before the Probate Court which satisfied it that both the Will and codicil were duly executed. Owing to an erroneous view of the law the parties expressed their intentions in an irregular form. There could be no amended probate" as stated in the ekrarnamah but when a testamentary instrument is propounded and a caveat against the grant is entered, it is common practice that opposition to the grant should be withdrawn upon terms. Upon this being done, the promovent proceeds to prove the will unless probate has already been granted in common form. In such a case and according to the practice on the Original Side of the Court the caveat is discharged and the grant made. Such an order is alone within the scope of the suit. But if a settlement has been arrived at under which opposition has been withdrawn, it is recited in the decree that the parties have agreed to terms of settlement and it is ordered that such terms be recorded. The terms are then recorded in a schedule annexed to the decree. Such terms when, as they ordinarily are, beyond the scope of the suit are not the subject matter of the decree, and if not carried out, must be enforced by separate suit. It is argued that in any case no settlement can be arrived at which has the effect of in any way interfering with the disposition of the testamentary instrument of which probate is sought. But in my opinion this is not go. Neither the Court nor the parties can make for the testator any will other than that which he has executed. When, however, all the parties beneficially interested under that Will consent, they can agree to dispose of the estate in a particular manner when it reaches their hands. In that case they are really dealing with their own property. Such an agreement may be given effect to either by a redistribution by and amongst themselves after the executor shall have made over the property in terms of the Will, or without waiting for such a distribution in conformity with the will by a direction given by all beneficially interested to the executor to give direct effect to the agreement which the parties have arrived at as to the disposition of the properties given to them by the Will.
19. It is clear enough what the parties intended. But they attempted to give effect to it in an irregular way. Their agreement in substance was that probate should go and opposition should be withdrawn upon the terms mentioned in the ekrarnamah as to the manner the estate was to be disposed of. The Regular way to effect this was to obtain probate and letters of administration in terms of the Will and to merely record the agreement which, if not given effect to, would have been enforceable by a separate suit. Had this been done, there would have been nothing illegal in it and the fact that, an irregular mode was adopted to give effect to what if properly carried out would not have been illegal, cannot make that, which is otherwise legal, illegal.
20. I hold therefore that the ekrarnamah was not void.
21. The next questions are whether the plaintiff gave her consent to that document and if so whether that consent was free.
22. Firstly as to the nature of the agreement itself, the evidence establishes that it was the opinion of every body connected with the family that a compromise was advisable. This was also the opinion of the various legal gentlemen, Counsel, or Vakils who were concerned in the negotiations. The plaintiff's father deposed before District Delegate that the compromise was for the benefit of all parties and in the present case, in which he has been called as a witness on her behalf, he has stated that under the circumstances existing at the date of the ekrarnamah he believed it to be a beneficial arrangement. Nibaran Chandra Banerjee, the plaintiff's son-in-law, a pleader and promoter of this suit, states that he told the plaintiff that a compromise was desirable. Girindra Kumar Gupta, the Government pleader, a friend and witness of the plaintiff and her family, also advised a compromise and states in his evidence that he considered that the compromise was beneficial to the family. The plaintiff's witness and pleader Rajoni Kanto Roy, also advised a settlement though this witness did not advise he says as to the actual terms. Lokendra the defendant says that most of the leading men of the town took a greater or less part in effecting the compromise. As regards the plaintiff herself, Miss Annie Mitter, who has no interest in the dispute, speaking of the meeting at which she and Mr. Chakravarti and others were present, says that she came away fully convinced that the lady thoroughly understood and was perfectly satisfied with the final decision," and that the plaintiff told her that had it not been for Mr. Chakravarti's kind answer to her invitation, such an amicable settlement could not have been come to." It must be remembered in this connection that the plaintiff subsequently by the ekrarnamah itself obtained even better terms than were settled at the meeting of which Miss Mitter speaks,
23. The plaintiff was at the date of ekrarnahah 31 or 32 years old. Miss Mitter who knew the plaintiff very intimately says that the plaintiff is an educated and very intelligent woman "so far as Zenana ladies go." Though the position of a pardanashin is claimed for her, she was not pardanashin in the strict sense of the term. She had to appear before and speak to males who were strangers and go out shopping and settle fares of gharrywallahs. Her carriage had open doors except when passing through the Bengali quarter of the town. She had herself photographed, carried on her own correspondence and appears to have considerable capacity for business and for looking after herself. The negotiations for the compromise disclose her throughout as a capable and self-willed woman keenly bargaining for better terms for herself. She did not observe the customs of Hindu widows and in her letter (Ex. H) ridicules the notion of religious merit in the observance of the Hindu laws of mourning. It must, however, be observed that the defendant describes his wife and sisters as pardanashin though they do not observe strict seclusion.
24. Assuming the plaintiff, however, to occupy the position of a pardanashin, the circumstances to which I have alluded and others may be considered as inconsistent with or contrary to those upon which the presumption as regards pardanashin is raised and as thus helping to discharge the burden of proof, which it is contended lies upon the defendants to show that the transaction on which they rely was fully understood by her.
