# Slll6tle• Si gh v. Ma/roraja Bah•dur of Gi4/raur

- **Citation:** [1951] 1 S.C.R. 548
- **Court:** Supreme Court of India
- **Decided:** 1951
- **Case number:** CIVIL APPELLATE }UIUSDICTION. Civil Appeal No. 78 of 1950
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/slll6tle-si-gh-v-ma-roraja-bah-dur-of-gi4-raur-110
- **Pages:** 13

## Headnote

1951
Slll6tle• Si gh
v.
Ma/roraja
Bah•dur of
Gi4/raur
Fazl All J.
548
SUPREME COURT REPORTS
[1951]
the statement of case filed in this court on behalf of
the appellant, it has not been stated that there is no
evidence to show that the plaintiff was
in possession
of the disputed land or the land mentioned in schedule
U within 12 years of the suit.
Thus both the points urged in this appeal fail. There
can be no doubt that the entire tenure has passed to
the plaintiff by the sale, but, apart from this fact, it is
well-settled that a zamindar is presumed to be the
owner of the underground rights in the
tenancies
created by him in the absence of evidence that he
ever parted with them: [See Hari Narayan Singh v.
Sriram
Chak_ravarthi(1) and
Durga Prasad Singh v.
Braja Nath Bose(')].
The result is that this appeal fails, and it is dismissed
with costs.
Appeal dismissed.
Agent for the appellant : R. R. Biswas.
Agent for the respondent : R. C. Prasad.
BISHUNDEO NARAIN AND ANOTHER
"·
SEOGENI RAI AND JAGERNATH
[Smu liAB.ILAL
KANIA
C. J.,
PATANJALI SAsTRI,
- MEHAR CHAND MAHAJAN, S. R. DAs and
VIVIAN BOSE JJ.]
Civil Procedure Code (Act V of 1908), 0. 32, r. 7-Suit for partilion to which minor is party-Compromise by guardian-Sanction
of Court not obtained before entering into agreement-Validity of
decree-Suit by minor to set aside decree-Mere unfairness of divinon, effect of.
Where a Court has sanctioned an agrccm.cnt or compromise in
a suit to which a minor is a party after satisfying itself that it
is for the minor's benefit, the decree based on the agreement or
compromise cannot be held to be invalid or not binding on the
minor merely because the sanction of the Court was not obtained
by the next friend or guardian before he began to negotiate for
the agrccmC11t or compromise.
(I) 37 I.A. 136
(2) 39 I.A. 133
S.C.R.
SUPREME COURT REPORTS
549
Awadesh Prasad Missir v. Widow of Tribeni Prasad Missir (I.L.R.
19 Pat. 343) disapproved.
·
The rule that in the case of partition between. members of a
joint Hindu family one of whom is a minor, if the minor, on obtaining majority, is able to show that the division was unfair and
. unjust, the court will set it aside, does not apply to decrees in
partition suits in which the minor was properly represented before
the court. The 'decree is as binding on him as on the adult parties
unless the minor can show fraud or negligence on the part of. his
friend or guardian ad litem.
CIVIL
APPELLATE
}UIUSDICTION.
Civil
Appeal
No. 78 of 1950.
Appeal against the Judgment and decree dated the
1st December, 1942, of the High Court of Judicature at
Patna (Manohar Lal and Shearer JJ.) in F. A. No. 188
of 1939 arising out of a Decree dated the 23rd December, 1937, of the Subordinate Judge at Saron, Chapra,
in Suit No. 48 of 1936.
H. /. Umrigar for the Appellant.
S. P. Sinha (S. N. Mukherjee, with him) for the
Respondent No. 1.
1951. May 4. The Judgment of the Court was delivered by
'
BosE J.-This is a plaintiffs' appeal from a judgment and decree of the. High Court of Judicature at
Patna. Their Lordships of the Privy Council had
granted special leave and the matter has been transferred to this Court.
The suit out of which the appeal arises was for a
declaration tliat a compromise decree, made in a previous suit for partition, does not bind the
plaintiffs.
The learned counsel for the plaintiffs-appellants also
contends that he asked for partition in the present case.
But that is a matter of . doubt.
