MEIS SINGHO v. JOSIE PERERA et al

043-NLR-NLR-V-31-MEIS-SINGHO-v.-JOSIE-PERERA-et-al.pdf


1929.
( 168 )
Present : Fisher C.J. and Drieberg J.
MEIS SINGHO v. JOSIE PERERA et al.
116—D. C. (Inty.) Kurunegala, 3,247.
Compromise—Agreement filed in Court but not notified in presence of
parties—Binding character—Civil Procedure Code, 8. 408.
Where an agreement, entered into between parties to testa-mentary proceedings, was filed of record but was not notifiedto Court in the presence of the parties as required by section .409of the Civil Procedure Code,—
Held, that the Court was not bound to enter decree in accordancewith the terms of the agreement.
Such an agreement would not be bad because it was notnotarially executed.
^^PPEAL from an order of the District Judge of Kurunegala.
H. V. Perercu, for petitioner, appellant.
N. E. Weerasooria, for respondents.
September 16, 1929. Drieberg J.—
Simon Appuhamy died intestate on August 6, 1926, leavingas his heirs his widow, Egi Nona, his brother, the appellant, andthree sisters. The appellant applied for letters of administrationon May 26, 1927, and on June 29 the widow and sisters agreedto the appointment of the appellant as administrator. In hisinventory filed with his application for administration the appellantshowed that the debts of the-estate exceeded the assets by Rs. 44.94.
In the record there is a document “ A ” dated August 24, 1927;it is an agreement by the widow and sisters of the intestate thatthe appellant should pay all the debts due by the intestate andbecome entitled to all the property, movable and immovable,of the estate, and that when all those debts were t&schaxged theyshould transfer their shares of all the property to the appellant;the estate consisted mainly of lands and interests in leased lands.
At this time the official assessment of the estate .was being made,and the valuation dated August 31, 1927, was submitted, whichshowed that the assets exceeded the debts by Rs. 975, and onDecember 2, 1927, the appellant filed an amended inventory onthis valuation.
Egi Nona diedin November,1927, and therespondents tothis
appeal, who areher sisters, were substitutedin her place.In
November, 1928,they applied,for a judicialsettlement ofthe
estate; they took objection tomatters in theaccounts filedand
they attacked the agreement “ A ’* on the following grounds:
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that it was not binding on the widow or her heirs, that it was notvalid ih law, that it was obtained by fraud, that the appellanthad taken advantage of his position as administrator, that EgiNona did not have independent advice, and that the administratorby it undertook to do no more than he was bound to do. Nocounter affidavit was filed by the appellaut.
When the matter came up for inquiry no evidence was led byeither side. For the appellant objection was taken that therespondents had no status to apply for a judicial settlement, thatthe appellant had made payments in pursuance of the agreement,and that it was not possible for the parties to the agreement towithdraw from it. In support of the last point the appellantrelied on the case of Silva v. Hadjiasr,l to which I shall refer later.The respondents contended in addition to what was stated in theiraffidavit that the agreement was void as it was not executed inthe manner required by Ordinance No. 7 of 1840.
The learned District Judge held that, the respondents wereentitled to apply for a judicial settlement and that the agreementwas not binding as it was not notariallv executed and no decreehadbeen entered on it. Healsoreferred to the fact thatEgi
Nona entered into the agreement under the mistaken belief thatthe estate was insolvent. The appellaut appeals from this judgment.
Thecase for the appellant*wasthat the agreement wasone
which was governed by the provisions of section 408 of .the CivilProcedure Code. Section 408 provides that—
If an action be adjusted wholly >r in part by any lawful agree-ment or compromise,orif the defendant satisfythe
plaintiff in respect to the whole or any part of the matterof the action, such agreement, compromise, or satisfactionshall be notified to the Court by motion made in presenceof, or on notice to, all the parties concerned, and theCourt shall pass a decree in accordance therewith, so faras it relates to the action, and such decree shall be final so faras relates to so much of the subject-matter ofthe
action as is dealt with by the agreement, compromise,or satisfaction/'
Beyond the bare fact that the agreement is in the record thereis nothing to show that it was notified to the Court ait the time,and no reference appears to it until the respondents came inafter the death of Egi Nona.
The agreement does not bear on it any endorsement by theSecretary of the Court or the Judge. There is no entry relatingto it on August 28, 1927, in the journal, nor on the next date,September 2, 1927, when an entry appears relating to the Crownvaluation.
1929.
Drikberg J.
Mets Singhov. JoaiePerera
1 {1914) 3 Bal. Notes 7.
( 170 )
1929.
Drxebbrg J.
Meis Singhov. JosiePerera
The next journal entry, on September 26, 1929, is as follows: —
“ Messrs. Daniel for petitioner; to be called; inventory; minutesof consent filed; inventory 30.10.” It does not appear whatthis minute of consent is, and there is nothing to indicate thatit is this agreement.