25. The evidence shows that the terms were fully discussed before the execution of the ekrarnamah. The negotiations according to the plaintiff's father went on for 2 or 3 months.
26. A draft of it was prepared which was approved by the plaintiff. The latter's evidence shows that corrections were made in the draft at her father's instance. The documents were read and explained to the plaintiff who according to Miss Mitter's evidence "fully understood every part of the discussion and followed it very carefully and seriously." It has, however, been contended that the plaintiff was unaware as to the position and value of the estate which the compromise affected and did not receive legal advice as to such compromise.
27. The plaintiff's case is that she was informed that the value of each share of her husband's monetary assets was Rs. 2 to 300 only. This statement receives no support from the evidence produced by her, the Government pleader stating that the value of 1-48 share of the testator's monetary assets were variously estimated at between Rs. 2 to 4,000, his own estimate being between Rs. 3,000 and 4,000 Rupees. The plaintiff's father says he told her that the monetary assets were worth one lakh of Rupees. The plaintiff's witness Rajoni says that the plaintiff never gave him to understand that she took the value of a share to be Rs. 2 or 300 only. The papers relating to the valuation of the estate were placed before and discussed by her. I may here say that in my opinion the evidence of the plaintiff on this, as on many other matters, is not truthful. The plaintiff in her evidence subsequently admitted that Girindra Gupta, the Government pleader, told her father the value of each share of the realisable assets of her husband and that Girindra sent her this information through her father before the execution of the ekrarnamah. The evidence satisfies me that the plaintiff sufficiently knew the state and value of her husband's property. Then as regards legal advice, I have already referred to some of the evidence on this point. The ekrar which was explained to the plaintiff recites that she had deliberately considered the matters therein dealt with and had taken the advice of relations, friends, pleaders and counsel. Rajoni Ray, the pleader, a witness for the plaintiff, says that the plaintiff's brother Jotindra used to go to him for advice. The plaintiff's son Dijendra used also sometimes to come. He says he has no recollection of any direct communication between himself and the plaintiff and though he advised a compromise he did not make any suggestion as to the terms. It is noteworthy that the only letters from the plaintiff produced by this witness are of a date subsequent to the ekrarnamah.
28. Girindra Gupta, the plaintiff's witness, also acted as her pleader and held a vakalatnamah from her. He says I did not advise her as a lawyer or her lawyer but I did advise her as a friend of the family. I advised her to compromise. I wanted that there should be no dispute." Girindra Gupta was the Government pleader, a friend of the plaintiff, fully conversant with her husband's affairs and presumably a person of competent legal attainment. Assuming his evidence to be true, advice does not cease to be legal because it was given as the advice of a friend and not charged for. Whether given professionally or not it still remained the advice of a legal mind cognisant fully of the facts on which it was given. The witness says that the plaintiff did not ask for his advice as regards the effect of the testator's Will and codicil as she wrote to him that she had been consulting with others about this matters. He says it was the plaintiff's son who proposed the meeting at which the terms were discussed and that he used frequently to see Jotindra, the plaintiff's brother, who was acting in the plaintiff's interest. With the evidence of the pleader Nibaran, the plaintiff's son-in-law, I have already dealt. It is noteworthy that though he admits that the plaintiff corresponded with him daring the negotiations for a compromise, none of these letters are produced.
29. Mohesh Chandra Banerjee, the plaintiff's father, states that he took legal advice on behalf of the plaintiff. The latter now says that her father physically coerced her into the compromise and cheated and duped her and that she has set a pleader to watch his conduct. The plaintiff's father says that he has been compelled to conduct this suit out of self interest as if he did not do so, the plaintiff would not supply him and his family with maintenance. He of course does not state that he coerced his daughter or acted otherwise than in her interest but he states that the plaintiff, was not agreeable to compromise and that the fear which he put into the plaintiff was that she would be poor. The pleader and plaintiff's witnesses, Rojoni Roy and Girindra Gupta, state that in the matter of the compromise both the plaintiff's father and her brother were acting for and in the interest of the plaintiff. Mr. Chakravarti held, as I have stated, a retainer from the defendants but his intervention was at the instance of the plaintiff and the advice given was, I have no doubt, so given as a friend of and in the interest of both parties. Lokendra, the defendant, says that Girindra Kumar, Priya Nath Majumdar, Nibaran Chandra Banerjee and Rojoni Kanto Roy were the plaintiff's pleaders from whom the plaintiff used to take instructions in the matter of the disputes and the settlement of the disputes between us and the plaintiff."
30. In my opinion the plaintiff had and received all the legal advice and protection which was necessary for a proper understanding of the document to which she put her signature and the parties acted with equal knowledge or means of knowledge in the matter.
31. It is, however, then contended that assuming that the plaintiff knew what she was doing, her consent was not free having been procured by coercion, fraud and misrepresentation. As regards this portion of the case it is to be observed that the onus rests on the plaintiff.