The facts in brief are as follows :
The parties are members of a family whose cc>mmon
ancestor was one 1Moti Rai. A long genealoiPcal tree was
attached to the plaint but it is not necessary to reproduce more than the following :
.
1951
Bishundeo
Narain
and Another
'!/.
Seogeni Rai
and lagernath •
550
SUPREME COURT REPORTS
[1951}
Moti Rai
I
Bha,an Rai
HuariRai
Ghuahull,Rai
rFirangiJ Rai
J .
Seogcni Rai /
Deft. No. I
I
Charichan Rai
I
Bikram
I
Rai
sons
sons
Defts 3,
4 & s.
~-~-----,
Bisundeo Rai
Gaurisbankar Ra
Plff. No. I
PUf.

## Text

1951
Slll6tle• Si gh
v.
Ma/roraja
Bah•dur of
Gi4/raur
Fazl All J.
548
SUPREME COURT REPORTS
[1951]
the statement of case filed in this court on behalf of
the appellant, it has not been stated that there is no
evidence to show that the plaintiff was
in possession
of the disputed land or the land mentioned in schedule
U within 12 years of the suit.
Thus both the points urged in this appeal fail. There
can be no doubt that the entire tenure has passed to
the plaintiff by the sale, but, apart from this fact, it is
well-settled that a zamindar is presumed to be the
owner of the underground rights in the
tenancies
created by him in the absence of evidence that he
ever parted with them: [See Hari Narayan Singh v.
Sriram
Chak_ravarthi(1) and
Durga Prasad Singh v.
Braja Nath Bose(')].
The result is that this appeal fails, and it is dismissed
with costs.
Appeal dismissed.
Agent for the appellant : R. R. Biswas.
Agent for the respondent : R. C. Prasad.
BISHUNDEO NARAIN AND ANOTHER
"·
SEOGENI RAI AND JAGERNATH
[Smu liAB.ILAL
KANIA
C. J.,
PATANJALI SAsTRI,
- MEHAR CHAND MAHAJAN, S. R. DAs and
VIVIAN BOSE JJ.]
Civil Procedure Code (Act V of 1908), 0. 32, r. 7-Suit for partilion to which minor is party-Compromise by guardian-Sanction
of Court not obtained before entering into agreement-Validity of
decree-Suit by minor to set aside decree-Mere unfairness of divinon, effect of.
Where a Court has sanctioned an agrccm.cnt or compromise in
a suit to which a minor is a party after satisfying itself that it
is for the minor's benefit, the decree based on the agreement or
compromise cannot be held to be invalid or not binding on the
minor merely because the sanction of the Court was not obtained
by the next friend or guardian before he began to negotiate for
the agrccmC11t or compromise.
(I) 37 I.A. 136
(2) 39 I.A. 133
S.C.R.
SUPREME COURT REPORTS
549
Awadesh Prasad Missir v. Widow of Tribeni Prasad Missir (I.L.R.
19 Pat. 343) disapproved.
·
The rule that in the case of partition between. members of a
joint Hindu family one of whom is a minor, if the minor, on obtaining majority, is able to show that the division was unfair and
. unjust, the court will set it aside, does not apply to decrees in
partition suits in which the minor was properly represented before
the court. The 'decree is as binding on him as on the adult parties
unless the minor can show fraud or negligence on the part of. his
friend or guardian ad litem.
CIVIL
APPELLATE
}UIUSDICTION.
Civil
Appeal
No. 78 of 1950.
Appeal against the Judgment and decree dated the
1st December, 1942, of the High Court of Judicature at
Patna (Manohar Lal and Shearer JJ.) in F. A. No. 188
of 1939 arising out of a Decree dated the 23rd December, 1937, of the Subordinate Judge at Saron, Chapra,
in Suit No. 48 of 1936.
H. /. Umrigar for the Appellant.
S. P. Sinha (S. N. Mukherjee, with him) for the
Respondent No. 1.
1951. May 4. The Judgment of the Court was delivered by
'
BosE J.-This is a plaintiffs' appeal from a judgment and decree of the. High Court of Judicature at
Patna. Their Lordships of the Privy Council had
granted special leave and the matter has been transferred to this Court.
The suit out of which the appeal arises was for a
declaration tliat a compromise decree, made in a previous suit for partition, does not bind the
plaintiffs.