. Mr. Perera argued that even if the agreement was not formallypresented to Court by the parties it could be given effect to latereven if one of them, withdrew from it. He relied on the Indiancase of Brojodurlabfo Singha v. Ramanath Ghose * where a majorityof the Full Court held that where a compromise or adjustmentof an action was made out of Court it could be recorded and decreeentered on it though one party to it resiled from the agreementbefore it was presented to Court and objected to decree being enteredon it. This was a decision on section 375 of the Code of 1882,the wording of which on this point is somewhat different , to section408 of our Code. Section 375 provides that ” such agreement,compromise, or satisfaction shall – be recorded and the Court shallpass decree in accordance therewith ”; while our Code providesthat “ the agreement, compromise, or satisfaction shall be notifiedto Court by motion made in presence of, or on notice to, all partiesconcerned.”
This ruling was approved of by Jayewardene J. in Suppiah v.Abdulla,z but the question there arose in a different form. Theplaintiff in .that case sued the defendant for arrears of rent and tormoney advanced to the defendant; while this action was pending,but before answer was filed, the defendant prosecuted the plaintifffor criminal trespass and other offences. The criminal case wassettled, the terms being that the defendant was to be allowedoccupation of the house for some time, that he was to pay therent due, and that the plaintiff was to withdraw the action withoutcosts. The defendant paid into Court the arrears of rent due.The plaintiff insisted on proceeding with the action. It appearsthat the agreement in the Police Court case did not state at whatrate the rent was to be computed and there was disagreementas to what the rental was. The trial Judge held that the agreementwas not binding as it had not been placed before the Court in whichthe action was brought, and the defendant being in default in filinganswer, he entered judgment for plaintiff as claimed. Jayewardene
J.held that the agreement was binding and sent the case backfor .the Judge to inquire into the settlement and, I take it, theterms of .the settlement, for the agreement in the Police Courtdid not state the aggregate amount due or the amount of monthlyrent.
The Indian case I have referred to was approved by de Sampayo J.in Silva v. Hadjiar (supra), but it was not. necessary for the purposeof that case. In that case a writing embodying the settlement1 24 Calcutta 908.* (1924) 26 N. L. R. 79.
( 171 )
was submitted as a motion in Court by Counsel on both sides andorder was made that decree be entered in accordance with its terms.It was directed that the case was to be mentioned on a later datefor a fair copy of the draft to be submitted. When the case wascalled for this purpose Counsel for the defendant said that his clientrefused to sign it and be bound by it. The Court entered judgmentin terms of the agreement, and this order was affirmed in appeal.Sir Alfred Lascelles C.J. held that the matter was concluded whenCounsel stated the agreement to Court and that all that was leftto be done was the purely ministerial act of furnishing the Courtwith a fair copy of the agreement. The case was not one of arepudiation of an agreement before it was presented to the Courtas such, and I cannot regard the reference by de Sampayo J.to the Indian case as an assent to the ruling in it and as conflictingwith his judgment in Bamyah PuiUe v. Mohideen.1 There a casewas put off for settlement and when the parties appeared in Courtthe defendant said that the matter had been settled, but. this wasdenied by the plaintiff. The Court then held an inquiry as towhether there had been a settlement. De Sampayo J. said:“ The duty of the Court in those circumstances was obvious.It was either .to enter judgment for the plaintiff as agreed onNovember 3 or sweep aside all that related to an attempt at asettlement of the case and to hear the case and give judgment.The Court, instead of doing so, entered upon a lengthy inquiryas to whether there was a settlement or not. This is an impossibleprocedure. The plaintiff, even if he was present at the discussionof the terms of a settlement, might well have withdrawn from thecompromise. As I said, the Court can only act upon settlementwhich has not only been mutually arrived at but is stated to theCourt by both parties. If one party denies, though falsely, thatthere was any settlement, there is an end of the matter and thecase must take its ordinary course.”
In my opinion this is the right view of section 408, and it cannotbe said that the agreement, embodied in ” A is one which wasstated to Court by both parties as an agreement on which theCourt was to act, and the Court is not obliged to enter decree inaccordance with it.
If, however, the agreement was so presented it would not be badbecause' it was not. notarially attested.
Both parties must be regarded as having put before the Courtat the inquiry their whole case, and this being so the appellanthas foiled in matters in which the burden of proof was on him.The widow was not represented by a Proctor, she was given to
1 (1924) 5 O. L. Ree. 204.
1929.
Drikberg 3.
Meie Singhov. JosiePerera
( 172 )
1929.
Dmeberg J.
Meia Singhov. Jo«tePerera
understand that she was surrendering nothing as the estate wasinsolvent, the appellant was in a fiduciary capacity in relationto her, and it was incumbent on him to prove the circumstancesin which she agreed and that she was fully aware of what she wasagreeing to.
The appeal is dismissed with costs.
Fisher C.J.—I agree.
Appeal dismissed.