Mahabir Tewary and Another vs Chhathu Tewary and Another

Courtney-Terrell, C.J.—This is an appeal against a decision of the Subordinate Judge remanding the case to the Munsif for decision after appointing a commission to report on certain matters which are specified in the Subordinate Judge''s order.

The facts which are relevant to our decision are as follows: It appears that in 1925 there was a partition suit in which one Sahdeo Tewary was the plaintiff and his two nephews Chhathu Tewary and Jangi Tewary were the defendants. In that suit a compromise petition was filed and a decree was passed in accordance with the compromise. The present suit was brought by Chhathu and Jangi against Mahabir Tewary and Raghubir Tewari, sons of Sahdeo Tewary, who was the plaintiff in the suit of 1925 to set aside the compromise as having been induced by fraud.

Now the allegations of fraud are specifically set out, albeit with immense verbosity in the plaint, and the simple point for determination by the Munsif was whether the plaintiff had or had not established that the compromise had been effected by the alleged fraud. Each side called one witness and the Munsif held that the plaintiffs had not made out their allegations of fraud and dismissed the suit. When the case came before the Sub-Judge he took a course which I have frequently seen taken and against which I feel it my duty to protest. He made a mistake which is extremely common and which is the fruitful cause of immense and protracted litigation between parties. He came to the conclusion that the case involved the following questions:

(1) Did the plaintiffs sign the petition of compromise without understanding the details of allotments? If so, was it due to any fraud on the part of Sahdeo Ram?

(2) Do the two takhtas represent grossly unfair division? If so, are the plaintiffs likely to suffer material injury?

(3) Was the partition decree given effect to? If so, did the defendants acting on the compromise decree make any improvement?

The learned Subordinate Judge then went on to use the following expression of opinion which is the subject of my comment, He says:

As regards the first and second questions, the determination of the first question depended on the answer to the second question. One of the plaintiffs stated that the value of Sahdeo''s takhta is three times the value of their takhta.

We are constantly seeing in these Courts cases in which a party seeks to set aside a compromise on the ground that it was induced by fraud and he proposes to show that it was induced by fraud by going into the subject-matter of the compromise and showing that the division effected was unfair to him and it is argued that this is quite a permissible way of attacking the compromise inasmuch as it tends to show whether it was probable that the plaintiff would have entered into the compromise unless by fraudulent inducement. That is an entirely illogical method of approaching the case. Sometimes also the Court proceeds to examine whether the plaintiff''s claim was well founded in law--an equally irrelevant inquiry. The proper method for a Court in approaching a case of this kind is to say to the plaintiff in effect:

I will assume for the purposes of this case that the division effected by the compromise constitutes from your point of view a thoroughly bad bargain otherwise you would not have attempted to get it set aside bue you must proceed to establish not with standing that assumption in your favour, that the compromise was induced by fraud.

The legal procedure for setting aside a compromise is not a procedure for setting aside a hard bargain and Subordinate Courts should remember this. The learned Subordinate Judge did not proceed to deal with the very simple issue upon the evidence which had been recorded and which was before him as to whether the plaintiffs had or had not established the allegation of fraud but he remanded the case first of all for the appointment of a competent commission to go to the spot and prepare a map relaying the batwara plots by actual measurement on the survey map and prepare a khasra and give the annual value of each and every plot without taking into consideration the improvement if any made since 1925 and after taking into consideration such report the lower Court was to decide the case as indicated above" meaning that the conclusions arrived at by the commissioner were to guide the Court on the question of "probabilities."

Now this order was, in my opinion, entirely unnecessary and puts the parties to an immense amount of trouble and expense and not only that it offends against the fundamental principles upon which cases for the attack of compromises should be approached. The order therefore of the Subordinate Judge should in my opinion be set aside and the case should be remanded to the Subordinate Judge for a decision upon the simple issue of fraud as established by the evidence and he should approach the case subject to the guidance of these observations.

I would therefore allow the appeal. It is unnecessary to deal with the preliminary objection which was raised as to whether an appeal lies against the order of the Subordinate Judge for in any event it is a proper matter for being dealt with by way of revision. The respondents should pay the costs of this appeal.

Fazl Ali, J.

I agree.