JUDGMENT

Sanderson, C.J. - This is an appeal from the judgment of my learned brother, Mr. Justice Greaves, whereby he dismissed an application by one Dooly Chand Srimali to record certain terms of settlement in the suit.

2. The ground upon which my learned brother decided this case was that in recording a settlement he must be satisfied without any shadow of doubt that the parties intended to settle the disputes and that they understood and comprehended that they were so doing and that the terms wore terms to which they assented and agreed. The learned Judge then expressed himself as not being satisfied that this was so in the present case : and, consequently, the application was dismissed.

3. The learned counsel, who appeared for the appellant Dooly Chand, directed his attention to this part of the case in opening the appeal. But the learned Counsel, for the respondent, Sir Binode Mitter, took certain; points which go to the jurisdiction of the learned Judge and to the procedure which was adopted in this case - points to which I shall refer presently.

4. The learned Counsel for the respondent frankly admitted that if this appeal depended upon the point which had been urged by the learned Counsel for the appellant in his opening and upon which the learned Judge decided the matter, he would have a strong case to meet. As to that part of the case I desire to express no opinion, because we did not hear Sir Binode Mitter the learned Counsel for the respondent's argument upon that part of the case. But I desire to make it clear that the decision which we are about to give in this appeal is not to be taken as prejudicing any rights of the appellant which he may have, of enforcing the agreement in other proceedings, which he may be advised to take.

5. The first point on which the learned Counsel for the respondent based his argument, was that the agreement which was arrived at in this case could not be recorded because of the terms of Order 23, Rule 3 of the Civil Procedure Code; and, for the purpose of considering this question, it is necessary to state certain facts. The suit was brought by Dooly Chand against two defendants, Mohanlalji and Gangadharji. Gangadharji was the father of Dooly Chand and Mohanlalji. Gangadharji had one other son whose name was Poonum Chand who was dead at the time of the institution of this suit. Poonum Chand left a widow called Mt. Chimni Bibi, and it was alleged that Chimni Bibi had adopted a son who was called Ramnarain. It is to be noted that neither Chimni Bibi nor Ramnarain was made a party to the suit. In paragraph 8 of the plaint the plaintiff alleged:

The defendant Mohanlal Srimali in or about the month of December, 1920, agreed that partition should be effected of the joint estate between the plaintiff and the defendants as also his infant son one Ramnarain Srimali, who is alleged to have been adopted by Musammat Chimni.

6. Paragraph 9 of the plaint further alleged that

the plaintiff has since discovered that the said Ramnarain Srimali is not the adopted son of the said Mt. Chimni, but in fact the defendant Mohanlal Srimali forced the said Mt. Chimni to adopt his said son, but the said Mt. Chimni did not validly consent to this adoption and in any event the plaintiff submits that the said adoption is illegal, void and inoperative against the plaintiff.

7. So that the plaintiff's case was that the only persons who were entitled to a share on the partition of the joint estate were the plaintiff himself, his father Gangadhar and his brother Mohanlal : and, the Draper in his plaint was that there should be a declaration that the plaintiff was entitled to a one-third share or part of the joint estate and that each of the defendants was entitled to a one-third share or part thereof.

8. The suit was not tried, but the three parties to the suit agreed that the matters in difference between them should be referred to arbitration : and, consequently, they made an application to the Court, and the Court made an o