The learned counsel for the plaintiffs-appellants also
contends that he asked for partition in the present case.
But that is a matter of . doubt.
The facts in brief are as follows :
The parties are members of a family whose cc>mmon
ancestor was one 1Moti Rai. A long genealoiPcal tree was
attached to the plaint but it is not necessary to reproduce more than the following :
.
1951
Bishundeo
Narain
and Another
'!/.
Seogeni Rai
and lagernath •
550
SUPREME COURT REPORTS
[1951}
Moti Rai
I
Bha,an Rai
HuariRai
Ghuahull,Rai
rFirangiJ Rai
J .
Seogcni Rai /
Deft. No. I
I
Charichan Rai
I
Bikram
I
Rai
sons
sons
Defts 3,
4 & s.
~-~-----,
Bisundeo Rai
Gaurisbankar Ra
Plff. No. I
PUf. No. 2
Defis II & 12
1951
B1'shundeo
Nara;n
and Another
v.
Seogen/ Rai
and Jagernath·
Moti Rai had two sons, Bhanjan Rai and Hazari
Rai. The defendants are descended from the former
and the plaintiffs from the latter. The contesting defendant is Seogeni Rai, son of Firangi Rai. The plaintiffs
did not disclose that Mo ti Rai' s two sons were by
different wives, as that was not their case,
but that
has now been found to be the fact and was not disputed
here.
The plaintiffs' case is that the family was joint at
all material times until their father Ghughuli Rai was
forced into
a partition in the year 1924. They state
that this partition does not bind them for a variety of
reasons which, so far as they affect the present appeal,
will be detailed later.
According to the plaintiffs, the circumstances of that
partition
were as follows.
The
plaintiffs'
father
Ghughuli Rai and the first plaintiff instituted partition
suit No. 51 of 1924 against Firangi Rai and his brothers
and their descendants, that is to say, against all the
members of
Bhanjan Rai's branch who were then in
existence. The second plaintiff was not then born and
the first plaintiff was a minor.· There were also minors
among the defendants. Firangi Rai, who was the karta
of the family, through· the exercise of undue influence,
and by coercion, forced the plaintiffs' father
to compromise.
The compromise
was
grossly unfair and
unequal but. nevertheless a decree for partition followed.
This is the decree which the plaintiffs seek to challenge
here.
•
)
•
S.C.R.
SUPREME COURT REPORTS
551
It is admitted on both sides that that decree left
certain properties undivided.
The extent of those properties is in dispute but the fact that some properties
were left undivided is a~mitted.
In the year 1936 the first defendant instituted partition suit No. 29 of 1936 for partition by metes and
bounds of
that portion of the estate which was not
divided in 1924. The plaintiff's case is that the previous partition does not bind them and so the whole of
the family estate must be brought into hotch-pot and
divided
and
not merely
the
properties
which
were left undivided in 1924; also .that their share in
these properties is
greater than
the share allotted to
their father under the compromise decree. The plaintiffs
state that so long as the compromise decree in partition
suit No. 51 of 1924 stands, such a defence is not open
to them in suit No. 29 of 1936. Accordingly, they have
brought the present suit.
The first defendant alone contested and as we are
not concerned with any of the others except indirectly,
it will be convenient to refer to him thrQ.Ughout as the
defendant. He stands by the compromise and denies
that the partition effected by it was either unequal or
unfair. On the contrary,· he asserts that the plaintiffs
got much more than they were entitled to.
He also
denies
the
allegation
about
undue
influence
and
coercion.
The defendant's case about the compromise is this.
He admits that the family
was once
joint but says
that there was a separation long ago in the lifetime of
Moti Rai himself. Moti Rai's two wives could not pull
on, so the defendant's grandfather Bhanjan Rai separated from his father Moti Rai and
his step-brother
Hazari Rai.
This was some twenty years before the
suit. Ever since the two branches have had nothing in
common.
The defendant states that there were further partitions among the defendant's branch and that from time
to time members of the defendant's
branch,
as also
those on the plaintiffs'
side, have
been
acquiring
1951
Bi&hundeo
Narain
a•d Another
v.
Seogeni Ral
ti•d lagernatft.
Boie/, -
1951
B/$hundeo
N~raln
and An'1ther
v.
