P L D 1971 Karachi 147 (PLP)

This view has been consistently upheld by various Courts from time to time and it was, therefore, established that the appellant was not competent to file ejectment proceedings against the' respondent on the basis of the will, which by itself was ineffective in law. It follows, therefore, that the orders passed by consent on the ejectment application in the course of the proceedings before the Rent Controller resulting in the compromise between the parties was due to fraud and misrepresentation on the part of the appellant upon the respondent as well as the Court, the resulting factor being that the compromise dated 12th December 1961, was not a lawful compromise and could not have been acted upon in any manner. It has been rightly argued that besides this compromise was in violation of the provisions of the Hindu Law. Support was obtained in the observations in Nalini Kanta Sen v. Monaranjan Prasad Barma (P L D 1967 Dacca 155) that the Court has to be satisfied on the basis of a lawful agreement that a suit has been adjusted wholly or fn part before ordering such lawful agreement or compromise to be recorded and passing a judgment in accordance with it.

7. The other ground urged on behalf of the appellant that the compromise dated 12th December 1961, was illegal and ineffective even by virtue of section 23 of the Contract Act as it was opposed to the Hindu Law. Reliance was placed on Smt. Sabitri Thakurain v. Mrs. F. A. Savi and others (A I R 1933 Pat. 306) and the pertinent observations that Order XXIII, rule 3, C. P. C. requires that the agreement or adjustment should be lawful; that "lawful" means lawful within the meaning of the Contract Act, that is to say, the rule requires an agreement which is legally enforceable, but not necessarily one that is specifically enforceable and that in order to enable the Court to record a compromise the terms, which are to be complied with after the decree, should be specifically enforceable under the Specific Relief Act. See also Krishnan Nair v. Rayarappan Nair and others (A I R 1959 Kerala 130) which discusses the entire implication arising out of Order XXIII, rule 3, in reference to a lawful agreement and one that is vitiated by fraud, holding that the word "lawful" in Order XXIII, rule 3, refers to agreements which in their very term or nature are not "unlawful" and may, therefore, include agreements which are voidable at the option of one of the parties thereto because they have been brought about by undue influence, coercion or fraud and that a contract which is brought about either by undue influence, misrepresentation or fraud is under section 19 (a), Contract Act, merely voidable and not absolutely illegal or unlawful. In some respects this ruling dissented from the observations of Tayabji, J. in Sadajiwatlal v. Sm. Chandrani (A I R 1946 Sind 81), where a `lawful agreement' means to be an agreement legally enforceable under the Contract Act, the validity of compromise being disputed, the Court was not bound by compromise and can look beyond the terms of the compromise before recording the same. Tayabji, J., was of the view that the words "lawful agreement" in Order XXIII, rule 3, mean exactly the same thing as the words "an agreement enforceable by law" in section 2 (h), Contract Act. It was argued in terms of section 23 of the Contract Act, that the will, Exh. 24‑B was in violation of the inheritance of the Hindus and that, therefore, the appellant was not competent to institute legal proceedings against the respondent on its basis and obtain favourable orders by misrepresentation and by inducing the respondent to enter into a compromise, the latter believing at the time of the compromise that the will was a valid one enforceable in law. In Pan Kuer and others v. Ram Narain Chowdhury and others (A I R 1929 Pat. 353) it was observed that an:‑- "Agreement attempting for all times to alter the Hindu Law of Succession is unenforceable as it is not competent for owners of property to eater into it." It is thus quite clear that the widow Gobindi Bai was not competent to execute a will in favour of the appellant in view of her life interest in the property left behind by her husband Radhomal and that the will amounted to an alteration of the Hindu Law of Succession and was in contravention of the Hindu Women's Rights to Property Act restricting the powers of transfer of properties inherited by a widow from her deceased husband. The concurrent findings on the facts disbelieving the execution of the will by Gobindi Bai were substantial and having been successfully refuted by the learned counsel for the respondent. It would appear that at a later stage during the proceedings of the appeal before the learned District Judge, the appellant produced what was purported to be another will unregistered allegedly made by deceased Radhomal in favour of Gobindi Bai on the 28th of June 1951, in the year that he died. The learned District Judge refused to accept this document for consideration on the ground that if it was really in existence before it was produced during the first Appellate proceedings; it was unlikely that the deceased Gobindi Bai the legatee, would have been unaware of it for 9 years and it was important that she had not referred to her character as legatee in her application to the Assistant Custodian, Evacuee Property, Jacobabad, for a declaration that her husband's property was non‑evacuee when she claimed as a legal representative of Radhomal which stand was supported by the appellant and one Vishnomal who made statements before the City Survey Officer and that it was nowhere then stated that Radhomal had left a will. Even at the time of the execution of the will in dispute, Exh. 24‑A, no mention was made of Radhomal's previous will nor in the ejectment proceedings and it was therefore rightly observed that all of a sudden this document had crept up after Exh. 24‑A had failed in its object. The explanation given for its unexpected recovery was also characterised as unconvincing. I agree, with the finding that the earlier alleged will of Radhomal was not a genuine will and at that stage was a futile attempt to fill up the lacuna in the case of the appellant. In State of U. P. v. Manbodhan Lal (P L D 1958 S C (Ind.) 170) their Lordships observed that "It is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage and to fill in gaps." In the present case the attempt to do so was obviously dishonest. The findings of the Courts below, therefore, on issue No. 9 were entirely justified.

