Judgement

Appeal (No. 52 of 1927) by special leave from an order and decree of the High Court (December 18, 1924) reversing an order and decree of the Second Subordinate Judge, Hoogly (March 31, 1924).

The appeal arose out of a suit for partition in the Court of the Subordinate Judge instituted by the appellants against the respondent, a pardanishin lady. Upon an interlocutory application by the respondent for the appointment of a receiver, counsel representing the parties respectively settled the whole suit upon the terms of a compromise. The appellants applied to the Subordinate Judge under Order XXIII., r. 3, for a decree in the agreed terms ; the respondent objected on the ground that her counsel had no authority to enter into the compromise upon her behalf.

The facts of the case appear fully from the judgment of the Judicial Committee.

The Subordinate Judge ordered that the compromise be recorded and a decree made in accordance therewith.

The order and decree were set aside by the High Court by a judgment delivered by B. B. Ghose J. and concurred in by Walmsley J. The learned judge, after referring to the rule in England regarding the authority of counsel to settle a case without reference to his client, said "I should be extremely reluctant to hold, unless compelled to do so by any binding authority, that a rule of practice in England which has its roots in different traditions and environments should be applied in this country, particularly in the mufossil where people never heard of any such practice.....I need I not say anything further on the point, as learned counsel for the plaintiffs did not rely upon the general authority of counsel to compromise a case." Upon the facts of the case the learned judge held that the defendant had given no authority to consent to a compromise; as she was a pardanishin lady strict evidence of authority by her was necessary. There was, he said, no evidence of ratification by her.

1929. Oct. 24, 25. Upjohn K.C. and Parikh for the appellants.

De Gruyther K.C., Dunne K.C. and Ramsay for the respondent.

[Reference was made to Strauss v. Francis (( 1866) L. R. 1 Q. B. 379.); Shepherd v. Robinson ([ 1919] 1 K. B. 474.); Jang Bahadur Singh v. Shankar Rai (( 1890) I. L. R. 13 A. 272 (F. B.).) ; Nando Lal Bose v. Nistarini Dassi (( 1900) I. L. R. 27 C. 428.); Nilmoni Chaudhuri v. Kedar Nath Daga (( 1922) I. L. R. 1 P. 489.); Askaran Chowtmal v. E. I. Ry. Co. (( 1925) I. L. R. 52 C. 386, 391.) ; Bhut Nath Sircar v. Ram Lall Sircar (( 1900) 6 Cal. W. N. 82.); Jagapati Mudaliar v. Ekambara Mudaliar (( 1898) I. L. R. 21 M. 274.); Thenal Ammal v. Sokkammal (( 1917) I. L. R. 41

M. 233.) ; and Farid-un-nisa v. Mukhtar Ahmad. (( 1925) L. R. 52 I. A. 342.)]

1930. Jan. 23. The judgment of their Lordships was delivered by

LORD ATKIN. This is an appeal from the High Court of Judicature in Calcutta, who, differing from the Subordinate Judge of Hoogly, refused to record an alleged memorandum of compromise and to make a decree in accordance therewith.

The disputed compromise was made in a partition suit in which the present appellants were plaintiffs and the present respondent was defendant. The question at issue is whether an agreement of compromise made between the plaintiffs and counsel for the defendant bound the defendant. It involves important considerations as to the authority of an advocate in India to bind his client.

The parties are members of a Hindu family governed by the Bengal school of Hindu law. The suit related to the joint property inherited from the paternal grandfather of the plaintiffs, one Ishan Chandra Mitra, who had died in 1900. The plaintiffs were the children of the two elder sons of Ishan Chandra Mitra. The defendant was the widow of the third son, Charu Chandra Mitra, who had succeeded to the share of their unmarried son, who had died in 1920. She was a pardanishin lady. The plaint filed in April, 1923, alleged that the property was in the joint possession of the three brothers, a