32. In her evidence the plaintiff states that her father physically coerced her and that her step-son Dijendra threatened to shoot her and that she signed the document under compulsion, weeping and lamenting. All this I believe to be entirely false. So far from the plaintiff's father being in a position to coerce the plaintiff, he is, according to the evidence, entirely dependent on her and the plaintiff has more than once threatened to cut off the allowance she makes to her father unless he complied with her wishes. No stress was laid on this part of the case during the argument which was, however, addressed to establish that the ekrarnamah was procured by the unlawful detention of the plaintiff's ornaments. It has been contended firstly that the defendants knew that they had no claim whatever to the ornaments, and, secondly that even if this be not so it is not necessary that the detention should be unlawful in the sense that the person retaining the property knew that his claim thereto was wholly unjustified. It may well be that a person should not lose his property because another has mistaken his rights and that detention is unlawful whenever it is by a person who has no right to the property, but in my opinion the plaintiff has not established that there was unlawful detention in either sense; I have already referred to the facts upon this part of the case. The defendants did not claim all the ornaments which as stated were deposited with the Bank in the name of the testator and not of the plaintiff. The defendant Lokendra says that among the ornaments deposited there were some belonging to his mother. These ornaments were to have been given by the testator to the defendant's two youngest brothers Harendra and Parendra who were yet to be married. The ornaments were to be given to their brides at the time of their marriage. The plaintiff admits that her husband gave some ornaments to his wife Satyabati, but while the defendants say that the ornaments were kept at the Bank, her case is that the ornaments were given to and kept with his daughter Giribala on account of the two sons. The plaintiff stated that unless this dispute about the ornaments was settled by the surrender of the defendants' claims, she could not carry on negotiations for a compromise. The defendants accordingly gave up their claim. Before the 7th April 1903, plaintiff did not apply to have her name recorded as the owner of the ornaments nor for their withdrawal. On that date application being made an order was passed by the Director of the Bank for the mutation of the plaintiff's name in lieu of that of the testator. The ornaments were, however, apparently left with the Bank until July and August 1904 when application was made for their withdrawal and they were made over to the plaintiff on the 19th February 1905, the delay being due both to the loss of the original receipt given to the testator and to an intermediate claim by Giribala for the ornaments. It is not possible I think to say on the evidence that there was no bond fides in respect of the ornaments claimed. Moreover although it is now alleged that the plaintiff was coerced into signing the ekrarnamah by reason of the alleged unlawful detention of the ornaments, the plaintiff does not herself say in her evidence that, this was the case. This it has been argued is immaterial. But this is not so. If a person alleges that he or she was induced to do a particular act which he or she would not otherwise have done but for pressure put, that party must give evidence that it was such pressure which induced the act. The pressure which was in fact alleged was by the plaintiff's father, a case which in my opinion has entirely failed. I would here make an observation concerning the general charges of oppression of the plaintiff. It does not seem to me to be credible that had the plaintiff been harassed and oppressed as alleged, she should not have complained of it. Had she done so, it is impossible to suppose that those who were friendly to her, such as her pleader, Girindra Gupta, would not have taken steps to protect her but would on the contrary have advised a settlement, which according, to information given to them by the plaintiff, had been procured by such alleged oppression. That they did so shows that no complaint of such oppression was made and the record bears no evidence of such complaint. These and the other allegations appear to have been after thoughts when for some reason or other the settlement was subsequently repented of.
33. Nextly as regards the alleged fraud and misrepresentation, it is no doubt clear that though mistake in law is not a ground for setting aside a compromise, there must be an absence of all fraud and misrepresentation. Though a claim may be in fact unfounded the party setting it up must at least believe that he has a claim which can be settled. This question as also the last is one of fact.
34. The fraud and misrepresentation alleged is with respect to that portion of the ekrarnamah which deals with the claim of Srimaty Jagat Tarini. The defendants after referring to their own disputes with the plaintiff recite a claim by this lady, a third party, with respect to certain of the properties disposed of by the testator. The Subordinate Judge's finding is in favour of this claim. He says after a view of the evidence upon the whole I am inclined to think that Jadu Nath was in charge of Jagat Tarini's properties and funds, the value of which it is difficult to say; that the disputed bungalow was purchased in her name and the understanding was throughout that her grandsons were to get it, and this was confirmed by the first Will and the deed of release was only a transaction to give effect to the arrangements in it." The correctness of this finding is not only challenged but it is said that it is absolutely without foundation and was known to be so by the' defendants who fraudulently put it forward to secure a compromise. No doubt there was a registered release by Srimati Jagat Tarini but the latter, as is so commonly the case (and is indeed the case of the plaintiff as regards the ekrarnamah itself), set up a defence that she did not understand it. That she was making a claim appears not merely by her signature to the ekrarnamah but by the evidence of the plaintiffs' witness, Girindra Gupta. The plaintiff in her evidence says that her husband had told her that he had purchased property benami in the name of Srimati Jagat Tarini. She knew this fact, therefore, before the execution of the ekrarnamah. She must also have known that Srimaty Jagat Tarini had executed a release in respect of the property so purchased, for the ekrarnamah expressly refers to this release although in her evidence she says she had