Seogenl Rdl
and Jage~aath·
Bose I.
552
SUPREME COURT REPORTS
[1951]
property for themselves with which the others have
no concern.
Thus, at the date of the plaintiffs' suit
(No. 51 of 1924) a number of properties stood· in the
separate names of various members of the family and
were the separate properties. The plaintiffs thus had
no right of suit at all. But in order to avoid a long
litigation and
to settle this family dispute amicably,
the defendant's father
Firangi
Rai
agreed
to give
the plaintiffs a four annas share in many of the properties acquired
by the defendant's branch after th~
first partition in Moti Rai's lifetime to which the
plaintiffs' branch had no claim at all. The defendant
claims that this is a family
arrangement which binds
all sides.
The first Court decided in the plaintiffs' favour and
decreed their claim not only for a declaration but also
for partition. It is a matter of doubt whether the plaintiffs ever claimed partition, but there is no doubt that
the properties which the learned trial judge has directed
to be partitioned were not admitted by the defendant
to be subject to partition even on the. assumption that
the plaintiffs are right in all their other allegations.
Thus, the defendant stated
that some of the properties were
non-existent, others
self-acquired
and
so
forth.
But the learned Judge, without trying any of
these issues
(the dispute is
covered by
Issue No. 9)
and without any
evidence
being
led on
the point,
directed that they be partitioned. That, of course,
cannot be upheld on any view of the case.
The defendant appealed to the High Court and succeeded.
The learned High Court Judges reversed the
decree of the trial Court and dismissed . the plaintiff's
claim.
The appeal here lies .in a very narrow compass and
can be
disposed of quite simply.
In substance only
five points were raised before us. The first concerns
Order 32, rule 7, of the Code of Civil Procedure. As
minors were parties on both sides in the previous suit,
the sanction of the Court was necessary for the compromise. On 17th November, 1924, the trial Court made
the following entry in its order sheet :-
S~C.R.
SUPREME COURT REPORTS
553.
"Selenama filed with petitions on behalf of minor
defendant for
permission to compromise. Put up on
the date fixed for order."
On the following day, viz., 18th November, 1924,
we have this-
"Petition of compromise put up. The proposed
guardian of minor plaintiff and defendants have filed
petitions for
permission
to
compromise.
Permission
granted as the compromise was for the minor's benefit."
It is contended that this is insufficient to show that
the learned Judge applied his mind to the matter and
satisfied
himself that the
compromise
was
for the
minor's benefit.
We do not think the Allahabad decision helps the
certificate which the Court is required to record need
be made. It is evident that the Judge had the provisions of Order 32, rule 7, in view. He adjourned the
case on 17th November, 1924. He realised that he had
to give permission and he realised that the compromise
had to be for the benefit of the minors. The portion of
the order reproduced
above shows that
he did give
. permission and that he was satisfied about the mlnor's
benefit. In our opinion, there was not only a technical
but also a clear compliance with the law. This objection
fails.
The next point also concerns Order 32, rule 7. The
argument here is based on a ruling of the Patna High
Court and a full Bench decision of the Allahabad High
Court. It is to this effect.
Unless the next friend or
guardian ad /item obtains the sanction of tht;
Court
before beginning to negotiate with the other side, and
certainly before committing himself to any agreement,
any subsequent sanction is invalid and the agreement
and the decree, if any, following on it is without force.
We do not think the Allahabad decision helps the
appellants. It is
reported in Hariam Bibi v. Amna
Bibi'(1). The question there was about arbitration.
A
suit had been filed in which a minor was involved. The
guardian ad !item of the
minor
agreed to• refer the
(I) I.L.R.1937 All.317.
19S1
BiJhundeo
Narai11
and A.nother
v,
Seogeni Ral
and Jagernath.
bo3e J.
1951
B/Jhundeo
Narain
a•d Another
v.
Seogenl Rai
a"d Jagernath.
IJ01e /.
554
SUPREME COURT REPORTS
[1951]
dispute· to arbitration. He did not seek the penmss1on
of the Court to enter into the agreement but did place
the matter before the Court in another way. He said
that the parties had agreed to refer the dispute to
arbitration and
asked· the
Court to sanction the
reference. The Court did so, an award followed, and a
decree was passed in terms of the award.
