Durga Prasad vs Bhaggo Bai

Shivdayal, J.—Bhaggo Bai instituted a suit against Durga Prasad, Mohanlal, Maujilal, Subhagmal and Shyamlal alleging that she had entrusted her ornaments to one Ramnarayan for safe custody, but Mohanlal Maujilal and Subhagmal took them away by fraud and kept them with Durgaprasad defendant No. 1, with the assistance of Shyamlal defendant No. 5. She claimed a decree for possession of the ornaments or, in the alternative, their price.

Mohanlal defendant alleged that the ornaments which were kept with Durgaprasad realy belonged to one Darshanlal a minor, while Mst. Bhaggo, Shyamlal and Ramnarayan had conspired to deprive the minor of his property.

Durgaprasad admitted that the ornaments were kept in his custody by Mohanlal defendent No. 2 but alleged that they belonged to Darshanlal.

Maujilal defendant No. 3 replied that the ornaments were placed with the first defendant by Mohanlal.

In the course of the trial a compromise was negotiated. On March 18, Bhaggo Bai intimated to the Court that on the assurance that ornaments would be delivered to her a receipt was obtained from her by Durga Prasad on his Bahi but, in fact, he did not give her any ornaments and Mohanlal ran away with them. She prayed for proper steps to be taken. On this application the learned Civil Judge First Class, Gwalior, who was trying the suit, issued an order to the police to recover the ornaments and produce them in the Court.

On the next day, that is on March 19, 1958, an application was made by Durga Prasad, Mohanlal, Maujilal and Subhagmal which must be reproduced here in extenso, as I shall have occasion to refer to it more than once.

Bhaggo Bai in replay to that application admitted that a compromise was negotiated and that she executed a receipt on Durgaprasad''s Bahi but denied having received the ornaments and also denied that she accepted any right of Mohanlal or to have entered into any agreement with him.

The trial Judge made an enquiry and came to the couclusion that a compromise was reached between the parties which was to the effect that all ornaments were to be delivered to to Bhaggobai but she would not claim costs from the defendants. The learned trial Judge then held that the ornaments had not been delivered to Bhagobai and, further, that there was no agreement between her and Mohanlal under which any of the ornaments was to be given to him.

Since all the ornaments except one gold Khangwari (Necklace) had been recovered by the police and produced before the Court, the leaned trial Judge passed an order that the ornaments lying in the Court be delivered to Mst. Bhaggo Bai and that Durga prasad was to return the Khangwari or to pay its price to Bhaggo Bai. Costs were not allowed to her, according to the compromise.

Durga Prasad alone has come here in appeal. It is urged on his behalf that the defendant''s application of the 19th March should have been either accepted in its entirety or should not have been acted upon at all. The argument is that if the Court accepted the statement of the defendants regarding the compromise the whole of it should have been accepted and acted upon, otherwise the defendant''s application of the 19th March should have been completely ignored and the trial of the suit proceeded with as if no such application had been made. Alternatively, we are asked to set aside the decree so far as Durga Prasad is concerned and to pass a fresh decree against Mohanlal for the return of the Khangwari or for its price. It is strenuously maintained that in proceedings under Order 23, Rule 3 C. P C. the Court cannot substitute its own judgment on the merits of the case; it has either to accept the terms of the compromise, as alleged, or to refuse to record it.

Before I deal with this contention let it be recalled that the only dispute in the suit was whether the ornaments belonged to Bhaggobai or to Darshanlal. It was uncontroverted that the ornaments which had been placed by Bhaggobai with Ramnarayan for safe custody had been taken away by defendants 2, 3 and 4 were kept with Durgaprasad defendant No. 1. From the written statements of Mohanlal, Maujilal and Durgaprasad it is quite clear that Mohanlal deposited the ornements with Durgaprasad. To put it differently, if as a result of the trial the Court came to the conclusion that the ornaments belonged to Bhaggo Bai a decree for delivery of the ornaments in her favour would have been inevitable; if, on the other hand, it was found that she was not the owner, her suit would have been dismissed. Thus, this was the real issue in the case. Now in proceedings under O. 23, R. 3 C.P.C. Mst. Dhwnwantibai, mother of Darshanlal was examined. She clearly stated that she never asked Mohanlal to keep any ornaments of Darshanlal with Durgaprasad; that Darshanlal had no concern with the disputed ornaments; and that she did not enter into any agreement with Mohanlal for distribution of the ornaments. It may also be mentioned here that Dhanwanti Bai put her signature on Bhaggo Bai''s application on the 18th March in support of the statement made therein. The main dispute in the suit having thus resolved, there could be no doubt that all the ornaments bad to be delivered to Bhaggo Bai only.