8. Issue No. 10.‑--This issue refers to the question of fraud which according to the respondent had been played on him by the appellant in the context of the will and the compromise dated 12th December 1961. The case of the respondent was that he was given to understand that the will existed whereby the premises in dispute had been lawfully transferred to the appellant and believing this he entered into the compromise in respect of the rent application before the Rent Controller on the assurance that the legality of the will be proved to him at a later stage. Appellant believed the will to be a genuine document; thereafter no attempt was made to convince the respondent of the promise by the appellant. It is clear from the objections raised by the respondent at the earliest stage before the Rent Controller that he had definite suspicions about the will which had been produced by the appellant. In Thangachi Nachial and another v. Ahmed Hussain Malumiar and others (A I R 1957 Mad. 194) it was observed that "In the very nature of things, fraud is secret in its origin and inception and the means adopted for its success and fraudulent motive or design cannot be proved to the very hilt and it should be inferred from the circumstances placed before the Court. Each circumstance by itself may not mean much, but taking all of them together, they may reveal a fraudulent or dishonest plan." In re: London & Globe Finance Corporation Limited ((1903) 1 Ch. 728) at p. 732 Buckley, J. observed as follows:‑ "To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action." In the context that the suspicions of the respondent regarding the will had been initially aroused and so stated at the very out set of the dispute between the parties, it has been rightly held by the Courts below that it was necessary and imperative that somehow the respondent should be made to agree to a compromise and admit the appellant to be the owner of the property and attorn to him as his landlord. An important circumstance is that although in the rent proceedings the claim of the appellant against the respondent towards the arrears of rent was Rs. 4,551.60, the matter was compromised for Rs. 665.00, only and the Courts below have, therefore, rightly, concluded that if the claim of the appellant was valid or based on legally supported title, he would not have affected the settlement by giving up a large portion of his claim and that this forfeiture of the claim had indeed acted as an inducement to the respondent to enter into the compromise. It has been, therefore, justifiably argued that the acceptance of the compromise by the appellant reveals his anxiety for some settlement to protect his property. For reasons already given the compromise dated 12th. December 1961, was not only unenforceable in law but was made on the basis of false inducement and representations to the respondent, and the Courts below have, therefore, in dealing with this issue in detail rightly held against the appellant by upholding that the compromise is liable to be declared as of no, consequence on the additional view of the law in respect of Gobindi Bai and her widow's estates. I, therefore, uphold the concurrent findings that the appellant under law was not entitled to institute any proceedings on the basis of a will which has note been proved to be a genuine will, the legality of which is certainly not beyond doubt and highly suspicious and the Courts below were justified in holding against the appellant on this issue also.