never heard of this release until after the execution of the ekrarnamah when the document was found. A good deal may no doubt be said against the validity of this claim and it may be that were it the direct subject matter of litigation, I should be disposed to hold that it had not been made out. The alleged letter of the testator, dated the 2nd May 1901, which supports it, is charged to be a forgery. The case for the defendants is that the lauds of the Chota Bungalow and tank belonged to Jagat Tarini hut that a deed of release was obtained from her so that their might not be a dispute between the six brothers defendants, as these properties were to be given to Harendra and Dijendra only. But the ekrarnamah does not refer to any such arrangement nor is any mention made of the testator's letter of the 2nd May 1901. Moreover before the deed of release was executed, the testator had made a Will in respect of these properties. Further it is said what was the necessity for such an arrangement. Why should not Jagat Tarini herself have directly made a gift or Will of the property to her grandsons instead of ostensibly relinquishing the property to Jadu Nath and leaving the matter practically at his discretion. The evidence also establishes that the testator spent a large amount on this property to which Jagat Tarini laid claim as her own. What further, it is asked, was the necessity for stating in the ekrarnamah that Srimaty Jagat Tarini did not understand the deed of release which she executed. Why not have referred to the letter of the testator now produced and say that there was an understanding which nullified its effect? These and other arguments have been addressed to us to show that this letter was concocted after the date of the ekrarnamah and for the purpose of establishing that there was substance in the claim of Srimaty Jagat Tarini which was put forward as one of the subjects of compromise. On the other hand, there is evidence that the letter bears the testator's signature. Speaking for myself, I should, had I to deal with the validity of this claim, have been disposed to hold that it had not been made out. But it is necessary and we are asked to hold more than this, viz, that not only had Srimaty Jagat Tarini no claim but that the defendants knew that she had 110 claim and fraudulently induced Srimaty Jagat Tarini to assert it in order to compel the plaintiff to come to a compromise and then attempted to show by means of forgery that there was some substance in the claim which justified them in putting it forward. 1 am unable, however, upon the evidence to come to such a conclusion. I do not think it is sufficient to establish so gross a fraud nor do 1 see why the defendants should have resorted to it. There were quite sufficient grounds of dispute between themselves and the plaintiff with reference to the codicil to form the subject matter of compromise without bringing in the fraudulent claim of a third party; as the claim was in fact made and it was desired to settle all disputes, it was probably considered necessary to mention it, whatever may have been its actual merits. 1 am, therefore, unable to hold that the plaintiff has established the fraud and misrepresentation alleged.
35. In this connection I may refer to an argument based on the doctrine of election. It is said that the defendants having elected to take possession of the immovable properties bequeathed to them by the codicil and they having done so before the execution of the ekrarnamah they thereby precluded themselves from setting up the title of Srimaty Jagat Tarini to the Khirgram Bungalow and also from contesting the validity of the bequest of that property in favour of the plaintiff's minor sons. But in my opinion Section 167 of the Succession Act as incorporated by the Hindu Wills Act has no application to the case: the defendants are not claiming as their own any property that the testator has disposed of and the matter before us is not one in which any question of election comes into operation.
36. Something was also said as to want of consideration. But the consideration in such cases is not the sacrifice of any right but the settlement of a dispute, and the Court does not consider narrowly the quantum of consideration. In my opinion the agreement was not void for want of consideration: equity leans towards the maintenance of family arrangements and the ekrarnamah in suit appears to one to have been a fair settlement of the dispute between the adult plaintiff and the defendants and has been acted upon. I refer to the adult plaintiff only as the Subordinate Judge has not allowed her to prosecute the suit on behalf of the minors. Their interests are accordingly unaffected by this appeal, for I do not think that we should, as we have been invited by the respondents, to reverse the lower Court's decision upon this point. Moreover the necessary materials are not before us. I would, accordingly, dismiss this appeal with costs to be paid by the adult appellant.
37. The principal plaintiff in this case was the third wife of the late Rai Jadu Nath Mukerjee Bahadur, the defendants being his sons by another wife. He executed a Will in November 1900, which was deposited at the Registration Office. In February 1902 he removed from his principal house to his house at a place called Khirgram about a mile off and lived there with the plaintiff. On the 28th April 1902, he executed a codicil to his Will, which also was deposited in the Registration Office. He died on the 27th June 1902. Disputes arose about taking out probate and administering his estate. Sometime in September a meeting was held and it is alleged by the defence that a compromise was arrived at. The plaintiff's case is that nothing was settled. A little later the plaintiff's father returned to Hazaribagh and further discussion ensued with reference to the dispute which ended on the 16th December 1902 in the execution of an agreement. This was to the effect that the plaintiff should resign a certain proportion of what are called the monetary assets and also the Khirgram Bungalow and tank and that all the executors should take out probate of the Will and codicil amended according to the terms of the agreement. An application to this effect was put in by both parties on the 10th March 1903 and granted on the 16th June 1903. The present suit was brought on the 21st August 1905. The plaintiffs plead that the principal plaintiff or, as she may be styled, the plaintiff executed the ekrarnamah without understanding it, under coercion and misrepresentation. The prayers are that, firstly, the ekrarnamah and, secondly, the probate may be declared invalid and cancelled. The Subordinate Judge has dismissed the suit and the plaintiff appeals.
