JUDGMENT

Rau, J. - This judgment is being delivered under peculiar circumstances which have been fully explained in our order dated 29th July 1943 on a petition for review of judgment presented by the plaintiff-respondent. We shall recapitulate them briefly here: This appeal was heard by us at great length in January last, a number of questions of law and fact being involved. The case was then set down for judgment on 29th January 1943 [See ('43) 30 A. I. B. 1943 Cal. 361--Ed.]. At the last moment however the parties informed us that they had arrived at a compromise. A petition embodying the terms was put before us and as some of the appellants were minors their guardian, who was also one of the appellants, asked for leave to enter into the compromise on their behalf, submitting that the terms were for their benefit. It may be mentioned that under these terms the appellants were to be given half of the property in suit whereas if the appeal were pressed there was danger of their losing the whole. In these circumstances we, the Court, also considered the terms to be for the benefit of the minors and accordingly granted the leave sought. The result was that while we delivered judgment disposing of all but one of the issues raised in the appeal, we merely mentioned the remaining issue without deciding it, and we made a consent decree in accordance with the terms of the compromise. There the matter rested for some months. Then, suddenly all the appellants but one including the guardian appellant brought a suit on the Original Side of this Court repudiating the compromise and asking that it be set aside. In the verified plaint they stated that they had not been informed of its terms, that they had not authorised them, that they were not for the benefit of the minors and so on. When these allegations were brought to our notice, we examined the record of the appeal and found that we had been misled by an affidavit into believing that the compromise had the authority of the guardian as well as of the other appellants. In the light of the statements in the abovementioned plaint, we had no option but to set aside the so-called consent decree, recall the judgment and remit the parties to the position which they occupied just before judgment had been delivered. We then heard the parties again on the issue left undisposed of in our judgment of 29th January 1943, and set down the case for final judgment. The subsequent events arising out of an application under Order 23, Rule 3, have been dealt with in a separate order of today and need not be repeated. We are now delivering our final judgment in the appeal.

2. This appeal is by the defendants in a suit for a declaration that a certain order made by the Board of Revenue, Bengal, on 13th September 1937 was ultra vires and void. The facts are briefly these: The revenue paying estate bearing touzi No. 655 of the Birbhum Collectorate comprises four separate accounts, viz., Nos. 1, 2 and 3 and the "ejmali" or residuary account. We are concerned in this case mainly with separate account No. 2 comprising 6 annas odd of the estate. The annual revenue payable in respect of this separate account is Rs. 1491-9-4 in four kists of instalments, namely, Rs. 21-12-2 in respect of the quarter 29th March to 28th June, for which the latest date of payment is 28th June (1st or June kist); Rs. 89-13-3 in respect of the quarter 29th June to 28th September, for which the latest date of payment is 28th September (2nd or September kist); Rs. 624-6-7 in respect of the quarter 29th September to 12th January, for which the latest date of payment is 12th January (3rd or January kist); and Rs. 755-9-4 in respect of the quarter 13th January to 28th March, for which the latest date of payment is 28th March (4th or March kist).

3. We are mainly concerned here with the second kist of the year 1936-37 amounting to Rs. 89-13-3 for which the latest date of payment was 28th September 1936. There are nine cosharers in this separate