Sir John Wallis.-

Disputes about the dispositions and contracts of people of advanced age and failing powers are always difficult cases to decide, and the difficulty is greatly increased when, as in the present case, the record has swollen to enormous size owing to the way in which the examination of the witnesses on commission was protracted, assuredly not in the interests of the parties. A scandalous instance of this abuse is to be found, as observed by the learned Judges of the High Court, in the examination of Ananda Roy, the principal witness for the plaintiffs, which takes up two hundred and twenty-six pages of the record, and contains twelve hundred and fifty questions and answers, most of which, as admitted at the trial by the vakils on both sides, were quite irrelevant to the suit.

In another appeal with an enormous record from the same High Court it was recently stated that the cross-examination on commission of a pardahnashin lady lasted for a hundred days. In their Lordships' opinion it is imperative that an abuse of this kind, which enormously increases the costs of litigation without any corresponding benefit to the parties, should be checked, and it would appear to be clearly within the powers of the High Courts to direct an inquiry with a view to disciplinary action in flagrant cases which come under their notice at the hearing of appeals.

The question in the present case is whether the plaintiffs are entitled to obtain specific performance of a registered bainapatra or agreement to sell the suit properties executed by Kali Narayan, the father of defendants 1 to 4, who have been brought on after his death with his other descendants in the male line as his legal representatives, and the main defence is that he was then of unsound mind for the purpose of making a contract, within the meaning of S.12, Contract Act, as being, at the time he made it, "incapable of understanding it and of forming a rational judgment as to its effect upon his interests."

There were also allegations of conspiracy on the part of the plaintiffs, as to which it was admitted at the hearing of the appeal in the High Court that there was no evidence.

The plaintiffs' case, which has been accepted by the High Court is, on the face of it, a perfectly straightforward one. They are traders who had made money, and coming to know in the middle of 1920 that the suit properties were for sale, they entered into negotiations for purchasing them. The properties consisted of two small zamindaris, one in the Dacca and the other in the Tipperah District, together with a five annas share of a shikmi taluk in one of these zamindaris, which Kali Narayan, the zamindar, had acquired, the remaining eleven annas belonging to the Majitpur Babus, who were the shikmi talukdars. The Majitpur Babus were naturally anxious to regain the sole ownership of the taluk, and came forward with counter-offers. Ananda Chandra Roy, an old friend of Kali Narayan, who was advising him about his affairs, was for asking thirty-five years' parchase, subject to certain deductions. This was apparently a very good price, and, probably, as usually happens, a little more than was hoped for. The offers of the plaintiffs and the Babus fell far short of this, and the negotiations went off. In October the properties were publicly advertised for sale, and in December the plaintiffs came forward with a new offer of thirty-two years' purchase. It was refused, and they were going away when Kali Narayan's wife suggested that they should increase their offer to thirty-three years' purchase. Kali Narayan accepted this offer subject to Ananda's approval, which the plaintiffs obtained. Ananda says he thought it a very good price, as it apparently was. A bainapatra or agreement to sell was then drawn up by Basanta, the estate lawyer, and was executed by Kali Narayan, who signed in eleven places. It was witnessed by Basanta, the estate lawyer, by Bhupati, Narayan's son, who was residing in the house, and now