38. The appellant's case is that the ekrarnamah is not binding on her, because the transaction was not properly explained to her although she is a pardanashin lady and entitled to that protection. On the contrary it was obtained by misrepresentation and coercion and, therefore, even if she were not a pardanashin lady, it would be voidable by her. Moreover, it is argued that the ekrarnamah is void in any case, because the object of the contract was to defeat the provisions of law. Finally it is said that the defendants are precluded by Section 167 of the Indian Succession Act 1865 from insisting on the ekrarnamah.
39. It will be convenient to take up first the contention that the ekrarnamah is void because its object was to defeat the provisions of law. It is argued that it is illegal to grant probate of a Will as modified by an agreement of the legatees and that, as the object of ekrarnamah was to obtain such a probate, it must be regarded as intended to defeat the provisions of the Probate and Administration Act, 1881. I doubt very much if this is correct. The law does not forbid the grant of such a probate. It simply does not contemplate its possibility and I doubt if a contract of which the object is to create a right, which is not contemplated in the Act, can be said to defeat the provisions of that Act. Looking through the Act itself it is very difficult to see what provision of it can be said to be defeated by the contract. Moreover, the breach of law is more technical than practical. The legatees could certainly take out probate of the Will and codicil and then manage the administration of the estate, so far as it affected only their own interests, according to agreement among themselves. This is what was really intended and what has been done, and the fact, if it be a fact, that the means for carrying this arrangement out were illegal does not vitiate the contract on which these proceedings were based.
40. It does not appear to me, however, of much importance whether the grant of the probate was illegal or not. The Subordinate Judge has found that it was illegal and there is no cross-appeal. Assuming that it was illegal, it does not follow that the contract was illegal. The contract must be construed reasonably and so construed, it can only mean that the contracting parties agreed to apply for the grant of the amended probate. They could not contract that they would compel the Court to grant the probate, whether it wished to grant it or not. And the mere promise to apply for a probate that cannot regularly be granted, when, as in this case, the promisors clearly think that the grant is unobjectionable, cannot defeat the provisions of any law. If the law is defeated it is the grant and not the application that defeats it and this contract, though it speaks loosely of taking out probate, cannot reasonably be construed as meaning that the parties contracted that the probate should be granted. The promise to apply is analogous to the contract in the first illustration to Section 21 of the Contract Act and does not defeat the provisions of law any more than the contract in that illustration does.
41. Another point taken is that as the defendant's case was that the codicil was obtained by undue influence, their promise amounted to an agreement to shut out evidence of the real mind of the testator and was, therefore, illegal. To this the simple answer is that to make the agreement illegal on this ground it must be shown, not only that the defendants pleaded undue influence, but that undue influence was really exercised. As the plaintiff does not allege undue influence, she cannot plead that the agreement to exclude evidence of such influence was illegal.
42. I have no doubt, therefore, that the ekrarnamah is not bad on the ground that its object defeated the provisions of any law.
43. The next questions to be decided are whether the plaintiff had the transaction properly explained to her and whether her consent was obtained by misrepresentation. That she knew what the contract was is perfectly clear. She says--' At the time of signing 1 made the objection, viz., I won't execute it in that way, i.e., I won't execute the instrument conceding to them all that they wanted i.e., a moiety share of my money and the tank and the Chota Bungalow and half of the lands. The things were mine, why should I execute an instrument giving them the same; I, therefore, was making the objection." Her letter also to Mr. Chuckerbutty (Ex. D3 ) shows that she knew perfectly well what the contract was. It remains therefore to be seen firstly whether her position was properly explained to her and secondly whether her consent was obtained by misrepresentation.
44. As regards the first point it is only relevant if the plaintiff is a pardanashin lady in the sense attached to that expression, by the Privy Council decisions. I am clearly of opinion that she is not. Those decisions refer to people who are really kept in seclusion and have little or no commerce with the outer world. They are based on the fact of that seclusion. They attach no magic to the name of pardanashin, but merely afford a just protection to weakness and ignorance. The word pardanashin may last for a long time yet, but as women get more and more emancipated, the decisions of the Privy Council will become less and less applicable to them whether they continue to be called pardanashin or not. Now in the present case the plaintiff cannot in my opinion be regarded as so secluded and ignorant as to be entitled to the protection that the Privy Council has given to really secluded women. The evidence leaves no doubt that she has as much commerce with the world as she wants and is not hampered in any way by such relics of the old system as she has chosen to retain. She discussed matters with her pleader, Babu Kalipada Sarkar, without a veil, and went to be photographed in Calcutta at Messrs. Sen and Co.'s. It is pointed out that her sister-in-law Giribala, who is admittedly pardanashin, was also photographed and it is argued that therefore this fact is of no importance. I cannot agree to this argument. Both ladies probably retain the name of pardanashins, whether they are really emancipated or not is another question. Being photographed certainly shows that the veil is beginning to be lifted. It may not by itself be proof of emancipation, but it may, taken with other circumstances, be some evidence of it. Those other circumstances exist in the case of the plaintiff. Whether they exist or not in the case of Giribala, this record does not show. Exhibit D 3 also shows that the plaintiff was willing to meet and speak to Mr. Chuckerbutty and of course there is plenty of evidence on the other side to show that she was emancipated.