Now it will be seen that the learned Judge, who
sanctioned the reference, never applied his mind to the
question whether a reference to arbitration would be
for the minor's benefit under the circumstances of the:
case.
His whole attitude was that as the parties had
agreed, that was enough.
This did not comply with
the provisions of Order 32, rule 7. The learned Judge
did not even certify that the compromise was for the
minor's benefit. The Full Bench held that Order 32,
rule 7, had not been complied with and that in a case
of that kind the permission of the Court to enter into
an agreement for reference must precede the reference.
But they also held that the
omission to obtain the
necessary sanction would not make the reference and
the award and the decree nullities. It mily made them
voidable at the minor's option. That, in our opinion,
is no authority for the contention urged on behalf of
the appellants before us.
The Patna case reported in Awadhesh Prasad Missir
v. Widow of Tribeni Prasad Missir(') is.more in point.
There, the parties compromised in the High Court
without obtaining the sanction of the Court. They
then placed the concluded agreement ( concludeq, that
is to say, so far as they were concerned)
before the
Court, apparently for its approval, and the Court made
the following order :-
"We are satisfied that the terms settled between the
parties are for the
benefit of the
minor defendantsrespondents concerned."
The Court then passed a decree in terms of the compromise.
When the minors attained majority, they
sued for a declaration that the decree did not bind them
(1) 1.L.R.19 Pat. 343 at 348.
S.C.R.
SUPREME COURT REPORTS
555
on the ground that there was no proper compliance
with the provisions of Order 32, rule 7. The learned
Judges of the Patna High Court upheld the. contention
and decided that unless the guardian ad litem obtained
permission to enter into an agreement or compromise
before reaching agreement with the other side, any
subsequent sanction of the Court to a completed compromise (completed, that is to say, so far as the parties
were concerned) was not binding on the minors and the
proceedings which follow consequent on that sanction
were therefore of no avail. They accordingly granted
the minors the declaration they sought.
In our opinion, Order 32, rule 7, must be read as a '
whole. Sub-rule (2) contemplates a position where the
mandatory provisions of sub-rule ( 1) have been ignored.
In such a case, the resultant agreement or compromise
is not to be held a nullity. It is only voidable. Therefore, it is good unless the minor chooses to avoid it.
It
follows that a decree or order based on the agreement
is also. good unless the minor ch005.? to challenge it.
That is the position where there is no sanction of the
Court. Reading the two provisions together, the rule
merely means this. No next friend or guardian for the
suit can enter into an agreement or compromise· which
will bind the minor unless the court sanctions it. If the
Patna decision is meant to convey that before the
guardian even begins negotiations for compromise with
the other side, he must obtain the sanction of the
Court, we are unable to agree with that view.
The next point was put in the form of a question.
Can a minor have a compromise which effects a partition set aside on the single ground of unfairness to him?
It was argued that he can, and reliance was placed on
Balkishen Das v. Ram Narain Sahu(1) and on Mulla's
Hindu Law, 10th Edition, page 394, section 308(2) •
•
The rule laid down in Mulla's book is expressly stated
to be in cases where the partition is not effected by a
decree of a competent Court. In our opinion, that is
correct. It does not matter whether the decree was by
(1) 30 I.A.139 at ISO.
1951
Bishundeo
Narain
and Another
v.
Seogent Ra}
and Jogernath.
BoJe J,
1951
Bi,hundeo
Narain
and Another
v.
Seogeni Roi
and Jagernath·
Bo" J.
556
SUPREME COURT REPORTS
[1951)
consent or otherwise, for a decree, unless and until it is
set .aside or avoided in one or other of the ways in which
alone a
decree may be attacked, holds its force and
binds all concerned.
It is well established that a minor can sue for partition and obtain a decree if his next friend can show that
that is for the minor's benefit. It is also beyond dispute
that an adult coparcener can enforce a partition by
suit even when there are minors. Even without a suit,
there can be a
partiti~n between members of a joint
family when one of the members is a minor.
In the
case of such lastly mentioned partitions, where a minor
can never be able to consent to the same in law, if a
minor on attaining majority is able to show that the
division was unfair and unjust, the Court will certainly
set
it aside. The rule, however, does not apply to
decrees if the minor is properly represented before the
Court and the decree is as binding on him as on the
adult parties, unless the minor can
show
fraud or
negligence on the part of his next friend or guardian
ad /item. This contention also therefore fails.