9. The other issues involved in the main suit is issue No. 1 as to the appellant's right to sue in criminal proceedings under section 448, P. P. C. filed by the appellant against the respondent in which the trial Court acquitted the respondent. The respondent is in possession and occupation of the disputed premises since the lifetime of Radhomal, Gobindi Bai's husband. This position was accepted by the appellant as indicated in the proceedings between the parties before the Rent Controller. In the context of the admitted circumstance that the appellant had dispossessed the respondent and afterwards restored possession to him; and the respondent was and continued to be in possession of the property in dispute and that the appellant's contention of being the owner of the property had not been established, under section 42 of the Specific Relief Act the respondent was fully competent to g institute the suit for a declaratory relief in respect of the appellant's title or legal character to the property. This was the view taken in M. A. Maser v. Chairman, Pakistan Eastern Railways (P L D 1965 S C 83) and in Nalini Kanta Sen v. Monoranjan Prasad Barman (P L D 1967 Dacca 190). The Courts below, therefore, have rightly held that the respondent had the right to sue the appellant.

10. Issue No. 2.‑--It is obvious that if the decree against the respondent by lawful compromise was to be established it would operate as res judicata in subsequent two suits when the matter directly and substantially in issue was the same. The points however, involved were different as the point in issue was fraud in connection with the will which has been proved to be unlawful and of no legal binding effect which was not the issue in the proceedings before the Rent Controller, who recorded the compromise with regard to the arrears of rent due from the respondent. Besides, in those proceedings three more persons along with the respondent had been joined as tenants and the Rent Controller was not obliged in the circumstances nor was within his jurisdiction to make a detailed enquiry about the validity of the will, only a civil Court being competent to enter into the question of fraud. For these reasons, it is quite clear that the compromise dated 12th December 1961, could not operate as res judicata and the respondent was fully competent to question the validity and the authority under which the appellant had instituted the rent proceedings against him and the point of res judicata was, therefore, rightly overruled by the Courts below.

11. Issue No. 3.‑The question of estoppel of the suit against the respondent has also been held to be without substance for the same reasons as given in the discussion on issues Nos. 9 and 10 with regard to compromise and the will. It has also been argued that the compromise made before the Rent Controller which is not a civil Court does not bar proceedings before a civil Court which is the only competent Court to go into the question of entitlement and the legality and the validity of the agreement apart from whether the basis on which the agreement was made, namely, the will was itself fraudulent or otherwise.

12. Issue No. 4.‑--This issue was not pressed by the appellant before the First Appellate Court and was dropped.

13. Issues Nos. 5 and 7.‑These issues were also dropped by the appellant in the trial Court.

14. Issue No. 6.‑--I have already given my reasons for agreeing with the finding that the will was a nullity and the compromise agreement was unlawful. In consequence the decree passed on the compromise will be of no legal effect and becomes null and void. Hence the concurrent finding on this issue.

15. Issue No. 8.‑Illustration (g) to section 42 of the Specific Relief Act is material to this aspect of the case and shows that when "A is in possession of certain property and alleges that he is the owner of the property requires A to deliver it to him. A may obtain a declaration of his right to hold the property." In this context, therefore, respondent was rightly held to be within his right to file a suit against the appellant. The suit consequently filed by the respondent was clearly maintainable and the decree was rightly granted and confirmed by the learned District Judge.

16. Issue No. 11--‑This follows the findings on other issues in favour of the respondent by the Courts below.

17. Issue No. 12.‑--In consequence of the findings on this issue it was rightly found that the respondent was entitled to a decree for declaration that the will was illegal and ineffective conferring no right of ownership of the premises in dispute upon the appellant and that the compromise dated 12th December 1961 was void and inoperative in law having been obtained by fraud and further ordering the appellant to refrain from interfering with the possession of the respondent.

18. It is necessary to state that in view of the factual and the legal aspects discussed by the Courts below which have been confirmed that the respondent was not liable for the arrears of rent amounting to Rs. 728.83 claimed by the appellant, and that the appellant having failed to establish his right over the shop in dispute occupied by the respondent and others his claim being merely based on the compromise arrived at between the parties, the finding by the learned Civil Judge that the appellant could not institute the suit for recovery and possession of the shop premises was a correct finding. The appellant's own possession was, therefore, illegal and without any lawful authority and the question, therefore, of his being entitled to the benefit of section 9 of the Specific Relief Act did not arise.

19. For these reasons I agree with the concurrent findings of the Courts below in all three matters against the appellant/ applicant and dismiss these two appeals and revision with costs. Appeals and revision dismissed.