45. But the evidence of the meeting which resulted in the compromise establishes that the plaintiff is a free and capable woman, who requires no special protection. It is quite clear from the evidence that this meeting was called by the plaintiff herself, that it was attended by several gentlemen, pleaders and others, besides some ladies, and that the plaintiff discussed the matters in dispute with freedom and with as much understanding of the case as any of the male defendants. Gopal Sen, a respectable witness for the defence, whom there is no reason to disbelieve, says that her face was unveiled, and all that her own witness Babu Girindra Kumar can say is that she might have had a sheet on. It seems to me clear that a lady who is able and willing to discuss her affairs with this publicity is not the secluded and ignorant creature that the Privy Council justly desire to protect.
46. Even, however, if it be assumed that the plaintiff is entitled to be regarded as entirely secluded, the conditions laid down by the Privy Council as precedent to a valid contract by a woman have, in my opinion, been fulfilled. Those conditions are that the woman must fully understand what she is doing and that she must have competent and independent advice. Now in this case, as I have shown, the lady knew exactly what the agreement was. That she had access to competent and independent advice is also clearly proved. A few days after the meeting her father returned to Hazaribagh and immediately began to try to get better terms than had been settled at the meeting. The allegations of the plaintiff that her father betrayed and coerced her are in my opinion childish. He is conducting her case and has evidently been looking after her interests always. Her witness, Babu Rajani Kanta Roy, says he never saw the father do anything from which he could think that he was unfriendly to the plaintiff. And her witness Girindra Kumar says up to the time of the ekrarnamah both Mohesh Babu and Jotindra were not inimically disposed to the plaintiff They had been during that period acting for the plaintiff and in the interest of the plaintiff. I had no doubt that up to the ekrarnamah both Mohesh Babu and Jotindra were acting for the plaintiff and in the interest of the plaintiff. They were doing what was for her welfare." Besides at the time the plaintiff's brother Jotindra and her son Dwijendra, a boy 15 years old, were acting for her and I can find no allegation that they too were really her enemies.
47. It is quite clear that the plaintiff had the advice of Mohesh and Jotindra, her father and brother, before the ekrarnamah was signed and this advice was, in my opinion, independent. As to legal advice she was able to consult several pleaders both by herself and through her father and brother. It is nowhere laid down that when a pardanashin woman has access to legal advice and does not choose to avail herself of it, her contracts are invalidated. Her witness Rajani Kanta Roy, a pleader, says that Jotindra used to come to consult him about the defendants' objections to the codicils. Babu Girindra Kumar says that before the application for probate he used to advise the plaintiff as a friend, though not as a lawyer. She wrote to him about the effect of the Will and codicil. He says she did not want his advice but said in the letters that she had been consulting with others about the effect of the Will and codicil. The witness adds that he did not advice her because his advice was not sought for. He says also that Priya Nath Mozumdar, another pleader, used to take interest in the plaintiff's case during the period between Jadu Babu's death and the application for probate. In cross-examination he admits that Jotindra came to him very often after Jadu's death and that Mohesh had talk with him several times before the ekrarnamah. The next witness is the plaintiff's son-in-law, Nibaran Banerjee, also a pleader, whose advice when given a year and a-half afterwards is described in the plaint as independent legal advice. He says that he talked to the plaintiff 4 or 5 times about the dispute over the Will and codicil. He saw the draft of the agreement and though he says he does not recollect if it was before or after the execution of the ekrarnamah, it is natural to suppose that it was before. The plaintiff's son also spoke to him about the Will and codicil and the plaintiff herself wrote to him 6 or 7 letters. He says that he did not reply and did not advise, but it is difficult to believe this. He too says that Priya Babu took an interest in the plaintiff's affairs. Thus it is clear that there were no less than four pleaders, to say nothing of Mr. Chakerbutty, whose advice was accessible to the plaintiff, even if it be supposed that they did not actually advise her. The supposition, however, seems to me hardly reasonable. The suggestion is that they all refused to advise her but without applying their minds to the circumstances of the case, pressed her to compromise in order to avoid litigation. It seems to be altogether unlikely that these gentlemen were able to abstract their attention from the circumstances of the case for this period of several months, during which the plaintiff was writing letters to them, her father, brother and son were visiting them, and evidently the plaintiff and her father were leaving no stone unturned to get all they could out of the dispute.
48. I hold, therefore, that the plaintiff knew perfectly well what she was doing and had access to and received plenty of independent legal advice. It must next be considered if her consent was obtained by any misrepresentation.
49. The misrepresentations pleaded are (1) that the codicil might be rejected as being obtained by undue influence, (2) that the value of the estate was under-estimated and (3) that the Khirgram property might be successfully claimed by Jagat Tarini, the maternal grand-mother of the defendants.