We turn next to the questions of undue influence
and coercion. Now it is to be observed that these have
not been separately pleaded. It is true they
may
overlap in part in some cases
but they arc separate
and separable categories in law and must be separately
pleaded.
It is also to be observed that no proper particulars
have been furnished. Now if there is one rule which is
better established than any other, it is that in cases of
fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can
only be decided on the particular as laid. There can
be no departure from
them
in evidence. General
allegations are insufficient even to amount to an avcrment of fraud of which any court ought to take notice
however strong the
language
in
which
they
arc
couched may be, and the same applies to undue
influence and coercion. See Order 6, rule 4, Civil Procedure Code.
S.C.R.
SUPREME COURT REPORTS
557
The allegations in the plaint regarding this part of
the case are as follows. · In paragraph 13 the plaintiffs
say-'-
"That the said Firangi Rai being infuriated by the
filing of the said suit, put such a pressure upon the
father of the plaintiffs that the father of the plaintiffs
under fear of his threatend death filed a compromise
in the said suit before any written statement was filed
by Firangi Rai and other defendants."
In paragraph 15 they say-
''That the said
compromise
was
nothing but a
dictated mandate of Firangi Rai
which the father of
plaintiffs, out of sheer fear of Firangi Rai submitted
against his own free will and signed under compulsion
and coercion and undue influence of the said Firangi
Rai".
Then,
in paragraph 17
and
18
the
plaintiffs
state-
"17~ That
plaintiffs' father
being
a
man of
weak intellect and finding no help and succour from
the people of residential village or neighbourhood and
being also unaware of the details of properties of the
family could not but submit meekly
and quitely
to
the dictates of Firangi Rai who taking advantage of
his fearful
supremacy
wanted
to
have
everything
according to his own sweet wish.
"18. That even after
the
compromise
plaintiffs'
father could not get any income of the family ·properties and Firangi Rai remained the sole master of the
family appropriating every pice to himself."
We will deal with the case of coercion first It will
be seen that
the
plaintiffs case
regarding that is
grounded on the single allegation that their father was
threatened
with death.
When all
the
verbiage
is
cleared away, that
remains
as the
only foundation.
The rest, and in particular the facts set out in paragraphs 8
to 12 about the ferocious
appearance of
Firangi
Rai
and
his
allegedly
high-handed
and
criminal activities
and his character,
are only
there
1951
Bishundeo
Narain
and Anothe
v.
Seogeni Rai
and Jogemath.
Bose J.
1951
B/lhundeo
Narain
and Another
v.
Seogeni Rai
.and Jagernath•
Bose J.
558
SUPREME COURT REPORTS
[1951]
to lend colour to the genuineness of the belief said to
have been engendered in Ghughuli Rai's mind that the
threat of death administered to him was real and imminent.
But as regards the threat itself, there is not
a single particular. We do not know the nature of the
threat. We do not know the date, time and place in
which it was
administered. We do
not know the
circumstances. We do not even know who did the
threatening. Now, when a court is asked to find
that a person was threatened with
death, it is necessary to know these particulars, otherwise it is impossible to each a proper conclusion.
It was argued that it is not necessary for a plaintiff
to give particulars and if the other side is not satisfied,
there are provisions in the Code which entitle him to
ask for them. That is a grave misapprehension.
But all that apart, what is the evidence here ?
There are only three witnesses who need be considered
as the others had no personal knowledge. They are,
No. 6 Sheokumar Dube, No. 9 Bodhu Rai and No. IO
Sheonandan Prasad.
Of these, only Bodhu Rai suggests that Firangi ever
made any threat. He is not
supported by the other two and we cannot believe him.
All that the others say is that Ghughuli Rai said his
life would be in danger
without however explaining
how or why.
