P L D 1959 (W (PLP)

Date of hearing : 1st April 1959. Umar, the father of Lal Din appellant in this regular second appeal, was the owner of 307 kanals and 3 marlas of land in Chak No. 430/J. B. He died on the 8th of February 1911 and his land was mutated in favour of the appellant and his con sanguine brother Sardar Muhammad in equal shares. Sardar Muhammad died in 1914 and a mutation of the share standing in his name was sanctioned in favour of Mst. Hakim Bibi, his mother, in accordance with the customary law which was appli cable at that time. In December 1949 Mst. Hakim Bibi made an oral gift of the whole of the property in favour of Mst. Sardar Bibi, the sister of Sardar Muhammad and 'a mutation in respect of this gift was sanctioned on the 10th of July 1949. The present appellant filed an appeal against this mutation to the Collector. This appeal was being prosecuted on behalf of the appellant by his son Bashir Ahmad as his attorney. On the 16th of December 1950 a compromise was submitted to the learned Collector in which it was recited that the parties had compromised and 1 /6th of the property in dispute was to be given to the appellant and the rest, i.e., 5/6th was to be retained by Mst. Sardar Bibi as full owner. It was stated in the compromise that a mutation may be sanctioned in accordance with the Shariat Act. It may be stated here that the Muslim Personal Law (Shariat) Application Act had come into force in March 1948 by virtue of which succession was he forth governed by Personal Law instead of custom. On the basis of the statements of the parties the learned Collector passed an order saying that as the compromise was in accordance with the shares calculated according to Shariat, he would accept the compromise and order a mutation in accordance with it. He directed that the gifted land be mutated 5/6th in the name of Mst. Sardar Bibi and the remaining 1/6th in the name of the present appellant.

2. To challenge the compromise and the order passed on its basis, the present appellant filed a suit (not the present suit) on the 12th of May 1951, impeaching the agreement on the grounds that Bashir Ahmad was a minor and had colluded with the other party and claiming a declaration to the effect that the appellant wa.; entitled to one‑third of the land left by Sardar Muhammad on the death of Mst. Hakim Bibi defendant, because the gift made by Mst. Hakim Bibi in favour of Mst. Sardar Bibi was beyond her powers, Defendants to that suit, i.e., Mst. Hakim Bibi and Mst. Sardar Bibi resisted it on various grounds to which it is not necessary to refer. It is sufficient to say that the learned Judge who decided that case found that the appellant would be entitled to a share of one‑third on the death of Mst. Hakim Bibi but that he was bound by the compromise which had been entered into by Bashir Ahmad who had the authority to enter into the compromise on his behalf. While recording this finding, the learned Judge also made certain observations which have led to the present litigation. After saying that under the Muslim Personal Law (Shariat) Application' Act the plaintiff was entitled to one‑third, the learned Judge went on to say :‑ "This circumstance however does not entitle the' plaintiff to ignore the compromise altogether. He can apply to the Collector for a suitable amendment of the compromise or for a review of his order so as to have his share corrected. But a contract cannot be avoided on the ground of mistake as to any law (vide section 21 of the Indian Contract Act). Hence the compromise is not void or voidable because Bashir Ahmad agreed to accept a lesser share than was due to the plaintiff, under an erroneous advice on a law point. "There is no evidence to show that Bashir Ahmad was a minor on the date of compromise. Moreover according to section 184 of the Indian Contract Act even a minor can act as an agent so as to bind his principal. "The result is that the plaintiff was bound by the compromise and was now estopped from challenging the validity of the gift in dispute. The issues are decided accordingly. "In view of the above I dismiss the suit with costs".

3. In accordance with the suggestion made in this judgment the appellant applied to the Collector for a review of his order passed in the appeal against the mutation. The learned Collector held that the intention of the previous order was to give the parties their shares according to Shariat and that the award of one‑sixth' to the appellant was based on a miscalculation of the shares of the parties under the Shariat Act, and therefore, he could review that order. Reviewing the order, he mutated the land left by Sardar Muhammad, 2/3rd in the name of Mst. Sardar Bibi and one‑third in the name of the appellant.

4. At this Mst. Sardar Bibi filed the suit out of which this appeal arises for a declaration that the order of the Collector passed on review was void and could not affect her right to 5/6th of the property left by Sardar Muhammad. The defendant, i.e., the appellant, pleaded that the agreement was not binding on him at all because he could not give up his right to inherit the property of Sardar Muhammad before the death of Mst. Sardar Bibi. Mst. Sardar Bibi respondent pleaded, on the other hand that the previous decision was res judicata. The trial Court decreed the suit and the learned Senior Civil Judge, on appeal, upheld the decision. In this appeal admittedly there are only two points which arise for decision. The first is whether the decision in the previous suit is res judicata, and the second whether the compromise is binding on the appellant.