50. As regards (1) the Subordinate Judge has gone into this question at great length, though it was not raised in the issues and has found that the codicil was obtained by undue influence. It has been strongly pressed upon us that he has misconstrued the law on the subject and that the influence which the plaintiff exercised was, in the light of modern decisions, nothing more than the natural influence of wife upon her husband. It appears to me that the question does not properly arise in this suit at all if the plaintiff could show that the defendants knew that no undue influence had been exercised and put forward the plea knowing it to be false, or that the plaintiff was a pardanashin woman and that advice as to the law on the subject had been withheld from her, the case would be different. But there is no reason at all for supposing that the defendants acted in bad faith in announcing their determination to contest the codicil. They were not present when it was made and it seems to have been executed without much publicity. The principal defendant went away with others about 10 or 12 days before Jadu Babu's death to attend the wedding of the defendant Horendra. They left Jadu Babu in bad health, but bad health was usual to him and they did not apparently imagine he was near his end. During their absence he died somewhat unexpectedly and the codicil then became known to them. The testator had for sometime lived with his wife and not with them and had been addicted to liquor and opium. It seems to me, without imputing any undue influence to the plaintiff, that the step-sons might reasonably under such circumstances suggest that all was not right and determine to put the plaintiff to strict proof of the Will and require her to clear herself from the suspicion that she had used improper influence. As has been said the plaintiff had plenty of legal advice available to enable her to judge how far such a determination would be dangerous to her and I have no doubt that she availed herself of that advice. What was the exact advice given it is not easy to say, but there is no reason to suppose that the advice, whatever it was, was not given in good faith. In those circumstances the assertion of the defendants that they would attack the codicil certainly does not amount to misrepresentation.
51. As to the second point, the plaintiff says that she was told that the value of each shares of the assets was Rs. 200 or Rs. 300 and would never have executed the ekrarnarnah if she had known that the value was Rs. 2,000, or Rs. 3,000; each share being l-48th of the whole, and the effect of the compromise being that the plaintiff gave up 9 shares. The evidence, however, of any misrepresentation on this point is quite unconvincing. Babu Rajani Kanta Roy says that plaintiff was never under any impression, as far as he knew, that the value of the assets was only Rs. 15,000 as she now asserts. His impression was throughout that the value of 1-48th was about Rs. 2,000. Babu Girindra Kumar's estimate was that the value was between Rs. 3,000, and Rs. 4,000. He is not prepared to say that he had no conversation with the plaintiff or her relatives about the value. He adds that nobody to his knowledge ever estimated the value at less than Rs. 2,000. The plaintiff herself admits that Girindra told her through her father of the value of the shares between the meeting and the ekrarnamah. Mohesh says he told his daughter that the assets would be a lac but that the whole would not be realised. I think the plaintiff has wholly failed to show that any misrepresentation was made to her about this matter.
52. As to the 3rd point the plaintiff's case is, that the Khirgram property was not Jagat Tarini's and that the representation of the defendants on this point was intentionally false. Here too the Sub-Judge believes that Jadu Nath was in charge of Jagat Tarini's money and purchased the bungalow in her name on the understanding that it would go to her grand sons. The claim, therefore, cannot be regarded as obviously unreasonable. The property admittedly stood at one time in the name of Jagat Tarini and was released by her to Jadu Babu in 1901. The plaintiff's allegation that she knew nothing of the release and would not have executed the ekrarnamah if she had known of it cannot be believed. There was nothing clandestine about it. The deed of release (to which Nibaran was a witness) was in her possession after Jadu Babu's death, though she says that she was unable to find it. And it is clearly mentioned, both in the ekrarnamah and in the draft which was shown to the plaintiff 4 days before the ekrarnamah was executed and subject to plenty of consideration before the ekrarnamah was executed. The learned pleader for the appellant has called our attention to certain points in the evidence such, for instance, as the omission of the defendants to produce the accounts of the repairs of the bungalow, which may lead to the inference that the property really belonged to Jadu Babu. In that case Jagat Tarini's allegation that her release was invalid might have been dishonest. But this is mere inference and it seems to me that the materials on the record are quite insufficient to justify a finding as to the real ownership of the property. And to find not only that Jagat Tarini's claim was unfounded, but also that the defendants knew it to be unfounded, is in my opinion, quite unwarranted by the evidence in the case. It follows that here too it cannot be held that there was any misrepresentation.
53. I come next to the plea of coercion. Originally assertions of violence were made against the plaintiff's father and one of the defendants, but these are not pressed and the action which is now said to amount to coercion is the detention of certain ornaments worth Rs. 8,000 or Rs. 10,000. These were deposited by Jadu Babu about a year before his death with the Chota Nagpore Bank and on the 4th July 1902, the defendants gave notice to the Bank that they were entitled to most of them and that they should not be delivered to anyone else. It is said that by this action the plaintiff was reduced to poverty and was unable to negotiate with the defendants on equal terms. It may be observed that the plaintiff does not say that she executed the ekrarnamah under this coercion. In fact sher denies it. She says my father in concert with them said to me unless you have this executed you have no other means. They are more powerful. All the respectable people of Hazaribagh are on their side. They have also detained your ornaments. You have not a single piece in your hands. Do this. Otherwise you have no means at all.' I did not even then agree to do." Then she says that her father coerced her by threatening to assault her and catching hold of her. But I agree with the learned pleader for the appellant that it is unsafe in this country to attach too much importance to the ipsissima verba of witnesses and that we should see whether the plaintiff was really subjected to oppression.
