P L D 1958 (W (PLP)

QADEERUDDIN, J.

‑ Haji Umer left considerable property and died in the year 1920. He left two wives and children from both of them. His children from Nasib Khatoon and the widow herself filed a suit, being suit No. 91 of 1935 against the Other wife viz : Mst. Bahawal and her children. In addition to these defendants, there was another defendant by the name of Hidayatullah who was impleaded because his name appeared in the revenue records jointly as the owner of some of the property left by Haji Umer. The suit was for the partition of certain property and separate possession of the share of the plaintiffs. The plaintiffs wanted their share to be separated from the share of the defendants and did not pray for the separation of their own shares inter se. The property which was to be divided was detailed in lengthy schedules which was marked as "A", "B", "C", "D" and "E". It consisted mostly of agricultural land but included war bonds, cash, jewellery, cattle a few otaks, wares and other buildings. This suit was compromised on the 21st of August 1936. According to the scheme of the compromise the property was divided into four categories. Some property was given jointly to the plaintiffs, some was given jointly to defendants 1 and 2 viz. Mst. Bahawal and her son Abdul Rahman, some was given jointly to defendants 3 and 4 viz Hidayatullah and his wife Asiat who was the daughter of Mst. Bahawal. The compromise recorded that the plaintiffs had given up their claim to the movable property, but that the parties had agreed that if there were any war bonds in the name of Haji Umer, the plaintiffs are entitled to half the amount which might be realised from the Government and the other half was the share of defendant No.

1. The appropriation of the standing crop was left to be determined by Mr. Taj Muhammad Fateh Muhammad. The division of the land which was submerged in water was also left to the arbitration of Mr. Taj Muhammad Fateh Muhammad. The conduct of this suit was apparently in the hands of Abdul Rasool on behalf of the plaintiffs. He was a son of Mst. Nasib Khatoon and brother of the other plaintiffs. The compromise was made by the signatures of the male members of the parties and was executed on behalf of the adult female plaintiffs viz Nasib Khatoon and her daughter Mst. Rajul by Mr. Gopaldas Ramchand pleader, who stated in the compromise deed that he was specially authorised for this purpose. The female defendants viz Mst. Bahawal and her daughter Mst. Asiat too did not sign the compromise deed which was signed on their behalf by Mr. Sewakram advocate who also described himself to be a specially authorised agent in this regard. There were two minors amongst the plaintiffs one male and one female, who were represented by Abdul Rasool as their next friends but there is no dispute with regard to their shares and therefore their minority and the form of the sanction of the compromise is immaterial for the present appeal. It appears that the parties acted on the compromise for ten years, that is to say, upto the beginning of 1947. It appears that misunderstandings were created in the minds of the female plaintiffs because Mst. Nasib Khatoon has stated in Court on the 21st of January 1948, as follows :‑ I have got practically nothing by way of inheritance from my husband's property. My sons give me rations and go away. And :‑ "I do not know if our land is joint so far as my sons are concerned. Abdul Rasool may be looking after the joint land." Her daughter Mst. (sic) has stated on the same date "My maternal uncle Ismail made inquiries and told us that the case was disposed of and we had been defeated and our interest had suffered. We told our uncle to safeguard our interest and help us. My uncle then engaged an advocate of Hyderabad and filed the present suit." With this background the present suit, No. 9 of 1957, was filed by these two women on or about the 5th of February 1957, with a prayer that the decree in suit No. 91 of 1935 be set aside. The reasons for instituting the suit are evident from the above noted statements of the two plaintiffs. One can see that the maltreatment by the male members of the mother and sister could not be the fault of the terms of compromise particularly because there was no prayer in the suit for the separation of the shares of the plaintiff inter se. As to the statement which Ismail made to Mst. (sic) it was incorrect in so far as he stated that the plaintiffs were "defeated." Besides this mis‑statement, he merely expressed a vague opinion saying that their "interest had suffered", He has after this played the part of a better sympathizer and friend than the sons and brothers of the two plaintiffs in filing the new suit, on the ground that the women allegedly entreated him to "safeguard" their interest. He went about the job firstly by engaging a counsel to institute a suit and then following it up. The counsel, who was engaged by him, made a good job of the task entrusted to him by drafting