Shri Patankar confronts us with a technical difficulty. His argument, stated above, at first appeared attractive but on a title reflection I am positive that it has no substance. On a careful perusal of the defendants'' application of the 19th March, it must be found to be constituted of three component parts:

(1) That a compromise had been arrived at:

Sewa me nivedan hai ki mamle sadar me razinama ho chuka hai;

(2) That the ornaments had been delivered to Bhaggo Bai and Dhanwanit Bai:

Razinama ke mutabiq zewar pakar wadini Bhaggobai thatha Dhanwantibai sarparast wa walda Darshanlal ne Durgaprasad se zewar pakar rasid likh di jo asal police Indarganj ne apne qubze me li hai. Wa bahi Durgaprasad me bhi zewar pane ki bharpaye maujood hai: and

(3) That there was a separate agreement subsequent to the said compromise "Iske pashchat Durgaprasad se zewar lekar paratiwadi Mohanlal ko uske huq ka zewar de diya. Aur apne huq ka zewar wadni tatha Dhanwantibai ne apne rishtedar Jwalaprasad Jhansi wale ke pas rakh diya Thaiha, eqrarnama jis men ki pratiwadi Mohanlal ka huq mana gaya tha wah bahi Jwala Prasad ke pas rakh diya gaya.

I have underlined the first and the third constituents in the text of the compromise petition reproduced above. On that analysis, I can say that the application under O. 23, R 3 C.P. C., made by the defendants on the 19th March, contained three statements as to (1) a compromise (2) implementation of the compromise and (3) an extraneous agreement I call it ''extraneous'' because it was nobody''s case that Mohanlal had a claim to or had any interest in the ornaments. His own defence was that he was out to safeguard the interests of Darshanlal. It was only in his statement during the course of the enquiry under O. 23, R. 3 C.P.C. that Mohanlal stated for the first time that he had acted as Mukhtar Am for a number of years and had conducted litigation on behalf of Darshanlal in which he had incurred expenses.

I propose to deal with the three aspects of the compromise petition separately. The defendants did not setup any title in themselves to the disputed ornaments. The contesting defendants claimed that the ornaments really belonged to Darshanlal. From the proceedings under O. 23, R. 3, it is clear that Mst. Dhanwantibai, the mother and guardian of Darshanlal denied his title to the ornaments. In their statements Durgaprasad, Maujilal and Mohanlal are unanimous as to the reaching of a compromise. Thus it must be taken as accepted on all hands that a compromise was reached between the parties.

No doubt the contesting defendants stated that the ornaments had been delivered to Bhaggo Bai and Dhanwanti Bai. That was the real point in dispute. The learned trial Judge reached the conclusion that this statement of the defendant was wrong and contrary to facts. Shri Patankar has not seriously challenged this finding, and, in my opinion, very rightly. If the ornaments had been delivered, to these women, they could not soon after be recovered from the possession of Durga Prasad and Mohanlal. It requires a feat of imagination that Bhaggo Bai, who had been deprived of her ornaments would part with practically all of them even when Dhanwanti was not claiming any of them. Thus it has been rightly held that the compromise was not implemented.