54. Now the first point that strikes me is that the ornaments were deposited by Jadu Babu himself; and the learned pleader for the appellant at first gave us to understand that these were part of Jadu Babu's estate and came to the plaintiff by the clause in the Will which provided that the chattels in the testator's own use and possession should be considered as his wife's. But as in that event it was clear that the plaintiff could have no right to withdraw them until the probate was taken out: the contention subsequently relied on was that they were the plaintiff's own property. Now here too we are confronted with an almost entire lack of materials on which to come to a finding as to whom the ornaments originally belonged to. The proof that they were the plaintiff's rests on her own statement and on the fact that in the compromise they were given to her. Her evidence contains so many untruths that I am not disposed to attach much importance to her bare word. As to the abandonment of the defendant's claim the defendant Lokenath says that they never admitted that they were the plaintiff's, but gave them up to secure the compromise And I think it would be altogether unsafe to infer that if in a family arrangement a claim is given up, the claim must necessarily have been unfounded. And there is the fact that they were not deposited by her or in her name. I do not think this evidence is sufficient to justify a finding that all these ornaments were the plaintiff's and therefore their detention cannot be regarded as unlawful. It is perhaps unnecessary to consider whether even on the supposition that the ornaments belonged to the plaintiff's, the defendants acted in good faith. But it may be observed that there is nothing unreasonable in their story that some of the ornaments were the property of their deceased mother. If that were so it is not likely that the males of the family would he able to say which were the ornaments of the plaintiff and which those of the defendants especially as they had been deposited a year before. In such circumstances it was only reasonable of them to tell the Bank to detain the ornaments until the claims could be decided, and this conduct on their part cannot be regarded as animated by an intention to cause the plaintiff to execute the agreement, within the meaning of Section 15 of the Contract Act.
55. But even if the ornaments did belong to the plaintiff, it is not proved to my satisfaction that their detention hampered the plaintiff in her dealings with the defendants. There was much property included in the Will and codicil about which there was no dispute. Lokendra says that the parties took possession of these items of the property before the ekrarnamah. This is also stated in the written statement, but there is no clear denial of this assertion by the plaintiff, though there is perhaps what amount to a denial by Mohesh. If this were so, although of course tenants and debtors might be recalcitrant until the parties came to an agreement, the ekrarnamah could have made but little difference to the plaintiff's ability to apply for probate, for which no duty would be payable unless and until she won her case. And after the ekrarnamah she could apparently get on quite well without her ornaments. They were left in the Bank and though she applied to have her name recorded with respect to them in April 1903, she made no attempt to withdraw them till July 1904, when she had gone to Nibaran's house and received his counsel that the ekrarnamah could be upset. After that naturally enough, objections to her withdrawing them were raised but there is nothing whatever to show that she could not have taken them back at any time in 1903 or the first half of 1904. If then they were not necessary to her during that time why were they absolutely necessary before. It is not clearly proved that she could get nothing out of the properties that she held without dispute. The collection papers are not produced. It is clear also that she drew about Rs. 600 from the Bank, and she had jewellery worth about Rs. 3,000. In the letter marked Ex. C2 which, according to the learned pleader for the appellant, must have been written shortly after the probate, it appears that she admitted that she had money enough to go to law. In these circumstances it may be that it would have been more convenient to her to have had undisputed possession of the ornaments. It is always convenient to have money or things on which money can be quickly raised. But I think it is not proved that the want of these ornaments inconvenienced the plaintiff at all seriously or hampered her appreciably in dealing with the defendants. The statements of Girindra that he believed there was no coercion and Mohesh's deposition before the District Delegate that the compromise was for the benefit of both parties are hard to reconcile with the theory that the defendants coerced the plaintiff into signing the ekrarnamah by reducing her to poverty. Finally the plaintiff's long acquiescence in the ekrarnamah renders the theory that she was compelled to execute it by poverty quite incredible. In my opinion the plaintiff has failed to prove that her consent to the ekrarnamah was obtained by coercion.
56. Two minor points may be noticed, namely, first that the defendants would have been precluded by Section 167 of the Indian Succession Act from insisting in their claim to the Khirgram property. But it appears to me that Jagat Tarini is the only person who could have been affected by that section; secondly it is urged that the Subordinate Judge was wrong in not allowing the plaintiff to prosecute the suit on behalf of the minors. But having regard to the result of this appeal, I think the Subordinate Judge's order is for benefit of the minors and should not be interfered with.
57. The result is that in my opinion the plaintiff has wholly failed to show that she is not bound by the ekrarnamah and accordingly I would dismiss the appeal with costs.