a detailed plaint and basing the cause of action on the information of "fraud" received by the plaintiffs from Ismail, and thus got over the obstacle of ten years' delay in filing it. His clients, however, did not play their part well. According to the statement of Ismail in the new suit he had come to know of the suit, which was compromised a year or two only before the new suit, but according to Mst. Rajul, he knew of it from its beginning and that these women used to make "enquiries from him about the result of the case" and he used to tell them that "their interests were prejudiced". If this is so then the requisite information was received by these women while the previous suit was yet pending or soon after its compromise. Mst. Rajul has stated :‑ My uncle lives in our village. My uncle did not attend to suit proceedings at Hyderabad as a matter of course but we sent him to make inquiries about the case as we learnt that we had been prejudiced. It was 10 or 12 months ago. Again says that it was about 5 or 10 years ago. It was, not easy for the plaintiffs or their counsel to allege fraud properly and establish it. No particulars of fraud, as such, have been set out in the plaint. No objection was, however, raised against this omission by the defendants. It is too late now to ask for particulars and we take it, as suggested by the counsel who supported the plaint, that the fraud consisted in the mis representation made to the Court by the counsel of these two women at the time of the compromise that he was specially authorised, to make the compromise and that without their knowledge some property was conceded to Hidayatullah who was not an heir of Haji Umer. The grounds for setting aside the decree are stated in detail in paragraph 10 of the plaint. This is an important paragraph because it summarizes the entire case of Mst. Nasib Khatoon and Mst. Rajul. It is as follows : "That the present plaintiffs are not bound with the alleged compromise and decree purporting to have been passed in terms thereof in suit 91 /35. The said compromise and decree are bad in law, illegal and inoperative and without jurisdiction inter alia on the following grounds :‑ (a) That the present plaintiffs who are Pardah Nasheen ladies were not parties to the alleged compromise and decree passed in terms thereof. (b) That the present plaintiffs never notified to Court nor gave their consent in writing or otherwise to Court which appears to have recorded the said compromise. (c) That the present plaintiffs never authorised any member of the firm of Gopaldas Wadhumal advocates or Mr. Ramchand advocate to specially or generally enter into any compromise on their behalf within any party in the said Suit No. 91 of 1935. (d) That the present plaintiffs did riot send any instructions to their advocates through any one to enter into any compromise on their behalf in the said suit. They were not consulted by any body about it at any time. (e) That the advocate who derived his authority to act and appear on behalf of the present plaintiffs from that Vakalatnama referred to above and who has endorsed "Specially authorised to compromise on behalf of the present plaintiffs had never been authorised to enter into any compromise and the said advocate consequently stated without authority and in excess of authority in so entering and admitting the said compromise on their behalf, which he had no right to do rill this has been done at the back of and without the consent and knowledge of plaintiffs. (f) That none of the then members of Gopaldas Wadumal & Co., advocates, held or filed in the said suit before the Court, the present plaintiffs general or special power of attorney authorizing him generally or specially to compromise suit on behalf of the present plaintiffs and Consequently none of the members of the F. O. Gopaldas Wadhumal & Co., could be recognized by said Court as having any authority to compromise the suit on their behalf. (g) That the alleged compromise and decree passed in terms thereof is a result of coercion and fraud perpetrated on the Court and the present plaintiffs. (h) That the alleged compromise is contingent, problematic, indefinite and incomplete and at the same time it embraces matters outside the scope of suit No. 91/35. (i) That under the alleged compromise due share in the pro perties of Haji Umer has not been reserved for these plaintiffs and on the other hand the present Defendant 5 who has no right or interest in the properties of Haji Umer has been dishonestly and fraudulently given share." This suit was defended by Hidayatullah and the descendants of Mst. Bahawal. The sons and one daughter of Mst. Nasib Khatoon who were plaintiffs in the previous suit were impleaded as defendants and they have supported the case of the plaintiffs. Thirteen issues were framed in the new suit which were decided in favour of the plaintiffs and the suit was decreed on the 31st July, 1948. The present appeal is against this judgment and was filed in October 1948. It