The story that in pursuance of a fresh contemporaneous agreement the ornaments were distributed between Mohanlal and Durgaprasad, is fantastic. It is remarkable that except for a gold Khangwari (Necklace) the rest of the ornaments were all recovered either from Durgaprasad or from Mohanlal. If there was really such a distribution it means that Mst. Bhaggo Bai got nothing except a Khangwari. Mohanlal stated to the Court that the ornaments recovered from him came to his share as a remuneration for the services rendered by him to Mst. Dhanwanti Bai because he acted as Mukhtar Am and conducted her cases in law Courts. It must be mentioned here that no such claim was made in the written statement nor was there any mention of such services. As for Durgaprasad he stated that he got five gold Mohars and one gold ring in remuneration for his own services, namely, that he kept in his custody the disputed ornaments which Mohanlal brought from Ramanarayan. It is rather difficult to believe that such an exorbitant ''fee'' could be paid for the custody. Jwalaprasad, the person named in the third part of the compromise petition, was summond by the defendants. He categorically denied having been entrusted with any ornaments and that any compromise or agreement was written in his presence or delivered to him or that he took them for getting them signed. Thus Jwalaprasad''s statement was destructive of the story of a subsequent agreement with Mohanlal. It seems that this story was set up to counteract Bhaggobai''s complaint of the 18th March and to explain the recovery of the ornaments by the police from them. The third part of the compromise petition must, therefore, be disbelieved and rejected. At any rate, that being an extraneous matter, it could be no impediment to the recoading of the compromise and passing of a decree in accordance with it in this case. Durgaprasad and Mohanlal can, if they feel advised, enforce their claims by a separate suit or suits.

This brings me to the real question pressed before us by Shri Patankar. As already pointed out, there is absolutely no doubt that a compromise was arrived at between the parties to the effect that the ornaments were to be delivered to Bhaggo Bai and that she was to give up her claim for costs of the suit. In fact, the finding of the trial Judge in this behalf has not been seriously assailed before us by Shri Patankar. Rightly so, because it is founded on overwhelming evidence. As soon as we reach this conclusion it must be said that the trial Judge committed no error in giving effect to it and passing a decree in accordance with it. He disbelieved the averments made by the defendants in their application of the 19th March that the compromise had also been performed. I cannot agree with Shri Patankar that if the allegation relating to the implementation of a compromise is not believed by the Court then it should also throw out the compromise itself. The two things are separate and distinct. There can be no confusion about them. Thus the trial Judge was to see separately whether the first two elements of the compromise petition of the 19th March were or only the first was proved. The third piece of the compromise petition was a foreign matter. It was something extraneous to the dispute in the suit. Moreover, on the defendants own showing, it was not a part of the compromise itself but was subsequent to it. The words "iske paschat" (after this) are remarkable.

What is to be seen under O. 23, R. 3 C. P. C. is whether a compromise has really been reached or not. As soon as the Court finds that there has been a lawful compromise, a decree must be passed in accordance therewith, irrespective of whether it has been implemented or not. Likewise, a separate agreement subsequent to the compromise cannot be an impediment to the recording of the compromise and passing a decree in accordance with it. If the Court finds that a compromise is not implemented, as alleged, the decree based on the compromise can be put to execution. If there is any extraneous agreement the remedy is by way of a separate suit for its enforcement. In this view of the matter I see no technical or procedural error in the passing of the decree appealed against.

In the peculiar circumstances of the case the ornaments having come to the Court, the trial Judge was fully justified in ordering their delivery to Bhaggo Bai.

Now the question is whether a decree for restoration of the Khangwari has been rightly passed against Durgaprasad or whether it should have been passed against Mohanlal. Durgaprasad was admittedly in possession of the ornaments at the time of the suit and this he admitted in his written statement. After having received notice of the suit he was bound to retain the ornaments and deliver them to him whom the Court found entitled. He was not absolved of the liability by giving the ornaments to Mohanlal. The missing Khangwari is either in the possession of Durga Prasad or Mohanlal. In either case it is the liability of Durgaprasad to return it or to pay its price to Bhaggo Bai. It is unnecessary to consider whether Mohanlal is also responsible for the return of the Khangwari because the plaintiff has not preferred any appeal to this Court.

In the result, this appeal is dismissed. The appellant shall pay to Bhaggo Bai respondent her costs in this Court. Mohanlal shall bear his own costs.

Khan J.

I agree.