5. Were it not for the plea of res judicata I would have had little difficulty in holding that the compromise is not binding on the appellant. I had an impression at an earlier stage of the arguments that Bashir Ahmad, attorney of the appellant, had agreed to take one‑sixth share during the lifetime of Mst. Hakim Bibi in lieu of one‑third on the death of Mst. Hakim Bibi, Had he entered into such an agreement, it might have been enforceable, at least on the death of Mst. Hakim Bibi, but a perusal of the two orders passed by the learned Collector and the statements contained in the compromise has left no doubt in my mind at all that what the parties intended to do was to distribute the property in accordance with the shares to which they would have been entitled under the Muslim Law on the death of Mst. Sardar Bibi. The learned Collector had stated in his order when he accepted the compromise that he was acting on the compromise only because it 'was in accordance with the shares of the parties according to Muslim Law. In the petition of compromise it had been stated that mutation was to be sanctioned in accordance with the Shariat Act. In the order on the application for review the learned Collector had again stated that the intention of the order under review was only to distribute shares under the Shariat Act and it was due to a miscalculation of shares that one‑sixth was entered in the name of the appellant. If the parties intended to distribute the property only according to their shares under the Personal law, the agreement would be binding only to this extent that the parties would get their shares under Muslim law. In fact, it cannot be called a compromise or an agreement for the parties simply agreed to have what they thought was their right under the law. In any case, it is the real intention of the parties that is to be given effect to, and on the basis of the agreement it cannot be claimed that Mst. Sardar Bibi was entitled to 5/6th instead of 2/3rd share. Section 21 of the Contract Act, to which a reference has been made during argu ments does not in my opinion affect the matter. This is not a case where the agreement was caused by a mistaken view of law. It is a case where the intention of the parties was not correctly put in the deed which incorporated it because of a misapprehension. It is a case where the agreement only was that the parties will get what they are entitled to under Muslim law. When the agreement is that parties will get what they are entitled to under the law, the agreement is not hit by section 21 just because in the calculation of the legal rights some mistake is made. Also, if Mst. Sardar. Bibi was aware that the appellant's share under Muslim law was one‑third and still she got it recorded that he was to get one‑sixth, she would be guilty of fraud and misrepresentation and the agreement would be void on that ground. If she too was under a mistake as to the shares of the parties, then the assumption which was the basis of the agreement was incorrect and there would be no valid agreement. In any case, the parties had really agreed only to this that an entry was to be made in‑ the revenue records in accordance with their shares under the Muslim law and it is this agreement which has to be given effect to.

6. However, although if I were to decide on .the merits I would hold in favour of the appellant, I do not see how the appellant can get out of the bar of res judicata. The previous suit was filed in order to impeach the agreement and to get a declaration that the rights of the plaintiff were unaffected by the gift made by Mst. Hakim Bibi in favour of Mst. Sardar Bibi. The Court decided /that the present appellant was bound by the compromise and was not entitled to challenge the gift. In the face of this finding it is not open to the appellant to say that he is not bound by the agreement or that the gift does not affect his rights. It is true he was misled by the suggestion in the judgment that the Collector should be approached. Had it not been for that suggestion he might have filed an appeal against the decree in the previous suit and might have succeeded in appeal, but although it is on account of the suggestion by the Court that he is being prejudiced, I do not see how I can help him. He did not appeal against the decision which became final and not liable to be challenged in any Court. Learned counsel for the appellant has cited before me three cases in support of the proposition that a pure question of law does not become res judicata : (I L R 49 All. 911, A I R 1932 Pat. 37 and A I R 1939 Pat.

933. These judgments, on a perusal of them, do not even support the proposition that learned counsel is putting forward, but I am aware of some judgments laying down that a decision on a pure question of law is not res judicata. I am quite prepared to accept and I would lay down myself that on a pure question of law, apart from the right which was in dispute in a particular suit, there can be no res judicata, but it does not follow that rights 6 in respect of particular property which is in dispute in a particular case can be reagitated on the ground that the decision proceeds on a wrong view of law. Suppose a suit is filed for inheritance on the death of a particular person between the sister and a distant collateral and it is held that the sister is entitled to the whole of the property in accordance with the Muslim law even in the presence of that collateral. If the question of inheritance arises again in respect of the death of another person, the pure question of law as to whether the sister is entitled to succeed to the whole property in' the presence of a collateral will not be res judicata, but this is something entirely different from saying that even in respect of the property which was the subject‑matter of the first litigation a question can ever be raised that the sister was entitled not to the whole of it but to a part. So far as a particular cause of action is concerned, reagitation of the rights in respect of it is closed for ever as between the parties by the decision of the suit which is based on that cause of action.

7. The effect of the previous decree is that if it is the present appellant who is alive on the death of Mst. Hakim Bibi ha will get only. 1/6th of the land and no more. However if he is not alive the next heir will not be bound by the compromise or by the C decision in the previous suit and as between that heir and Mst. Sardar Bibi the rights will be decided without reference to the compromise or the previous suit because that heir will not derive his title from the appellant.

8. The appeal is dismissed but the parties will bear their own costs throughout. A. H. Appeal dismissed.