That is
insufficient to sustain pleas of
undue influence and coercion, particularly when
we
have the
following facts which negative these pleas:
(1) Two pleaders were engaged by Ghughuli Rai; (2)
the first draft was torn up by one of the pleaders as it
was unfavourable to his client and the draft e111bodying the compromise ultimately
accepted was substituted; (3) Ghughuli Rai refused
to sign this second
draft until it was read out to him; ( 4) this draft was
read over by the pleader who had
disapproved of the
first and was signed by him after Ghughuli Rai had
signed; (5) Ghughuli Rai relied on the compromise on
several occasions and filed suits to enforce its terms ;
( 6) he twice sued Firangi Rai himself; (7) though he
lived eleven
years
after the compromise and filed
several suits to enforce it. he never suggested that it
s.c.R.
SUPREME COURT REPORTS
559
had been brought about by coercion or undue influence;
(~) he took no steps to set it aside or question it even
after Firangi Rai's death which was two and a half
years before this suit; and (9) he did not join as a
plaintiff in this suit though he was the real person who
knew the truth. There is nothing in the evidence to
indicate when the undue influence ceased and we find
it impossible
to believe
that it could have lasted
eleven years
and even
two and a ·half years after
Firangi Rai's death.
There is also another point. The basis of the claim
is the inequality of the partition. Under the compromise, the first plaintiff and his father got those properties which stood in their names and a four annas share
in certain ·other properties. No evidence has been adduced to show the values of these various properties in
1924. For all we know, their value and the four annas
share in the other properties may have been equal to
eight annas of the entire joint· properties. We agree
with the learned High Court Judges that coercion is
not proved.
The case of widue influence suffers the same fate.
It was not separately pleaded and the evidence is the
same.
The last contention is that even if the plaintiffs fail
in all else, their
case cannot be wholly dismissed
because, admittedly, certain properties
are
still
undivided and the plaintiffs are entitled to have them
partitioned and
to be
given separate
possession of
their share.
As we remarked at the outset, it is a matter of some
doubt whether the plaintiffs sought partition in this
suit or whether they merely wanted a declaration here
that the compromise decree in the suit of 1924 does
not bind them and consequently
is no bar to their
demanding partition of the whole estate in the first
defendant's suit No. 29 of 1936.
we need not consider whether the present suit is
for partition and separate possession or not, because
there is pending a previously instituted
suit between
l9S1
Bishundeo
Narain
and Another
v.
Seogeni Rai
and lagernath·
.Bose J.
1951
Bi•hun4eo
Narain
and Another
v.
Seogenl Bal
and Jagernath.
Bose.J.
1951
Ma14
560
SUPREME COURT REPORTS
(1951]
the same parties for the same relief. It will be more
convenient and proper to have these matters decided
there. Accordingly,
we dismiss the
plaintills'
suit
with costs throughout, but make it plain that in doing
so we do not adjudicate upon their right to seek partition of such properties as they contend are omitted to
be partitioned under the compromise decree in the
pending suit.
Appeal di1mi11ed.
Agent for the appellants : R. C. Prasad.
Agent for respondent No. 1 : P. K. Chatteriee.
KARNANI INDUSTRIAL BANK, LIMITED
"·
THE PROVINCE OF BENGAL AND OlHERS
[SAIYID FAzL Au, MuKHE!lJEA and
CliANDIUSEKHAl\A AlYAR JI.)
Transfer of Property Act (IV of 1882), ss. 106, 116-Lease
for a term-Acceptance of rent for further period
before expiry of
term-New tenancy--Necessity of notice ta quit-Lessee's property
becoming property of lessor by failure to remove within time-In·
junction against removal-Whether can be granted.
The context in which the provision for acceptance of rent finds
a place in s. 116 of the Transfer of Property &t shows that what
is contemplated is that the payment of rent should be made at
such time and in such manner as to. be
equivalent to the land·
lord assenting to the lessee continuing in possession.
Where
payment is made at a time when there was no question of the
lessor
assenting
to the lessee's continuing in possession and
neither party treated the payment as importing such assent the
case does not fall within s. 116.
A lease deed was executed on the 17th February, 1928, in respect of a land for a period of ten years from 24th February, 1928
the annual rent of Rs. 6,000 being payable in advance every year.
In April, 1937, a cheque for Rs. 6,000, being the rent from 1st
April, 1937, to 31st March, 1938, was
sent by the lessee and accepted by the lessor : Held, that as the rent was paid before ~
expiry of the lease and neither party treated the payment of rent
as importing assent on the part of the lessor to allow the lessee