was admitted in January, 1949. This is one of those lamentable appeals which could not be decided earlier because of the vicissitudes of, circumstances and the mis fortune of this litigation: Luckily the parties are alive and are represented before us by their learned counsel Mr. Jamiatrai and Mr. Muhammad Shafi. Mr. Jamiatrai for the appellant defendants has not questioned the decision of the trial Court on every issue and has wisely con fined his arguments to two questions as the basic questions on which the fate of the appeal depends. His contention is that firstly, Mr. Gopaldas Ramchand who signed the compromise on behalf of the plaintiffs was specially authorised to do so and in any case there was no fraud because the plaintiffs were aware of the compromise and had consented to it secondly, the new suit was barred by time. The learned counsel of the respondent‑plaintiffs has; contended that there is no allegation, much less proof, that instructions were given to Mr. Gopaldas Ramchand either by the present plaintiffs or by any other person on their behalf to enter into the com promise and to sign it on behalf of the present plaintiffs. Moreover, no power was given to the advocate by his Vakalatriarna to compromise the suit. The latter contention is correct. The learned counsel has relied on Rumappayya, v. Subbamma and others (A I R 1949 Mad. 98), Srimati Sarakkumari Dasi v. Amyllyadhan Kundu and others (A I R 1923 P C 13), Rijharain Badaldas and other v. Vithaldas Jethanand and others (A I R 1947 Sind 4) and Din Muhammad and another v. Farooq Mirza (P L D 1955 Sind 62). He has pointed out that the appellant‑defendants have produced evidence in the trial) Court only to establish that one Mr. Taj Muhammad Fateh Muhammad had brought about the settlement and that a few persons went to the, present plaintiffs and obtained their consent to it. The learned counsel has con tended that the plaintiff being Parda Nasheen ladies the onus was on the appellant defendant's to prove that the terms were explained to them and that they agreed to them after understand ing their purport. He has questioned the trustworthiness of the witnesses who have deposed that they explained the compromise by emphasizing their connections with Hidayatullah. Lastly, he has contended that the suit was within time because the limitation runs from the knowledge of fraud, which the plaintiffs did not have and not from a suspicion of fraud which they might have had. He has relied on Rahimbhoy Habibbhoy v. Charles Agnew, Turner (I L R 17 Bom. 341) in support of this proposition. We realise that the onus of establishing full and intelligent consent to the terms of the compromise by Parda Nasheen ladies was a difficult one to discharge if emphasis is laid on what the ladies actually understood. It is no doubt necessary that the terms of a document should be explained to such ladies and that they should accept them after understanding them. But the burden of explaining a subject does not include the responsibility of creating a bill and the capacity to under stand it. Some times the will to exert oneself is absent and sometimes the problems of an estate are utterly strange to Pardanasheen ladies because their mind has not been initiated into them. As has been judicially recognised by learned Judges, women‑folk in the area of former Sind are accustomed to leaving the management of their properties to their men‑folk and to trusting them implicitly and completely. Such a custom indicates a disinclination on the part of the women‑folk to scrutinize problems relating to their properties and a tendency in them to accept the actions of their men‑folk as substitutes for their own acts. If, in such circumstances, there isan allegation of an adverse interest of the men‑folk against the interests of their women‑folk, then the importance of the absence of knowledge of facts to women‑folk is much greater than in the circumstances in which mere absence of information is pleaded as a ground for repudiating a transaction. In this case, the com promise was signed on behalf of the adult women of the both sides by their advocates. The plaintiffs remained inactive for about 10 years. If their word is believed, then they were not inactive but had been making enquiries right from the institution of the previous suit until they obtained the requisite information from Ismail. Mst. Nasib Khatoon has stated :‑‑ "Abdul Rasool paid my pleader at Hyderabad on my behalf. Abdul Rasool attended the suit proceedings at Hyderabad on behalf of myself, Abdul Rahman, Abdul Alim, Mst. Rajul and Mst. Mariam. We used to make inquires from him about the suit at Hyderabad. He would not tell us anything at first but would ultimately say that the suit proceedings were still pending. He never told me till today that the suit at Hyderabad had been disposed of." According to this statement there was an anxiety from the beginning on the part of this lady to know the developments of the case as well as its result, but Abdul Rasool, who is her son, communicated no information to her. He was prosecuting the suit on behalf of his mother, sisters, and brothers whose interests were common with his own and all of whom, including himself, lived together. It is unbelievable that he could have succeeded in concealing the facts from his mother and sisters for about ten years. We have quoted earlier a portion from the statement of Mst. Rajul, according to which Ismail was aware of the suit and used to talk of it to these women. He had told them that their interests were in jeopardy. They cannot be believed to say that they were not aware of what was taking place, Mr. Muhammad Shaft is right in contending that a mere suspicion of fraud is not sufficient for the purposes of limitation which begins to run only from a definite knowledge of fraud. It is so, but according to Mst. Rajul, Ismail had told them about ten years ago that their interests were prejudiced. This was as definite an information as the one on the basis of which the new suit was instituted. Accord ing to Mst. Rajul, Ismail never gave her more information than that their interests had suffered. According to Mst. Nasib Khatoon, the new suit was filed merely on the information of Ismail that they were given "less" share in the inherited property than was their due. Actually there is nothing to show that even this statement is correct. It is true that Hidayatullah has been allotted some share in the property and he is not a descendant of their common ancestor, but the loss caused by the grant of a share to him in the common property is the loss of every body else also. There is no distinction in this regard between the interests of the men‑folk and women‑folk. Mr. Muhammad Shall has contended that those who made the compromise with their eyes open were at liberty to accept the loss but the plaintiffs cannot be made to suffer on account of the considerations which might have led the men‑folk to accept it. This argument amounts to an acceptance of the position that the women have not suffered more than the men which in other words means that there was no conflict of interests between the mother and the sisters on the one hand and the sons and the brothers on the other hand. We wonder at the argument that the sons and brothers have gained an advantage and that the mother and sisters have suffered a loss. None of the descendants of the common ancestor has gained any advantage at the expense of the respondent‑plaintiffs. Abdul Rasool, who was incharge of the prosecution of the case, has certainly not gained any, advantage on account of the compromise of the suit. The truth appears to be that the plaintiffs were able to collect as much knowledge and information of the proceedings of the previous suit and of the terms of the compromise as they cared to collect. They have raised the plea of fraud in the new suit on the basis of a vague statement allegedly made by Ismail. They entrusted the conduct of the new suit to Ismail, who was 90 years of age and had become blind when he is supposed to have pro secuted it. Their own capacity to manage their property is indicated by the statement of Mst. Nasib Khatoon that if I get my share, my brother will look after it". The capacity of the brother, Ismail is indicated by his age and by the absence of his eye sight. There is a suggestion in the cross‑examination of this lady that the new suit was prosecuted by his own con demned son; Abdul Rasool. We hold that Mr, Gopaldas Pamehand advocate was not directly authorised by the respondent‑plaintiffs to enter into compromise and to execute the document but he did so with their full implicit consent. We also hold that the plaintiffs were in full possession of the facts of the previous suit and its compromise to the extent to which they cared to know and to understand them. No fraud was perpetrated on them and they have suffered no bigger loss due to the allotment of some property to Hidayat ullah than all others who had any interest in the suit property as the descendants of the common ancestor. Hidayatullah is not ‑a stranger to the family. He is a nephew of the common ancestor and the husband of Asiat. His name was existing in the record of rights and one can see that it could be honestly considered to be a wise step to let him have a portion of the ancestral property and to put an end to the dispute. The learned counsel of the parties agree that the limitation filing the new suit was three years from the time when the alleged fraud became known to the plaintiffs in terms of Article 95 of the Limitation Act. We have held that there was no fraud and we have also held that the plaintiffs were aware from the beginning of the true facts to the limits to which they were willing to know them. If there was a fraud then the limitation started to run from the date of the compromise and the suit is barred by about seven years of time. The appeal is accordingly accepted and the suit is dismissed with costs throughout. K. M. A. Appeal accepted.